Citation Nr: 21024518 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-37 003 DATE: April 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to January 21, 2020 is denied. FINDING OF FACT The Veteran did not complete a VA Form 21-8940 as requested in December 2020 correspondence, and the evidence is insufficient to establish he was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities during the noted period. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to January 21, 2020 have not been 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 October 1972 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a June 2019 Board hearing before the undersigned Veterans Law Judge (VLJ). This matter was previously before the Board in December 2020, when the claim for TDIU was added by the Board and then remanded for further development to include contacting the Veteran via a 38 C.F.R. § 3.159(b) notice letter to address his TDIU claim, furnishing a VA Form 21-8940, and completing any development and adjudication warranted by the response. The record shows that VA contacted the Veteran regarding his TDIU claim and provided a blank VA Form 21-8940 in correspondence dated December 2020. The Board notes that, to the full extent possible, VA complied with the remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. VA considers such factors as the extent of the service-connected disabilities, and employment and educational background in making its determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). TDIU may be assigned when the schedular rating is less than total if, where there is only one disability, the disability is rated at 60 percent or more, or if, where there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology such as the Veteran’s cervical disc disease and upper extremity radiculopathies are considered a single disability. The same is true for disabilities of the same bodily system, such as musculoskeletal, as here. Id. Prior to January 21, 2020, multiple service-connected musculoskeletal disabilities added up to a combined rating in excess of 40 percent. The question remains throughout whether service-connected disabilities precluded the Veteran from securing and following a substantially gainful occupation. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim. To date, the Veteran has not completed the VA Form 21-8940, Application for Increased Compensation Based on Unemployability, as requested in the December 2020 Board remand. While a failure to complete the form is not fatal to a TDIU claim in and of itself, the absence of such a completed application denies the Board relevant information regarding the Veteran’s employment history, educational history, and income information necessary to address a claim for TDIU. The Board notes that VA’s duty to assist in the development of a claim is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran also has an obligation to assist in the adjudication of his claim. The Board notes that the Veteran testified during the June 2019 Board hearing that his service-connected disabilities, specifically his cervical spine pain, caused him to quit his job rather than be fired and then take a lesser job with less pay working only three days per week. See July 2019 Board hearing transcript. However, there is no evidence indicating the Veteran’s employment status since. The Veteran’s non-completion of the VA Form 21-8940 leaves the Board without the ability to request relevant information from his prior employers and to evaluate his previous forms of employment. The Board lacks information as the whether the Veteran has since obtained some form of substantially gainful employment. The Board observes that additional VA treatment records were added to the claims file after the December 2020 Board remand. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed by the Agency of Original Jurisdiction (AOJ), here the RO. See generally, Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When evidence is received prior to the transfer of a case to the Board, an supplemental statement of the case must be furnished to the Veteran and his or her representative, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to an issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. However, in light of the Veteran’s non-return of the VA Form 21-8940, and the absence of any evidence specifically relevant to employability as it relates to the service-connected disabilities in the recently received VA treatment records, the absence of a Supplemental Statement of the Case from the AOJ does not constitute error. In sum, the Board finds that there is insufficient evidence to find that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, as he did not complete the VA Form 21-8940. The record is negative for a comprehensive overview of the Veteran’s work history, his current employment status, and his level of education. Accordingly, the evidence of record does not demonstrate that the Veteran is unable to secure and follow substantially gainful employment because of his service-connected disabilities, and entitlement to TDIU prior to January 21, 2020 must be denied. See Wood, supra. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.