Citation Nr: 21012634 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 09-26 626 DATE: March 4, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran did not complete and return a VA Form 21-8940 in connection with the TDIU. 2. There is incomplete information of record regarding the Veteran’s work history. 3. The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.158, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Navy from August 1984 to July 2004. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In a December 2017 decision, the Board denied the Veteran’s claims for an increased rating for a low back disability and his claim for entitlement to TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By an Order dated August 14, 2018, the Court vacated the Board’s December 2017 decision and remanded for readjudication. In December 2018, the Board in turn remanded this matter for additional development. In June 2020, the Board denied the Veteran’s claim for increased rating for a low back disability and remanded his claim for entitlement to TDIU. The June 2020 decision remanded the claim for additional development, which has been completed. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that the Veteran in September 2020 indicated that he had an attorney representative. However, no updated VA 21-22 has been received by VA. Additionally, the record reflects that the service organization has continued to assist the Veteran with his claim; it appears the relationship with the attorney was for purposes of the appeal to the Court. As such, the Board finds that the service organization continues to be the representative of record. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  These duties have been satisfied in this case.  Appropriate notice was provided in July 2020.  The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). A claim of entitlement to a total rating based on individual unemployability (TDIU) is inferred under Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel of the claim for increased rating for a low back disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In September 2012, the Veteran testified that he had stopped working since June 2012 due to his back pain. A September 2014 VA treatment note documented that the Veteran was not working; however, he was in school. A June 2017 VA treatment note documented that the Veteran had a new job. An October 2018 VA treatment note documented that the Veteran was a contractor and his contract ended in November. An August 2019 VA treatment note documented that the Veteran was stressed about his job since someone was fired in front of him. A February 12, 2020, VA treatment note documented that the Veteran was employed by the U.S. Department of Navy and worked mostly sedentary type jobs. However, a later treatment note documented that the Veteran was laid off but was in good spirits. He indicated that he was attempting to find new employment. In June 2020, the Board remanded this claim for further development, including provision of a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Board remanded this matter to obtain information on the Veteran’s employment, particularly in light of various contradictions in the record, which was required for adjudication of the claim. In July 2020 and August 2020 notification letters, the RO advised the Veteran that additional evidence was needed in connection with the TDIU appeal and asked the Veteran in writing to complete and return an enclosed VA Form 21-8940 and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. The Veteran did not respond to the letters and did not submit the requested TDIU information or form. On September 23, 2020, a Supplemental Statement of the Case (SSOC) was issued addressing the Veteran’s TDIU claim. In an October 2020 letter, the RO informed the Veteran that his appeal was returned to the Board for adjudication. In a November 2020 letter, the Board informed the Veteran that his appeal was received and had resumed its place on the docket. In January 2021, the Veteran’s representative (DAV) submitted an Appellant’s brief addressing the Veteran’s TDIU claim. The Veteran’s representative noted that the Veteran had yet to submit a VA form 21-8940. The Veteran has still not submitted a completed copy of VA Form 21-8940, so the record remains unclear as to his employment history and other factors that would assist in determining his eligibility for a TDIU. Notification letters were sent in July 2020 and August 2020 requesting information. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim, VA’s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board’s own review of the claims file does not show that the Veteran is unable to obtain or maintain substantially gainful employment. While the Veteran has moved from job to job, apparently in connection with the terms of government contracts, he has been able to secure new positions ina regular fashion. Information to the contrary which might have been provided in a completed VA form 21-8940 is not associated to the record; the Veteran has passed on the opportunity to do so. Based on the evidence of record, therefore, the Veteran appears to be employable, and his periods of unemployment are not shown to be related to any service-connected disability. The Board cannot determine the circumstances surrounding Veteran’s employment status. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough warrant a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence of record does not establish that the Veteran is actually unable to obtain or maintain substantially gainful employment. Accordingly, entitlement to TDIU is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.