Citation Nr: 21005771 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-38 104A DATE: February 2, 2021 ORDER The appeal seeking a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. FINDING OF FACT In February 2020 (pursuant to the Board’s remand instructions), the Veteran was asked to complete and submit a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); he was advised that the information sought in the form was needed for adjudication of this claim; he has not complied. CONCLUSION OF LAW By failing to provide requested information needed to properly adjudicate his TDIU claim, the Veteran has abandoned such claim, and the appeal in the matter must be considered abandoned. 38 U.S.C. §§ 5107, 7105; 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 2002 to November 2005. This matter is before the Board on appeal from a May 2013 Department of Veterans Affairs (VA) rating decision. In October 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In April 2018, the matter was remanded for additional development. The appeal seeking a TDIU rating is dismissed. The Board’s April 2018 remand noted that additional development was necessary to determine whether the Veteran’s service-connected disabilities precluded substantially gainful employment. The Board noted that VA Form 21-8940 (TDIU application) is part of the TDIU application process, and the remand instructed that the Veteran be asked to provide a completed VA Form 21-8940 and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). In February 2020, the AOJ sent the Veteran a letter asking him to complete the requested forms. He has not complied. A November 2020 supplemental statement of the case noted that the Veteran had not submitted a TDIU application and advised him that the form was required to further consider the claim. The critical facts at this stage are clear: By failing to submit a completed VA Form 21-8940, as VA requested, the Veteran has not provided information necessary for VA to properly adjudicate a TDIU claim. The duty to assist is not a one-way street, and a Veteran may not passively wait for assistance when his cooperation is needed for evidentiary development critical to a claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that his failure to cooperate with VA’s efforts to secure critical evidence in this matter frustrates VA’s attempts to ascertain his employability during the period for consideration. As a direct consequence of his failure to cooperate, the Board is presented with an incomplete employability picture that is inadequate for a proper merits’ adjudication of this matter. 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) (emphasis added); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Notably, the U.S. Court of Appeals for Veterans Claims has held that VA regulations are “binding on all who seek to come within their sphere”, regardless of whether an appellant has knowledge of such regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned the TDIU claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claim seeking TDIU is abandoned, there is no allegation of error in fact or law for appellate consideration in the matter; accordingly, the appeal in the matter must be dismissed. 38 U.S.C. § 7105(d)(5). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.