Citation Nr: 21075764 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-03 331A DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran's service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2005 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously remanded by the Board in February 2021 in order to obtain Social Security Administration records, and to request that the Veteran complete an updated VA Form 21-8940. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). TDIU Criteria VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one service-connected disability, it must be rated at 60 percent disabling or more. If there are two or more disabilities, there must be at least one disability rated 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363 To evaluate a TDIU claim, the key consideration is whether a veteran is incapable of performing the physical and mental acts required by employment, not whether a veteran is currently working or whether a veteran can find a job. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends his service-connected disabilities prevent him from maintaining or obtaining a substantially gainful occupation. The Veteran is service-connected for posttraumatic stress disorder (PTSD), rated at 70 percent disabling effective September 14, 2010; residuals of left shoulder dislocation, rated at 20 percent disabling effective September 14, 2010; degenerative joint disease of the left knee, rated at 10 percent disabling effective September 14, 2010; left knee instability, rated at 10 percent disabling effective September 14, 2010; left knee scar, rated at zero percent disabling effective September 14, 2010 and 10 percent disabling effective August 17, 2017; and noncompensable ratings for left elbow scar and headaches effective September 14, 2010. The Veteran's combined disability evaluation has been 80 percent since September 14, 2010. As such, the Veteran meets the schedular criteria for TDIU because he has one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran is entitled to TDIU. In the February 2021 remand, the Board noted that the Veteran indicated he was in receipt of SSA benefits. The RO submitted multiple requests to SSA for the Veteran's records. SSA responded in September 2021 that no such records existed for the Veteran. In November 2017, the Veteran submitted a VA Form 21-8940, and reported that he completed three years of college, and last worked as a private investigator in February 2017. The Veteran also listed that he completed an "associates degree/bachelors" in September 2013, and was in the process of earning another degree. He indicated that he was no longer able to work due to all of his service-connected disabilities. VA treatment notes from June 2018 show the Veteran reported he was studying for a cyber-security degree at the time, and that he already held a Bachelor of Arts degree in business finance. The Veteran also indicated that he was looking for an internship in the cyber-security field. Based on these reports, the Board requested in the February 2021 remand that the Veteran submit an updated VA Form 21-8940 in order to provide a complete educational and work history. The RO sent a letter to the Veteran in March 2021, requesting that he provide the updated form. To date, the Veteran has not responded to the request. There is no indication within the record that the Veteran did not receive the March 2021 letter. The Board notes that claimants have an obligation to assist VA in the development of their claim. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). While the Veteran reported in November 2017 that he had not worked since February 2017, the evidence is unclear about his employment status based on his self-reports during a June 2018 VA medical appointment. He indicated he was actively searching for an internship role. It would also appear that by this point in time, the Veteran may have completed his studies for his cyber-security degree. Further, VA examination reports fail to show that any VA examiner has assessed that the Veteran's service-connected disabilities render him unable to work. Thus, the Board finds the evidence is insufficient to show that the Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. (Continued on the next page) In sum, the preponderance of the evidence is against finding the Veteran's service-connected disabilities prevents him from obtaining or maintaining a substantially gainful occupation. Moreover, he failed to provide the necessary information contained in an updated VA Form 21-8940; thus, information from his prior education, training, and employment that may have supported his claim could not be considered. Accordingly, the Veteran's claim for TDIU is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.