Citation Nr: 21022477 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-12 081 DATE: April 15, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied.   FINDING OF FACT The Veteran’s service-connected disabilities do not render her unable to secure and follow a substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1998 to May 2005. The case is on appeal from an October 2011 rating decision. In January 2015, the Veteran testified at a Board hearing. Most recently, in an August 2020 decision, the Board denied higher ratings for right knee limitation of motion and left knee arthritis, strain and a history of patellofemoral syndrome with limitation of motion. The issue of a TDIU was remanded for additional development. A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis In its August 2020 remand, the Board found that the Veteran may not have received a February 2020 Subsequent Development Letter that included a request for a completed VA FORM 21-8940 (formal TDIU application). As such, the issue of a TDIU was remanded to afford the Veteran another opportunity to complete and return the form. By an August 2020 letter, the RO requested that the Veteran complete, sign, and return the enclosed VA FORM 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The letter also included a section detailing the legal and evidentiary requirements for a TDIU. By an October 2020 supplemental statement of the case (SSOC), the RO denied a TDIU and the Veteran was notified of this decision the same month. The SSOC noted that the claim was denied, in part, because the RO had not received a completed VA FORM 21-8940. To date, the Veteran has not submitted a VA FORM 21-8940. See Olson v. Principi, 3 Vet. App. 480 (1992) (holding that VA’s “‘duty to assist is not always a one-way street’; nor is it a blind alley,” quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). In addition, there is no indication that the Veteran intends to submit a completed VA FORM 21-8940. Although the record contains some information regarding her employment history, the Board is presented with a less-than-complete evidentiary picture, made so by the Veteran’s failure to cooperate. The Board notes that even though a March 2017 determination of the Social Security Administration (SSA) reflects disability primarily due to her service-connected psychiatric disorder, other severe impairments were noted to include nonservice-connected hypertension. See also March 2016 Medical Treatment Record – Non-Government Facility; August 2020 CAPRI documents. In addition, records upon which the determination was based noting that she functioned independently reflect other nonservice-connected conditions, to include hearing loss and migraine headache. See June 2019 Medical Treatment Records – Furnished by SSA. Moreover, VA is not bound by a determination of the SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993). (Continued on the next page)   Further, and although the Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) since March 2013, the VA FORM 21-8940 requests information regarding the Veteran’s occupational and educational history, which is necessary to determine entitlement to TDIU. This information can be critical to resolution of this case. Moreover, the Court has indicated that failure to provide this Form or equivalent information can constitute abandonment of the TDIU claim. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012); see also 38 C.F.R. § 3.158. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, a TDIU is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.