Citation Nr: 21067298 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 08-36 010 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 preponderance of the evidence shows that the Veteran's service-connected disabilities do not preclude her from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1999 through September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2010. These matters were remanded by the Board in June 2010, July 2013, and January 2017, February 2019, and July 2020 for additional development. In a February 2019 decision, the Board denied entitlement to a rating in excess of 20 percent for a cervical spine disability and entitlement to a TDIU. The Veteran appealed the Board's February 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which in a January 2020 order, granted the parties' joint motion for remand, vacating the Board's February 2019 decision and remanding the case for compliance with the terms of the joint motion. In the January 2020 joint motion for remand, the parties determined that the Board erred in providing an inadequate statement of reasons or bases for its decision, as it did not adequately address relevant evidence contained in the July 2010 Compensation and Pension (C&P) examination. Thus, the Board remanded these matters in July 2020 for compliance with the Court's January 2020 order granting the parties' joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Most recently, the Board remanded this matter in May 2021 for additional development. 1. Entitlement to TDIU. The Veteran's appeal has been pending since July 2007 and the Veteran contends that her service-connected disabilities cause her to be unable to maintain employment. Since July 9, 2007, the combined rating for the Veteran's service-connected disabilities is 90 percent; effective July 29, 2008, the combined rating for the Veteran's service-connected disabilities is 100 percent. The Veteran contends that her service-connected cervical spine disability causes her to be unable to maintain employment. The Board initially remanded the Veteran's claim for TDIU in July 2020 for additional development. In September 2020, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. However, the three-page document of record is missing the second page, which would detail the Veteran's work history. Although the document states that the Veteran last worked full-time on April 1, 2013, the Veteran also stated that she became too disabled to work on July 20, 2014. Further, medical treatment records and a VA examination note that the Veteran was working occasionally as a Zumba instructor between 2013 and 2015. With the benefit of the doubt doctrine in mind, the Board remanded this claim in May 2021 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 Custom 5103 Notice, May 2021; Subsequent Development Letter, August 2020 and May 2021. In response, the Veteran's representative submitted a waiver of the 30-day period following the August 2021 Supplemental Statement of the Case (SSOC). As the Veteran's representative, the Veterans of Foreign Wars acknowledges in September 2021 written argument, 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 her from securing or following a substantially gainful occupation, and the treatment she has received for the disability(ies). The veteran is further asked to supply information about her employment, including dates when her 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 her 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 her claim of entitlement to a TDIU rating. Although the record contains some information regarding her employment history, the Veteran has not provided all of the information necessary to adjudicate her 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. Hence, the Board has no recourse but to conclude that because of her failure to cooperate the Veteran has resulted in the Board's inability to adjudicate the merits of her 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.