Citation Nr: 21014689 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-02 779 DATE: March 15, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 5, 2015, is denied. FINDING OF FACT The Veteran’s service connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment prior to September 5, 2015. CONCLUSION OF LAW The criteria for a TDIU prior to September 5, 2015, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1981 to July 1984 and May 1985 to May 1989. The Board has previously remanded this matter. TDIU TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Period prior to September 5, 2015 Historically, a February 2019 rating decision granted the Veteran’s TDIU as of September 5, 2015, stating that pursuant to the evidence of record, September 5, 2015, was the day after the last day of the Veteran’s employment. The date was based on the Veteran’s September 30, 2015, Application for Increased Compensation based on Unemployability, Form 21-8940, which identified September 4, 2015, as the date his disability affected his full time employment, the date he last worked full-time, and the date he became too disabled to work. A July 2019 Board remanded the issue of a TDIU prior to September 2015 for further development. In response to the Board’s remand, the Veteran was requested to submit further evidence regarding his last date of full-time employment. See September 2019 letter. In October 2019, the Veteran returned an Application for Increased Compensation based on Unemployability, Form 21-8940. In the form, the Veteran stated that November 1, 2015, was the date his disability affected his full time employment, that November 1, 2018, was the date he last worked full-time, and that December 1, 2019, was the date he became too disabled to work. In April 2020, further information was requested from the Veteran regarding his employment. No response was received from the Veteran in regards to the request and in January 2021, the Veteran submitted a Notice Acknowledgement which indicated that he had no further evidence or information which would support his claim. Based on the foregoing, the Board does not find that a TDIU prior to September 5, 2015, is warranted. Based on the Veteran’s own evidence, he was not unable to secure or follow substantially gainful employment prior to September 5, 2015. The Board notes that the Veteran, through his attorney in a March 2021 Informal Hearing Presentation (IHP), stated that the issue should be remanded due to his failure to respond to the April 2020 request for additional information about his employment. As stated above, however, the Veteran did reply to the request for employment information in his October 2019 Form 21-8940. Furthermore, the Veteran was not precluded from providing information about his employment prior to September 2015 in his March 2021 IHP or in conjunction with filing the March 2021 IHP. The Board finds that remand is not appropriate. As such, a TDIU prior to September 5, 2015, is not supported by the record. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.