Citation Nr: 21077259 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-38 226A DATE: December 29, 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. Marine Corps from July 1997 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Buffalo, New York Regional Office (RO). In May 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 496-97 (2010). A hearing transcript is in the record. In April 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: persistent depressive disorder rated 50 percent disabling from September 25, 2012 to February 19, 2020 and 70 percent disabling from February 20, 2020 and continuing thereafter; right shoulder disorder rated 30 percent disabling from July 22, 2001 to December 21, 2003; 40 percent disabling from December 22, 2003 to October 18, 2004; 100 percent disabling under 38 C.F.R. § 4.30 from October 19, 2004 to January 31, 2005; 40 percent disabling from February 1, 2005 to September 24, 2012; and 50 percent disabling from September 25, 2012 and continuing thereafter; ulnar peripheral neuropathy rated 30 percent disabling from September 25, 2012 and continuing thereafter; cervical spine degenerative disc disease rated 10 percent disabling from September 25, 2012 and continuing thereafter; appendectomy scar rated noncompensable from July 22, 2001 and continuing thereafter; and tinea pedis rated noncompensable from July 22, 2001 and continuing thereafter. The Veteran has met the schedular criteria under § 4.16(a) effective September 25, 2012. 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. The September 2013 VA examiner indicated that the Veteran's service-connected right shoulder disorder impacted his ability to work due to right shoulder pain. In the May 2016 Board hearing, the Veteran testified to having been then employed as a corrections officer. Recent VA treatment records reflect that the Veteran is employed. In early-April 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. In mid-April 2021, VA 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. The Veteran did not submit the VA Form 21-8940 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 the VA. 38 U.S.C. § 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) (holding that 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.