Citation Nr: 21070633 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-03 816 DATE: November 24, 2021 THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to a TDIU is denied. FINDING OF FACT By September 2018 and August 2020 letters, the Veteran was asked to provide information necessary to adjudicate his TDIU claim, to include submitting a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability; more than a year has lapsed since the request, and neither the Veteran nor his representative has submitted the requested evidence and information. CONCLUSION OF LAW By failing to submit requesting information and/or forms for critical evidence needed to properly adjudicate his claim for a 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) (2012); 38 C.F.R. § 3.158(a) (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Marine Corps from February 1995 to February 1999. The instant matter is on appeal from a March 2010 rating decision. The Board previously remanded this issue in August 2017, and then in August 2020 to obtain medical opinions addressing the severity of the Veteran's service-connected disabilities, as well as refer the claim to the Director of the Compensation Service for extraschedular consideration. Again, in June 2021, the Board remanded the matter, as the issue had not been referred to the Director of the Compensation Service for extraschedular consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a TDIU is denied. As will be explained below, the Board observes that VA's duty to assist has been frustrated in this case by the Veteran's failure to participate in the development of his claim. Specifically, if the Veteran believes he is entitled to a TDIU, he must at least fulfill his minimal obligation of submitting employment information critical to the resolution of his case. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether an individual is unable to follow a substantially gainful occupation, VA must consider a number of factors, including the veteran's level of education, special training, and previous work experience, but not his or her age or any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, consideration may be given to the frequency and duration of periods of incapacity or time lost from work due to disability, the Veteran's employment history and current employment status, and the Veteran's annual income from employment, if any. Id. Here, the Veteran has a combined rating of 30 percent due to service-connected disabilities of right shoulder degenerative arthritis, evaluated as 20 percent disabling; upper right extremity radiculopathy, evaluated as 10 percent; and hearing loss and scar disabilities, each evaluated as noncompensable. Thus, the minimum percentage requirement for a TDIU set forth in 38 C.F.R. § 4.16(a) have not been met. However, in an August 2017 decision, the Board found that the issue of a TDIU had been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The August 2017 Board remand directed the RO to request that the Veteran complete and return a TDIU claim form, which is VA Form 21-8940, so information could be obtained concerning his work background, education, and training. In September 2018, the RO sent the Veteran a letter requesting that he submit VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, that form to begin processing his TDIU claim. The Board remanded the matter in January 2020, finding it was inextricably intertwined with the issues of increased ratings for his right shoulder disabilities. The Board found in its August 2020 decision that the evidence indicated that the Veteran may be unable to work due to his service-connected disabilities. As the schedular criteria for TDIU are not met, the Veteran's claim for TDIU was remanded to the AOJ to be referred to VA's Director of Compensation Service for extraschedular consideration. Additionally, the Board directed the RO to ask the Veteran to complete a TDIU claim form, VA Form 21-8940, so information could be obtained concerning his work background, education, and training. In August 2020, the Veteran was sent a letter which specifically requested that he complete and return an enclosed Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. Finally, in June 2021, the Board remanded the matter once again in order refer the matter to the Director of Compensation Service for extraschedular consideration. The Director rendered a negative decision in September 2021 and found that the Veteran's service-connected disabilities did not render him unable to obtain or maintain gainful employment. To date, neither the Veteran nor his representative has submitted a VA Form 21-8940 or any comparable statement containing the requested employment 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. The 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 he became too disabled to work. The information provided by a Veteran on a VA Form 21-8940 can be used by the RO to submit requests for his previous employers to complete a VA Form 21-4192. As such, this information is critical to the resolution of the Veteran's TDIU claim. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A Veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, 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 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, and particularly since the August 2020 Board remand. Accordingly, 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). 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 appeal must be denied. 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.