Citation Nr: 21074693 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-42 510 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDING OF FACT In October 2019, August 2020, and May 2021, 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 October 2019 request, which was sent to the Veteran's current address of record. To date, he has not completed and returned the form or provided the equivalent information. CONCLUSION OF LAW Given the Veteran's failure to submit an updated TDIU application, the criteria for dismissal, on the basis of an abandonment of the TDIU claim, have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2003 to August 2004, May 2007 to May 2008, and from March 2009 to May 2012. This matter originally came before the Board of Veterans' Appeals (Board) from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter has previously been remanded by the Board for further development, most recently in May 2021. This matter is again before the Board. Entitlement to a total disability rating based on individual unemployability (TDIU) When evidence is requested, in connection with an original claim or a claim for increase, and it is not submitted within one year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158. As noted in the Board's May 2021 remand, the evidence of record is insufficient to allow VA to determine whether and when during the period on appeal the Veteran was unemployed. When the Veteran filed his original VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in May 2013, he reported that he last worked fulltime in May 2012. However, during a July 2017 VA PTSD examination, it was noted that he reported discontinuing his employment with a waterproofing and restoration company in August/September 2016. Additionally, evidence in the Veteran's VA treatment records shows several differing accounts of when he was last employed. In October 2019, in accordance with the remand issued by the Board in March 2019 and VA's duties to notify and assist, VA sent the Veteran a VA Form 21-8940 in order to obtain the information needed to adjudicate his entitlement to a TDIU. See October 2019 Development Letter. The Veteran did not complete and return the form or provide the equivalent information. In August 2020, he was again invited to submit the VA Form 21-8940. See August 2020 development letter. The Veteran again did not complete and return the form or provide the equivalent information. When this matter was last before the Board in May 2021, the Board remanded the claim and directed the AOJ to ask the Veteran again to complete and return a VA Form 21-8940, providing a summary of any employment engaged in since May 2012. The Board noted that the Veteran may not have fully understood the importance of completing and returning another VA Form 21-8940. The Veteran was reminded that VA's duty to assist in the development and adjudication of his claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). The Veteran was further cautioned that he must respond with specificity to VA's requests for additional information, otherwise, his claim may be denied. See May 2021 BVA Decision. On May 20, 2021, pursuant to the Board's remand directives, the Veteran was sent a letter requesting that he complete an enclosed VA Form 21-8940. He was also instructed to include, if possible, a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, completed by each of the employers identified on the VA Form 21-8940. See May 2021 Subsequent Development Letter. To date, he has not completed and returned the forms or provided the equivalent information. For the purposes of analyzing abandonment under 38 C.F.R. § 3.158(a), the Board considers the VA's October 2019 request that he complete and submit VA Form 21-8940 to be the starting point for the one year period considered by the regulation. Since the October 2019 request, the AOJ has made two additional attempts, in August 2020 and May 2021, to request that the Veteran complete and submit VA Form 21-8940. The Board assumes that the Veteran is in receipt of these correspondences, as there is no evidence in the electronic claims file that any notices, requests, or Board decisions mailed to the Veteran's active address from October 2019 forward were ever returned to VA as undeliverable. 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 October 2019 request for such information. The Veteran was provided an additional opportunity to submit the requested forms in August 2020 and May 2021, yet he still has not responded. To the extent that the Veteran may not have fully understood the importance of completing and returning another VA Form 21-8940, he is assumed to be in receipt of the May 2021 Board decision, which emphasized the importance of the Veteran responding to VA's request for information. 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 employment history. The controlling regulation in such circumstances is clear and unambiguous; it mandates that the claim "will be considered abandoned." See 38 C.F.R. § 3.158(a). 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). A. MARSH II Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.