Citation Nr: 21014428 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 13-29 649 DATE: March 12, 2021 ORDER Entitlement to a total disability rating based on an individual unemployability (TDIU) is dismissed. FINDING OF FACT In December 2019 and June 2020, pursuant to the Board’s remand directives, the RO asked the Veteran to complete and submit an updated TDIU Application, and although more than a year has elapsed since the December 2019 request, which was sent to the Veteran’s new, updated address of record, the Veteran has not completed and/or submitted the required form. CONCLUSION OF LAW Given the Veteran’s failure to submit an updated TDIU application, the criteria for dismissal, on the basis of an abandonment of the TDIU claim, have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 3.158(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2008 to November 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 2016, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of this hearing is of record. Since the VLJ is longer at the Board, the Veteran was provided with an opportunity to appear for another hearing, in a May 2020 correspondence. However, the Veteran did not respond to this correspondence and the Board will proceed with adjudication of the appeal. Pertinent Due Process Procedural Background In April 2018, the Board remanded this claim for the RO to provide the Veteran with a VA Form 21-8940: Application for Increased Compensation Based on Unemployability (TDIU Application or Form 8940), for purposes of providing pertinent, additional information about his work history, work experience, training, educational background, and other pertinent details that would enable the Board to render a fully informed decision on this claim. Accordingly, in September 2019, after this Board remand, the RO attempted to dispatch a correspondence to the Veteran, at his address of record, and provided the Veteran with pertinent instructions for completing the TDIU application. As the correspondence was returned as undeliverable mail, the RO obtained the Veteran’s new, updated mailing address and dispatched the same correspondence to the Veteran. The Veteran did not submit the requisite Form 8940, as requested. Thereafter, the matter returned to the Board in June 2020, and the Board, again, remanded the claim to afford the Veteran with another opportunity to complete and submit the requisite Form 8940. In this June 2020 remand, the Board advised the Veteran that “his claim for TDIU will be considered abandoned if he does not submit the requested VA Form 21-8940 in a timely manner.” 38 C.F.R. § 3.158(a) and Jernigan v. Shinseki, 25 Vet. App. 220, 231 (2012). Abandonment of TDIU Claim When evidence is requested, in connection with an original claim or a claim for increase, and it is not submitted within one year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158. As noted in the Board’s June 2020 remand decisions, pertinent information about the Veteran’s employment history is missing from the record. The Veteran indicated that he was unemployed from approximately April 2012 to November 2015. At the time of his March 2016 videoconference hearing, he was still employed as a maintenance technician for house companies and had been working in this capacity since November 2015. See March 2012 TDIU Application; see also March 2016 Videoconference Hearing Transcript. Thus, the Veteran’s post-service employment history is clear until March 2016. As TDIU was inferred, the claim was remanded to the RO, with instructions for the Veteran to complete and submit the Form 8940 on two occasions, as noted above. Although the Veteran did not respond to the RO’s December 2019 request, the Board provided the Veteran with a second opportunity to submit the updated Form 8940. Accordingly, the RO dispatched another letter to the Veteran to his current, updated address in June 2020 and requested that the Veteran complete and submit the requisite Form 8940. The Veteran did not respond. For the purposes of evaluating abandonment, under 38 C.F.R. § 3.158(a), the Board construes VA’s December 2019 request to complete and submit the Form 8940 as the starting point of the one-year period considered by VA regulation. There is no evidence that any correspondence mailed to the Veteran’s address of record have been returned to VA as undeliverable since September 2019. In addition, using the same address of record, VA contacted the Veteran about scheduling examinations, which the Veteran reported to in October 2020. In summary, as the Board notified the Veteran that his appeal of entitlement to a TDIU will be considered abandoned if he does not submit the requested VA Form 21-8940 in a timely manner, more than a year has elapsed since the RO’s December 2019 request for the Veteran to submit this form, the Veteran was provided with an additional opportunity to submit this form in June 2020, and the Veteran did not submit the requested form, the Board finds that this failure to cooperate with VA’s effort to obtain and/or secure the requisite evidence in this matter frustrates VA’s attempt to ascertain and verify his complete educational background and employment history for purposes of assessing unemployability. Thus, the Board is presented with incomplete information that is inadequate for an adjudication of the claim. Under these circumstances, where the Veteran was expressly informed, controlling regulation clearly and unambiguously states that the claim “will be considered abandoned.” See 38 C.F.R. § 3.158(a); see Hurd v. West, 13 Vet. App. 449, 452 (2000). Notably, the Court has held that VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has knowledge of such regulations. See Jernigan, 25 Vet. App. at, 231 (holding that abandonment cannot be set aside or waived on grounds of alleged ignorance of regulatory requirements). Hence, the Board finds that the Veteran has abandoned his appeal. (Continued on the next page)   The Board notes that the Veteran has not raised any issues with a duty to notify and/or a duty to assist with the development of his TDIU claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As the Veteran's appeal of entitlement to a TDIU is abandoned, there is no allegation of error in fact or law for appellate consideration in this matter, and thus, this appeal for an entitlement to a TDIU must be dismissed. 38 U.S.C. § 7105(d)(5)). L.M. YASUI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.   Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED