Citation Nr: 21064222 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 12-22 820 DATE: October 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Service connection has been established for posttraumatic stress disorder (PTSD) rated as 70 percent disabling; tachycardia rated as 60 percent disabling; a left eye corneal scar rated as 10 percent disabling; lumbar strain rated as 10 percent disabling; and hypertension rated as noncompensable. The Veteran has a combined service connected disability rating of 90 percent. 2. The Veteran has reported being currently employed as an assistant manager at a car wash. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 38 C.F.R. §§ 3.340, 3.341 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 2002 to June 2006. He served in Iraq. TDIU Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to make the Veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. Total disability ratings for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Service connection has been established for PTSD rated as 70 percent disabling; tachycardia rated as 60 percent disabling; a corneal scar rated as 10 percent disabling; lumbar strain rated as 10 percent disabling; and hypertension rated as non-compensable. The Veteran has a combined service connected disability rating of 90 percent. Therefore, the Veteran meets the schedular criteria for a TDIU under the provision of 38 C.F.R. § 4.16(a). The report of an October 2020 Department of Veterans Affairs (VA) psychiatric examination states that the Veteran indicated that he had recently been hired as an assistant manager at a car wash after having been unemployed for two weeks. He clarified that he had been previously employed at a Target store for two years. In May 2021, the Board of Veterans' Appeals (Board) remanded the issue of entitlement to a TDIU so that the Veteran could be requested "to complete a VA Form VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment and financial information." In May 2021 and July 2021, the Agency of Original Jurisdiction wrote to the Veteran and requested that he complete a Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940. A response to the Agency of Original Jurisdiction's requests has not been received from the Veteran. The requests were sent to the Veteran's address of record and were not returned by the United States Postal Service (USPS) as undeliverable. (Continued on the next page) The Board notes that VA's duty to assist the Veteran in the proper development of his case is "not always a one way street" and the Veteran must be prepared to cooperate with the VA's efforts to obtain all relevant evidence. Olson v. Principi, 3 Vet. App. 480, 483 (1992); See also Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran reported to a VA examiner that he was currently employed as an assistant manager at a car wash. Such employment history is arguably substantially gainful in nature. The Board and the Agency of Original Jurisdiction have attempted to obtain further clarification from the Veteran as to the specific details of his reported employment. Unfortunately, a response from the Veteran has not been received. In the absence of any evidence establishing that the Veteran's reported employment is either marginal or sheltered in nature, the Board concludes that entitlement to a TDIU must be denied. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.