Citation Nr: 21008325 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-36 771 DATE: February 16, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran has not demonstrated that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of a TDIU due to service-connected disabilities have not been met. See 38 U.S.C. §§ 1101, 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to June 1972 and July 1984 to September 1988. In October 2020, the Board of Veterans’ Appeals (Board) found that a March 2020 VA examination report raised the issue of whether the Veteran was entitled to a TDIU and then remanded this issue to give the Veteran an opportunity to clarify his work and educational experience by submitting a VA Form 21-8940 and any other relevant information. In an October 29, 2020, notice, the Veteran was informed that he may be entitled to a TDIU. He was further informed that he could download VA Forms 21-8940 and 21-4192 and submit a completed copy. Accordingly, the Board finds that there was substantial compliance with the October 2020 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A November 2020 rating decision denied entitlement to a TDIU. Entitlement to a TDIU due to service-connected disabilities is denied. The law provides that a TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A VA Form 21-8940 provides relevant, and sometimes indispensable, information regarding a veteran’s employment and educational history, and concludes with a series of sworn certification statements endorsing a veteran’s employment status and signaling his understanding that TDIU benefits are incompatible with substantially gainful work. The VA Form 21-4192 is used to obtain information from a veteran’s former employer(s) regarding the circumstances of employment and the reasons for termination of employment. Both forms thus provide critical information and evidence to aid VA in making an informed decision on entitlement to TDIU. Moreover, the VA Form 21-8940 helps ensure that a veteran is on notice that a return to work while in receipt of TDIU benefits may result in an overpayment requiring repayment to VA. The Veteran is currently service connected for multiple disabilities, to include a 30 percent rating for left knee residual instability from meniscectomy; a 20 percent rating for left knee residuals of meniscectomy with frequent episodes of locking and effusion; and a 20 percent rating for traumatic arthritis, left knee meniscectomy with limited extension. As pertinent to this case, the Veteran had a combined disability rating of 20 percent, effective September 2, 2009; 40 percent, effective February 22, 2011; 100 percent, effective March 20, 2011; 100 percent, effective March 21, 2011; and 70 percent, effective August 1, 2011. A June 2004 treatment record noted that the Veteran’s education level was “some college.” In September 2009, the Veteran filed an increased rating claim for his bilateral knee disabilities. At that time, the Veteran reported that his knees hurt when walking long distances and that it was hard to bend down to the floor to pick up items. At the October 2009 VA examination for knee disabilities, the Veteran reported that he could stand for 15 to 30 minutes and walk more than one-quarter of a mile. His knee disabilities had no significant effect on his usual occupation. In December 2009, the Veteran reported that he worked full time and had lost no time from work in the past 12 months. In February 2010, the Veteran reported working as a limousine driver. In March 2011, the Veteran was admitted for left knee septic arthritis and underwent a wash out of the knee. Prior to the admission, the Veteran reported that he used a cane and that his mobility impairment was an ongoing problem. In May 2011, the Veteran was prescribed a permanent disability parking pass necessary for mobility. In December 2011, the Veteran reported that he was retired. At the April 2014 VA examination for a hemorrhoids disability, the Veteran reported that he had retired from service and, either in December 2012 or since that time, worked as a self-employed entertainer. The Veteran retired of his own volition. The examiner stated that the Veteran’s hemorrhoids disability had no impact on the ability to work. At the April 2014 VA examination for knee disabilities, the Veteran reported that he could stand only 15 minutes before needing to sit down and that he used a cane to reduce his risk of falls. No opinion was provided on functional impact. In March 2016, the Veteran reported that he worked part time at a grocery store. At the March 2020 VA examination for knee disabilities, the examiner stated that the Veteran’s left knee disabilities impact his ability to perform occupational tasks to the extent that he can no longer walk long distances (10-15 minutes); suffers from severe knee pain (8/10), which lasts the entire day; has to sit down for 5 minutes before walking again; and is confined to his room most of the time wherein he does not need to walk long distances. The examiner stated that x-rays of both knees showed severe degenerative arthritis since 2011. In an October 29, 2020, notice, the Veteran was informed that he may be entitled to a TDIU. He was further informed that he could download VA Forms 21-8940 and 21-4192 and submit a completed copy. No forms were submitted. The Veteran has not demonstrated that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. The Board has considered all evidence in the claims file, to include the March 2020 VA examiner’s opinion. While the Veteran’s service-connected disabilities have some effect on his ability to work, there is insufficient evidence to determine whether those disabilities would prevent his ability to secure and follow a substantially gainful occupation. Indeed, the claims file, to include the December 2009 treatment record, the April 2014 VA examination for a hemorrhoids disability, and the March 2016 treatment record, contains evidence that the Veteran was able to secure or follow a substantially gainful occupation during the period at issue. The Board further notes that the Veteran was given an opportunity to clarify his work and educational experience, to include submitting completed copies of VA Forms 21-8940 and 21-4192, to determine whether he was entitled to a TDIU. The Veteran, however, did not provide any additional information. A veteran has a responsibility to cooperate in developing all facts pertinent to the claim; VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Without additional information about the Veteran’s work and educational experience, the Board finds that the current evidence in the claims file does not show that the Veteran is unable to secure or follow a substantially gainful occupation. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.