Citation Nr: 21025514 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-34 574 DATE: April 28, 2021 ORDER Entitlement to a total disability evaluation due to individual unemployability (TDIU) is denied. FINDING OF FACT As the Veteran failed to complete a VA Form 21-8940 and provide other requested earnings and employment information, the evidence is insufficient to establish whether he was gainfully employed during the appeal period. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2003 to August 2003 and from April 2004 to May 2007. A Board Video Conference hearing was held in November 2017. A transcript of the hearing has been associated with the record. Entitlement to a TDIU As noted in the December 2020 Board decision, entitlement to TDIU is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU will be granted when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran’s appeal was most recently before the Board of Veterans’ Appeals (the Board) in December 2020. The Board remanded the Veteran’s claim for a TDIU for additional development regarding the Veteran’s employment history and income. In December 2020 correspondence, the AOJ provided the Veteran with a blank VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to develop evidence regarding the Veteran’s employment. Further, as he had reported working as independent Real Estate Agent with report of full-time employment ending sometime in 2018/2019, the Veteran was asked to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, with his employment history. He was also asked to provide copies of earnings reported to the Social Security Administration and/or copies of IRS Forms W-2 and/or 1099 for the years of employment since 2012 to the present. The Veteran did not return that form or provide the requested information. In an April 2021 supplemental statement of the case, the AOJ continued the denial of a TDIU. The AOJ emphasized that the Veteran had not responded to its December 2020 request for additional information. Emphasis was also placed on the finding that the Veteran’s employment history remained unknown. “It is the veteran’s ‘general evidentiary burden’ to establish all elements of his claim.” Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA “is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service.” Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). Although VA has a duty to assist, this duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 191 (1991). The Veteran has information about his employment efforts and his employment history that he can provide without significant burden. This information is necessary for proper consideration of TDIU as employability is a fundamental aspect of the equation. As VA does not generally have the Veteran’s employment history, he cannot “passively wait for [help] in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Id. The Veteran has not provided information necessary to trigger VA’s duty to assist and has otherwise not provided sufficient information to establish entitlement to TDIU. The Board acknowledges that the Veteran reports that he has been unable to work due to his service-connected disabilities. Reports from B.F. (a co-worker) and his spouse relate that symptoms related to his service connected post-traumatic stress disorder (PTSD) were causing him to lose his train of thought, forgot clients, and forgot what properties he had shown clients. However, this is not sufficient information for TDIU. “The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The details of his employment history are necessary to determine if the Veteran could perform a different type of work or any type of work. As the Veteran has not provided sufficient information for VA to further assist him or to determine that he is unemployable, TDIU must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.