Citation Nr: 21064298 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 09-13 127 DATE: October 19, 2021 THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to a TDIU is dismissed. FINDING OF FACT In both September 2016 and in July 2020 (pursuant to the Board's remand instructions), the Veteran was asked to complete and submit an updated VA Form 21-8940, "Application for Increased Compensation Based on Unemployability" to secure information necessary to properly adjudicate his claim for a TDIU. More than one year has passed since VA's July 2020 request, which was sent to the Veteran's current address of record. He has not provided the completed form. CONCLUSION OF LAW By failing to submit an updated VA Form 21-8940 to obtain critical information needed to properly adjudicate his claim for a TDIU within one year from the VA's July 2020 request, the Veteran has abandoned his claim, and his appeal in this matter must be dismissed. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 3.158(a) (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to February 1994. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the RO that granted service connection for residuals of right knee anterior cruciate ligament reconstruction, evaluated as 0 percent disabling effective October 25, 2007. The Veteran timely appealed for a higher initial rating. In August 2012, the Veteran testified during a hearing before the undersigned at the RO. In October 2012, the Board remanded the matter of an increased disability rating for right knee anterior cruciate ligament reconstruction for additional development. In a September 2015 decision the Board assigned a 20 percent disability rating for residuals of right knee anterior cruciate ligament reconstruction and found that the Veteran had put forth statements indicating that he believes his service-connected disabilities render him unemployable. Accordingly, in light of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working), the Board characterized the issues on appeal so as to include a claim for entitlement to TDIU. The Board then remanded the issue for further development in September 2015. Again, this matter was remanded in July 2020 at which time it was remanded for further development. This matter was last before the Board in June 2021 at which time it was again remanded for further development. Entitlement to a TDIU is dismissed. In its September 2015 decision, and more recently in July 2020, the Board remanded the matter so that the Veteran could be sent a Veteran's Application for Increased Compensation Based on Unemployability form, or a VA-Form 21-8940. The Veteran was sent the VA-Form 21-8940 along with instructions as to how to substantiate a claim for a TDIU in September 2016 and July 2020 correspondences. However, the Veteran has never submitted the requested form. In the September 2015 decision, the Board directed the RO to schedule the Veteran for an examination with an appropriate medical professional who was qualified to offer an opinion regarding the functional impairment of the Veteran's service-connected disabilities with regard to his employment. The Board instructed the examiner to interview the Veteran as to his employment and education history. In proffering an opinion, the examiner was directed to address the Veteran's functional limitations due to his service-connected disabilities, jointly-(i.e., residuals of right knee anterior cruciate ligament reconstruction, residuals of cold weather injury of third and fourth fingertips of right hand, residuals of cold injury to third and fourth and fifth fingertips of left hand, Achilles tendonitis of right ankle, and Achilles tendonitis of left ankle), as they may relate to his ability to function in a work setting and to perform work tasks. The examiner was directed that he must specifically take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The examiner was asked to set forth a rationale for the conclusions reached. The Veteran was afforded a VA examination and medical opinion in March 2017. The VA examiner noted: "The 'right knee anterior cruciate ligament reconstruction' does not appear to be an accurate diagnosis, but the veteran does have evidence of a right knee ACL injury which causes some mild instability, and this was addressed on the knee dbq. Both the right knee condition and the bilateral achilles tendonitis would prevent the veteran from working in a heavy lifting position, or in a position which requires prolonged standing or walking. The veteran describes more diffuse involvement of the fingers due to cold injury than was mentioned on the Remand, but all fingers have been examined regardless. It is not felt that the veteran's cold injury residuals prevent him from working in a sedentary capacity such as he was employed in in the early 2000's before being laid off (accounting type position using his Associates degree in accounting and his Bachelor's degree in Computer information systems)." However, the Board found in its July 2020 decision that the opinion did not address the Veteran's functional limitations due to his service-connected disabilities, jointly, as specified in the September 2015 Board remand directives. Specifically, we found that while the examiner addressed the functional impact of each disability, he does not address the combined impact of the Veteran's service-connected disabilities. As the Veteran failed to submit a proper VA-Form 21-8940, the RO did not refer the claim to the Director of Compensation and Pension Service and continued a denial of benefits sought. See December 2019 Supplement Statement of the Case (SSOC). In its July 2020 decision, the Board found that a remand was necessary to afford the Veteran an addendum opinion which complied with the September 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In its July 2020 remand directives, the Board asked the examiner to address the Veteran's service-connected disabilities, jointly, on his ability to obtain and maintain gainful employment. In pertinent part, the Board instructed the examiner to "specifically take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities." The Veteran was afforded new VA examinations for his ankle, knee, and cold injury disabilities in February 2021. An opinion accompanied these examinations. The examiner found the Veteran's service-connected disabilities, when considered jointly, did not preclude him from gainful employment. The examiner wrote: "No prolonged sitting, standing, lifting, walking long distance, manual or physical labor. No repetitive heavy lifting, no strenuous activity or exercise, no repetitive use of stairs. No outdoor work in cold weather conditions. No repetitive use of hand tools in cold weather conditions. Sedentary work is unaffected. The veteran's frostbite residuals are relatively mild. All fingertips are intact. The veteran's R knee findings limit heavy manual or physical labor. The sum total of these injuries do not preclude meaningful employment as the veteran can pursue sedentary work or work that is not physically strenuous." However, in the June 2021 Board decision, the Board observed that the opinion did not discuss all of the Veteran's service-connected disabilities. To wit, there was no discussion of his ankle disabilities in relation to his other service-connected disabilities. The Board explained that while there was a separate medical opinion regarding the Veteran's ankle disabilities and their impact on his employment, this opinion did not consider all service-connected disabilities jointly, either. Additionally, the Board found the opinions did not address the Veteran's level of education, special training, and previous work experience as required by the July 2020 Board remand directives. As the Veteran failed to submit a proper VA-Form 21-8940, the RO once again did not refer the claim to the Director of Compensation and Pension Service and continued a denial of benefits sought. See March 2021 SSOC. For the reasons noted above, the Board found in June 2021 that a remand was necessary to afford the Veteran an addendum opinion which complies with the July 2020 remand directives. See Stegall, 11 Vet. App. 268 (1998). The Veteran was also reminded that the "duty to assist" was not a one-way street. He was informed that if he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). While the Veteran was afforded an additional medical opinion in regards to his claim for a TDIU in August 2021, the Board will not discuss such, as the Veteran again failed to submit a proper VA-Form 21-8940. The critical facts at this stage are clear-the Veteran has not provided an updated VA Form 21-8940 necessary for VA to properly adjudicate his claim for a TDIU and more than one year has passed since the VA's July 2020 request for such information. Indeed, as noted above, the Veteran has been afforded several such notices to submit the form, yet he still has not responded. The Board finds that the Veteran's failure to cooperate with VA's efforts to secure necessary evidence in this matter frustrates VA's attempts to ascertain his complete educational and employment history. As a direct consequence of his failure to cooperate, the Board is presented with an incomplete picture that is inadequate for a proper merits adjudication of this matter. The controlling regulation in such circumstances (of which the Veteran was expressly informed) is clear and unambiguous; it mandates that the claim "will be considered abandoned." See 38 C.F.R. § 3.158(a) (2021); see Hurd, 13 Vet. App. at 452. Notably, the Court has held that VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has knowledge of such regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 231 (2012). (Continued on next page.) Hence, the Board has no recourse but to conclude that the Veteran has abandoned his claim, and consequently his appeal in this matter. As the Veteran's claim for a TDIU is abandoned, there is no allegation of error in fact or law for appellate consideration in this matter; accordingly, this appeal must be dismissed. 38 U.S.C. § 7105(d)(5) (2012). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.