Citation Nr: 21066984 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 11-16 714 DATE: November 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940; more than a year has lapsed since the initial request, and he has not submitted the requested evidence and information. CONCLUSION OF LAW By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate his claim of TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 5107, 7105(d)(5); 38 C.F.R. § 3.158 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 2000 to January 2002. The Veteran testified before the undersigned Veterans Law Judge in a May 2014 video conference hearing. This matter was remanded by the Board in August 2014, November 2017, and December 2020 for additional development. The Board notes that a June 2021 rating decision granted service connection for left upper extremity radiculopathy. As this claim for service connection has been granted in full, it is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to a TDIU. When evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). The Veteran contends that his service-connected disabilities cause him to be unable to maintain employment. The Board initially remanded the Veteran's claim for TDIU in August 2014 for additional development. In August 2015, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The document states that the Veteran last worked full-time in November 2012 and became too disabled to work in November 2012. However, medical treatment records and VA examinations note that the Veteran is self-employed doing computer repair work and is a licensed realtor. See VA Examination, January 2012; see also Medical Treatment Records, May 2016, and May and August 2018. With the benefit of the doubt doctrine in mind, the Board remanded this claim in November 2017 and December 2020 for additional development, specifically seeking information on the Veteran's past and current employment situation. Since the Board remanded the issue, VA has attempted to obtain the Veteran's employment records several times. See Appeal Process Request Letter, December 2020; Subsequent Development Letter, May 2020 and May 2021. To date, the Veteran has not submitted a completed VA Form 21-8940 or comparable statement containing the requested information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the Veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since she became too disabled to work. The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Here, VA requested in May 2020 that the Veteran complete and submit an updated Form 21-8940. Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim. As such, the Board finds that the claim of entitlement to a TDIU must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.