Citation Nr: 21009661 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-32 306 DATE: February 23, 2021 ORDER Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) prior to April 2, 2014 is denied. FINDING OF FACT Prior to April 2, 2014, the Veteran’s service-connected disabilities had not prevented him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably with the United States Army from May 1997 to May 2001 and from June 2006 and August 2007. This matter was previously adjudicated by the Board of Veterans’ Appeals (Board) in a December 2019 and September 2020 decision. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) prior to April 2, 2014 is denied. The Veteran himself has not claimed unemployability due to service-connected disabilities prior to April 2, 2014. In its December 2019 remand, the Board found that the issue of entitlement to TDIU had been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board reported the Veteran had filed a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability in April 2014, where he reported he had become too disabled to work due to his disabilities of PTSD, left leg radiculopathy, lower back strain, tinnitus, and depressive disorder. Here, the Veteran listed his previous employment as a respiratory therapist at Genesis Healthcare, Mission Regional Hospital and Doctors Hospital of Renaissance. See April 2014 VA Form 21-8940. However, no other information was provided about these employers. As eligibility for a TDIU rating is contingent on the Veteran’s ability to obtain and maintain substantially gainful employment, clarification of the Veteran’s previous employment history was required. It remanded the issue with instructions to send the Veteran another VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) to clarify the Veteran’s past employment history that was listed on the Veteran’s April 2014 VA-21-8940. A June 1, 2020 letter informed the Veteran of the requirements for substantiating entitlement to TDIU and advised him that a VA Form 21-8940 was enclosed with the letter with instructions to clarify the specific start and end dates for each employer that were listed on the April 2, 2014 Application. See December 2019 Board Decision; see also June 2020 Development Letter. The Veteran did not submit a VA Form 21-8940 or respond to the June 2020 letter. The claim was then sent back the Board for further adjudication. In Septmeber 2020, the Board remanded this issue again noting that the Veteran had until June 1, 2021 to reply to the development letter. The Board relied on 38 C.F.R. § 3.158(a), this regulation provides that where evidence requested in connection with an original claim, a claim for increase, or to reopen, or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. See September 2020 Board Decision. Following the September 2020 Board Decision, the Veteran was provided another development letter on September 17, 2020 which included a VA Form 21-8940 and VA Form 21-4192 to clarify the Veteran’s employment history. See September 2020 Development Letter. The Veteran did not reply to the September 2020 development letter. Instead, the Veteran submitted a signed waiver in October 2020 waiving AOJ consideration of additional evidence. See October 2020 Correspondence. A VA Form 21-8940 provides relevant, and sometimes indispensable, information regarding a claimant’s employment and educational history, and concludes with a series of sworn certification statements endorsing the Veteran’s employment status and signaling his or her understanding that TDIU benefits are incompatible with substantially gainful work. The VA Form 21-4192 is used to obtain information from the 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 claimant is on notice that a return to work while in receipt of TDIU benefits may result in an overpayment requiring repayment to VA. The record reflects the Veteran was provided with a VA Form 21-8940 and a VA Form 21-4192 in both June 2020 and again in September 2020. However, he did not submit a completed form although advised to do so. This information is critical to resolution of this case. The Veteran has not shown otherwise or clarified the inconsistencies of his previous employment history in his April 2, 2014 claim. Thus, rather than reflecting that the Veteran is unemployable, the record reflects that he was employed during the period on appeal. Therefore, the record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of any service-connected disability or   disabilities. Accordingly, entitlement to TDIU prior to April 2, 2014 must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.