Citation Nr: 21016241 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 17-40 215 DATE: March 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran failed to provide evidence necessary to adjudicate the claim for entitlement to a TDIU. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1994 to January 1998. As pertinent here, in December 2018, the Board found that entitlement to a TDIU was raised by the record and remanded the claim. The Board asked the RO to assist the Veteran with substantiating the referred claim for a TDIU, to include providing him with VA Form 21-8940. Subsequently, the RO determined that a referral for extraschedular consideration was not warranted and denied the claim because the Veteran did not meet the schedular criteria for entitlement to a TDIU. In July 2020, the Board determined that a referral for extraschedular consideration was warranted and remanded the claim for further development. Entitlement to a TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Such action was accomplished pursuant to the Board’s most recent remand. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16 (b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: The Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). As discussed above, the Veteran did not file a claim for a TDIU; however, under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), there is also a duty imposed on VA to consider TDIU even when the schedular criteria are not met. Here, pursuant to the Board’s December 2018 remand, in a December 2018 letter, the RO sent the Veteran VA Form 21-8940, Veterans Application for Increased Compensation based on Unemployability, as well as VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, and requested he complete and return the forms. The Veteran failed to submit this evidence. In February 2019, the RO sent the Veteran another letter asking for this information. Pursuant to the Board’s July 2020 remand, in September 2020, the RO contacted the Veteran by telephone in attempt to obtain the information needed for adjudication of the claim for a TDIU. However, the RO was unable to get through to the Veteran and left a message asking him to submit VA Form 21-8940. Later in September 2020, the RO sent the Veteran another letter requesting this information. To date, the Veteran has not responded to any of the above-mentioned requests. Following the most recent remand, an October 2020 VA memorandum recommended a denial of extraschedular TDIU, due to the Veteran’s failure to submit VA Form 21-8940 and the lack of evidence regarding his employment. In December 2020, the Director of Compensation Service determined that the evidence did not support entitlement to a TDIU on an extraschedular basis. In finding so, the Director acknowledged the available evidence, but concluded that due to the Veteran’s failure to provide additional evidence, it was unclear whether he was unemployable by reason of his service-connected disabilities. As the Director has considered the issue of extraschedular TDIU in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). Here, the Board finds that entitlement to a TDIU, to include on an extraschedular basis, is not warranted. Service connection is currently in effect for a bilateral knee disability and tinnitus. While the Board acknowledges that a January 2017 VA examination report indicated that the Veteran was medically retired from the police force, partly due to his service-connected knee disabilities, it did not indicate that he was retired solely due to his knee disabilities. Notably, in a June 2017 VA vocational counseling record, the Veteran reported that his last day of employment was in February 2017 and that he was no longer able to work due to developing posttraumatic stress disorder (PTSD) associated with his work duties. The Veteran stated that he was medically retired due to PTSD and that his PTSD precluded him from employment. The vocational counselor indicated that the Veteran’s service-connected disabilities did not significantly impair his employability, instead it was most impacted by his PTSD, which is not a service-connected disability. Furthermore, the record simply does not contain enough information for the Board to find equipoise that the Veteran’s service-connected disabilities preclude substantially gainful employment. The Veteran’s failure to provide the necessary information for adjudication of a TDIU deprives the Board of information as to the Veteran’s work history and educational background, which is necessary for adjudication of a claim for entitlement to a TDIU. The Board emphasizes that the duty to assist is a two-way street. Due to the Veteran’s failure to provide VA with necessary information to adjudicate his claim despite multiple attempts to obtain such information, there is no further duty to assist. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, the Veteran has failed to cooperate with VA’s attempts to develop the claim for TDIU, and the record that is before the Board does not demonstrate that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. Thus, the claim for TDIU must be denied. S. S. MAHONEY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.