Citation Nr: 21008023 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-17 315A DATE: February 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1981 to June 1995. During the July 2017 hearing conducted by the undersigned Veterans Law Judge, the Veteran raised the issue of a TDIU and the undersigned heard testimony on, and inferred, a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue on appeal was previously remanded by the Board in November 2018 and July 2020 in order to afford the Veteran opportunities to submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. TDIU—Laws and Analysis Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran in this case meets the schedular criteria for a TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. In evaluating entitlement to a TDIU, the central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The determination of unemployability is to be made by a VA adjudicator and is not a medical question. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Consideration may be given to the Veteran’s education, special training and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The Veteran has been provided with appropriate notice and development requests specific to his TDIU claim. Letters from VA dated in February 2019 and July 2020 informed the Veteran of his potential eligibility for a TDIU and requested that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran has not completed and returned the VA Forms 21-8940 that were sent to him. The evidence of record indicates that the Veteran has been variously employed throughout the appeal period; however, the Veteran has not provided a TDIU application with updated and complete information regarding his current and past employment history, educational background, and income. Based on various reports during VA treatments, the Veteran has engaged in full-time employment, part-time employment, as well as self-employment. For example, a June 2015 VA treatment record indicated that the Veteran had worked in various HR jobs “over the years.” The Veteran also indicated that he was “self-employed as a life coach.” The Veteran has also asserted that his consulting business had fluctuated in earnings from three thousand to seven thousand a month. In an August 2019 VA treatment record, the Veteran was noted to be unemployed, but a date of the onset of his unemployment was not provided. The Board notes that mere employment does not necessarily preclude entitlement to a TDIU if such employment is not gainful. However, the evidence is unclear as to the Veteran’s dates of employment and his yearly income throughout the rating period on appeal. A VA Form 21-8940 contains information on the types of employment, dates of employment, income, and education necessary to the adjudication of entitlement to a TDIU. As the Veteran has not submitted this information, the Board does not have all necessary information regarding the status of the Veteran’s current employment, education, and income. In other words, there is insufficient information as to when the Veteran left employment due to his service-connected disabilities and insufficient evidence of the Veteran’s income during his periods of employment. The duty to assist is a two-way street. If the 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 relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board also notes that the Veteran is in receipt of a 100 percent combined disability rating as of December 30, 2015. For the same reasons as addressed above, the current evidence of record does not show that the Veteran is unemployable solely due to a single service-connected disability so as to warrant consideration of special monthly compensation. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); Bradley v. Peake, 22 V et. App. 280 (2008). As such, entitlement to a TDIU is denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.