Citation Nr: 21069414 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-50 369 DATE: November 18, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disorders is denied. FINDING OF FACT The Veteran's service-connected disorders did not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria to establish a TDIU due to service-connected disorders have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from December 1956 to November 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the San Juan, Puerto Rico Regional Office (RO). In June 2021, the Board found that a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) was raised and remanded the claim for further development. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). TDIU TDIU may be assigned, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities include bilateral hearing loss rated 60 percent disabling from October 26, 2016 and continuing thereafter; left foot disorder rated 30 percent disabling from October 26, 2016 and continuing thereafter; tinnitus rated 10 percent disabling from October 26, 2016 and continuing thereafter; and left foot scar rated noncompensable from October 26, 2016 and continuing thereafter. The Veteran has met the schedular criteria under § 4.16(a) effective October 26, 2016. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. Thus, the central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA has a duty to notify claimants of information and/or evidence that is necessary to substantiate a claim. 38 C.F.R. § 3.159(b)(1). The information and evidence that the claimant is informed that the claimant is to provide must be provided within one year of the date of the notice. Id. If the claimant has not responded to the notice within 30 days, VA may decide the claim prior to the expiration of the one-year period based on all the information and evidence of record. Id. VA has a duty to assist claimants such as making as many requests as are necessary to obtain records in the custody of a Federal department or agency, to include the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). A September 2015 VA treatment record reflects the Veteran's report of working in a grocery store and that he was retired. The June 2017 VA examiner indicated that the Veteran's service-connected left foot disorder impacted his ability to work due to trouble with standing, walking, sitting, sleeping, and climbing stairs. In June 2021, the Board remanded the claim for due process development for the Veteran to submit a VA Form 21-8940, Application For Increased Compensation Based On Unemployability and for the RO to obtain relevant SSA records. In mid-July 2021, VA requested the Veteran's SSA records, notified the Veteran on how to substantiate a claim for a TDIU, and provided the Veteran with a VA Form 21-8940, Application For Increased Compensation Based On Unemployability. In late-July 2021, the SSA responded that no records existed concerning the Veteran. Additionally, the Veteran did not submit the VA Form 21-8940 or provide any information as to his employment status. As noted, the SSA indicated that no records existed concerning the Veteran and VA notified the Veteran on how to substantiate a claim for a TDIU and provided the Veteran with a VA Form 21-8940. However, the Veteran did not submit the form or provide any information as to his employment status. A claimant has the responsibility to present and support a claim for benefits under laws administered by VA. 38 U.S.C. § 5107(a). A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet.App. 214, 224 (2000); see also Hurd v. West, 13 Vet.App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). Because the Veteran did not submit the VA Form 21-8940 or provide information as to his employment status, probative evidence was not developed. On this record, the claim will be denied. Therefore, a TDIU is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.