Citation Nr: 21007864 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-10 958 DATE: February 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT During the applicable appeal period, the Veteran’s service-connected disabilities alone did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to January 1991. In April 2020, the Board of Veterans’ Appeals (Board) expanded the appeal to include the matter of the Veteran’s entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU was then remanded to the agency of original jurisdiction (AOJ) for development. 1. Entitlement to TDIU VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing or following a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the securing or following of a substantially gainful occupation. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). Veterans who, considering their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for bipolar disorder and inguinal hernia residual scar. The combined rating is 70 percent with bipolar disorder rated at 70 percent. Therefore, consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(a) is warranted. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Pursuant to the April 2020 remand, in May 2020, the AOJ requested that the Veteran complete a formal application for a TDIU (VA Form 21-8940). The Veteran did not complete the VA Form 21-8940 as requested or otherwise provide the requested information pertaining to his education and employment history. Although failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to his employment history, educational history and training, and income information necessary to address a claim for a TDIU. Therefore, the Board has reached its conclusion based on the evidence available in the record. During an October 2019 VA psychiatric examination, the Veteran reported that he currently is a driver for a medical transport system and has worked this job for 5 years. He indicated that he is able to do the job duties. He states that he gets into a verbal argument with his boss about once a week. He reported that he has not missed any time from work due to his mental health issues. During a June 2020 VA psychiatric examination, the Veteran reported that his current employment was stopped due to the current COVID-19 pandemic and not due to his work performance. He reported to the examiner that he expects to again start his job but is unsure when. As explained above, the AOJ sent a letter to the Veteran in May 2020 and asked him to complete a formal application for a TDIU (VA Form 21-8940), on which he could specify his education, earnings, and employment history. The Veteran failed to respond to the letter, did not submit any completed VA Form 21-8940, and has not otherwise provided any information pertaining to his employment history or his current employment status. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). Moreover, “[t]he duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran’s lack of response in this regard has resulted in a lack of evidence in support of his claim. Overall, the weight of the evidence is against a finding that the Veteran’s service-connected bipolar disorder and hernia scar, alone, prevents him from securing and following all substantially gainful employment consistent with his education and occupational experience. Although his service-connected disabilities have resulted in functional impairments, his own reports and the above lay and medical evidence do not support a finding that his service-connected disabilities result in an inability to secure and follow substantially gainful employment. For the foregoing reasons, the preponderance of the evidence is against entitlement to a TDIU. The benefit-of-the-doubt doctrine is therefore not for application in this instance and the claim for a TDIU must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.