Citation Nr: 21013911 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-39 412 DATE: March 10, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1966 to September 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 Department of Veterans Affairs (VA) rating decision, which reduced the rating assigned for the Veteran’s prostate cancer from 100 percent to 40 percent, effective May 1, 2014. In May 2018, the matter of a TDIU rating was remanded for additional development. The May 2018 Board remand asked to provide VCAA notice to the Veteran regarding his claim for TDIU, develop the claim, and to complete any other development as may be indicated by any response received. In January 2019, the Agency of Original Jurisdiction (AOJ) sent the Veteran a letter asking him to submit a completed VA Form 21-4192, Request for Employment Information, and VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. In October 2019, the AOJ again requested he submit a completed VA Form 21-8940 and VA Form 21-4192. He did not respond. A June 2020 supplemental statement of the case (SSOC), confirmed the denial of a TDIU rating, in part based on the Veteran’s failure to submit a completed VA Form 21-8940. The AOJ stated the completed form is required to consider the claim. In written argument upon the return of the case to the Board, the Veteran’s representative indicated the Veteran was unaware of the critical need to submit a complete VA Form 21-8940 prior to the adjudication of the claim. The representative requested that the case be remanded so a competed VA Form 21-8940 could be submitted (suggesting that the Veteran has now been made aware that the information sought on the form is essential for proper adjudication of a TDIU claim, and that if will provide it if given opportunity to do so. Considering the foregoing, the Board finds that a final attempt to secure the information elicited in the forms requested is necessary. The Veteran is reminded that under 38 C.F.R. § 3.158 (a), where evidence requested in connection with a claim for VA benefits is not received within a year following the request, the claim will [emphasis added] be considered abandoned. The duty to assist is not a one-way street; a veteran may not passively wait for assistance when his cooperation is needed for evidentiary development critical to a claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matter is REMANDED for the following: 1. Ask the Veteran to submit completed VA Form 21-8940, Request for Employment Information in Connection with Claim for Disability Benefits, and VA Form 21-4192, Request for Employment Information. Afford the Veteran a full year from the date of the request to respond. If he submits the completed forms requested, arrange for all further development suggested by the information provided therein, e.g., if deemed necessary, contacting named employers for information confirming nature and duration of employment, the nature of the duties required, any accommodations made for service-connected disabilities, all available information of the impact of service-connected disabilities on the employment duties, etc. If an employer identified does not comply with an AOJ request for records the Veteran has authorized VA to secure, the Veteran should be so notified, and advised that ultimately it is his responsibility to ensure that private records are received. The Veteran should be advised that his cooperation in this matter is paramount, as without it, VA will not be able to properly adjudicate this claim. He should be reminded that expeditious handling of his claim is dependent on the promptness of his response. 2. Thereafter, the review the record, arrange for any follow-up development (e.g., of medical evidence) suggested by the response received to the request above, and readjudicate the claim. If he does not submit the forms requested/provide the information needed to properly adjudicate the claim, dismiss it as abandoned. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.