Citation Nr: 21075051 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-44 028 DATE: December 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran was unable to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to September 1972. This appeal comes before the Board of Veterans' Appeals (Board) and stems from the Veteran's appeal for a higher rating for his left shoulder disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In its June 2021 decision, the Board denied the increased rating claim for a left shoulder disability and remanded the issue of entitlement to a TDIU for additional evidentiary development. At that time, the Agency of Original Jurisdiction (AOJ) was asked to provide the Veteran with an Application for Increased Compensation based on Unemployability (VA Form 21-8940) and Request for Employment Information in Connection with a Claim for Disability Benefit (VA Form 21-4192), and to provide the Veteran notice on how to substantiate his claim. The AOJ provided the appropriate notice in a June 25, 2021 correspondence to the Veteran and his representative. Unfortunately, the Veteran did not submit a completed VA Form 21-8940, and the case was returned to the Board for further appellate consideration. To date, the Veteran has not provided any additional information on his employment status. In fact, there is very little information in the record about the Veteran's work history and the circumstances of his employment. While failure to provide these forms is not fatal to a TDIU claim, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU. Notwithstanding the foregoing, the Board finds it unnecessary to remand this matter again simply to afford the Veteran another opportunity to complete the form. Irrespective of what information the Veteran would be able to provide, the Board believes that there is sufficient evidence in the record to adjudicate the claim on the merits. Further, there is no evidence in this record that notice was not provided to the Veteran. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Currently, the Veteran's total combined disability rating is 70 percent effective March 10, 2014. The Veteran is currently service connected for the following: Posttraumatic stress disorder (PTSD), rated as 50 percent disabling from March 10, 2014. Left shoulder disability, rated as 20 percent disabling from January 28, 2013. Right shoulder disability, rated as 10 percent disabling from January 28, 2013. Tinnitus, rated as 10 percent disabling from January 28, 2013. Hearing loss, rated as 0 percent disabling from January 28, 2013. Based on the foregoing, the Veteran meets the schedular requirement for a TDIU. See 38 C.F.R. § 4.16 (a). Therefore, the question for the Board is whether the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. The Veteran underwent a VA examination in November 2013 and the VA examiner noted the Veteran's bilateral shoulder condition limits him in employment with regard to lifting. A November 2013 VA examiner noted the Veteran's hearing loss and tinnitus cause the Veteran to have difficulty understanding speech during noise and in crowds. The Veteran underwent a VA examination in May 2014. The Veteran reported that he had been working as a school bus driver for 24 years and at that time was part time. A November 2019 VA examiner noted the Veteran's bilateral shoulder disability caused reduced endurance for lifting, pushing, pulling, and carrying greater than 40 pounds. The November 2020 VA examiner for the Veteran's bilateral shoulder disability noted the Veteran is unable to work as a truck driver because he has difficulty lifting his left arm up. An August 2021 VA treatment note reported the Veteran stays active as he likes to go for walks in the mornings and is still working as a bus driver. Based on the limited evidence of record, the Board finds entitlement to a TDIU is not warranted. The evidence reflects the Veteran has been continuously employed throughout the period on appeal. In addition, while the VA examiners of record have noted limitations as a result of the service-connected disabilities, none of the examiners have concluded that the Veteran is completely unable to obtain and maintain employment. For the foregoing reasons, the claim for entitlement to a TDIU rating must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.