Citation Nr: 21005399 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-55 211 DATE: February 1, 2021 ORDER Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran failed to return a VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability) and he has not met his burden of establishing that he is unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 2006 to July 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of September 2014 and August 2020 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs. In March 2020, the Veteran appeared at a hearing before a Veterans Law Judge who has since retired from the Board. In October 2020 correspondence, the Board sent the Veteran a letter alerting him to this fact and offering him the option of an additional Board hearing. As indicated in the letter, when the Veteran did not respond it was concluded that he did not wish to appear for another hearing. The Board previously remanded this matter to the AOJ in a May 2020 decision, and the AOJ denied entitlement to a TDIU in an August 2020 rating decision. Entitlement to a TDIU At the March 2020 hearing, the Veteran indicated that his service-connected headache disorder prevented him from finding and maintaining substantially gainful employment. A TDIU 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 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 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extra-schedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has been in receipt of a combined disability rating of 90 percent from July 30, 2014, and a 100 percent rating from January 10, 2015, meeting the criteria for the entire period on appeal. The term substantially gainful employment refers to, at the minimum, the ability to earn a living wage, and is not engaged in substantially gainful employment if annual income below the poverty threshold for one person). See Bowling v. Principi, 15 Vet. App. 1, 7 (2001). In Faust v. West, 13 Vet. App. 342, 356 (2000), the Court held actual employability is shown as a matter of law by substantially gainful employment. This means employment that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works. Id. There is an exception to this rule for sheltered employment. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). As noted above, this matter was previously before the Board in May 2020, whereby the Board remanded the issue in order to provide the AOJ, with the help of the Veteran, an opportunity to further develop the claim for a TDIU. The Board instructed the AOJ to send the Veteran a letter including VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4121, Authorization and Consent to Release Information to the VA for completion and return to the VA. A review of the claims file reveals both Forms were included in May 2020 and June 2020 correspondence informing the Veteran of the aide required in developing his claim. The Veteran has failed to return either Form to the VA. As such, the Board finds that the AOJ substantially complied with the May 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). VA readiness and employment records indicate the Veteran applied for and was accepted into a VA vocational rehabilitation program in October 2014 but failed to attend the orientation session. An October 2014 letter from the Veteran’s treating staff psychologist and psychology extern indicated their belief that the psychological symptoms of the Veteran’s service-connected posttraumatic stress disorder rendered him unable to seek or maintain gainful employment, nor sustain a full workday. January 2016 VA examiners noted no functional limitations due to the Veteran’s lumbar spine disability but indicated he suffered from headaches and short-term memory loss due to his service-connected traumatic brain injury. An October 2017 VA examiner observed the Veteran’s service-connected bilateral knee disabilities would cause him problems in jobs that involve running, jumping, kneeling or repetitive squatting. At the March 2020 Board hearing, the Veteran indicated that he was in receipt of social security disability benefits upon his separation from service but reported that he canceled them in order to gain full time employment. He stated that he was gainfully employed by the University of Chicago and Allied Universal Security until approximately 2018 but was not currently working. The Veteran reported that while his headaches had caused him to miss work two to three times per week, he stayed in constant contact with human resources and his supervisors via phone or email. He indicated that his supervisors knew he had health issues but were always willing to work with him and stated he was never admonished or told he was performing inadequately. The Veteran reported he resigned because he felt his health and attendance issues were hindering the performance of his team. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that “the tie goes to the runner.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. After a review of the record, the Board finds that the Veteran has not met the burden of establishing that he is unable to gain or maintain substantially gainful employment as a result of his service-connected disabilities. While the file contains a letter indicating the Veteran may have been unemployable in October 2014, according to hearing testimony he was subsequently employed full time for several years. It is unclear for what period the Veteran was “gainfully” employed, as well as whether he was able to satisfactorily complete his assigned tasks or if his employment was “sheltered” in nature. Additionally, absent a response from the Veteran, it is unclear whether he has found substantially gainful employment since the March 2020 hearing. In this case, potentially relevant evidence such as the Veteran’s employment history and subsequent training and education (both referenced tangentially in his VA treatment records), is not available to the Board. As noted by the US Court of Appeals for Veterans Claims, the duty to assist is not a one-way street or a blind alley; a claimant cannot remain passive when he has relevant information solely within his control. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). Without the Veteran’s provision of additional information, the Board is unable to determine whether he has met the criteria for entitlement to a TDIU, which requires more than a generalized statement of unemployment for some period of time. The Board is not denying the claim for mere failure to file a form. Rather, there was additional information that was needed in order to fully adjudicate the claim. The Board cannot assign a TDIU without specific information such as the month and year the Veteran last worked substantially gainful employment. This information is not available within the claims folder, and his solely within the Veteran’s control. Without this information, entitlement to a TDIU must be denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.