Citation Nr: 21026342 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-36 910 DATE: April 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record is insufficient to determine that the Veteran is unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1978 to August 1992. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from April 2015 and August 2015 rating decisions. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2018 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In April 2019, the Board remanded the issues of entitlement to service connection for left ear hearing loss, entitlement to service connection for a traumatic brain injury (TBI), and entitlement to an initial compensable rating for right ear hearing loss for additional development. In a May 2020 rating decision, the RO granted service connection for left ear hearing loss and service connection for a TBI. In a January 2021 decision, the Board denied entitlement to an initial compensable rating for bilateral hearing loss and remanded the issue of entitlement to a TDIU. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies); provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a Veteran fails to meet the percentage standards set forth in § 4.16(a) but is unemployable by reason of service-connected disabilities, the claim may be submitted for extraschedular consideration. 38 C.F.R. § 4.16 (b). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of employment and the reason for termination. 38 C.F.R. § 4.16. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran's service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual's particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). The phrase “unable to secure and follow a substantially gainful occupation” in § 4.16 (b) has both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the Veteran is able to “secure or follow” gainful employment. Id. In determining whether a Veteran can secure or follow a substantially gainful occupation, the Board should consider the Veteran's history, education, skill, and training; whether he or she “has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required” to work in a substantially gainful occupation, and "whether the Veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id. Currently, the Veteran’s migraines are rated as 30 percent disabling, prior to March 27, 2020, and as 50 percent disabling, thereafter; residuals of traumatic brain injury to include vertigo, as 10 percent disabling prior to March 2, 2020, and as 40 percent disabling, thereafter; left wrist sprain as 10 percent disabling; lumbar strain as 10 percent disabling; right hip strain as 10 percent disabling; left ankle sprain, as 10 percent disabling, scar on the top of the head as noncompensable; and bilateral hearing loss, as noncompensable. He has a combined rating of 60 percent, from April 16, 2013, 70 percent from March 2, 2020 and 80 percent, from March 27, 2020. The Board remanded the issue of entitlement to a TDIU in January 2021, noting that the Veteran testified during the August 2018 Board hearing that he has lost jobs previously due to the inability to physically perform the work required. He testified that he is no longer able to support his family. In the January 2021 remand, the RO was instructed to provide the Veteran with proper VCAA notice that informed him of the evidence and information necessary to establish entitlement to a TDIU and provide a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) to complete. Proper VCAA notice, a VA Form 21-8940 and a VA Form 21-4192 were sent to the Veteran in January 2021. A copy was also sent to the Veteran's representative. The Veteran failed to respond to the January 2021 request for information. To date, the Veteran has not completed and returned a TDIU claim form. While failure to complete the form is not fatal to a TDIU claim in and of itself, failure to do so deprives VA of accurate information as to the Veteran's employment history, educational history and training, and income information necessary to address a claim for TDIU. In the absence of the information requested from the Veteran, the Board must make a decision on the information of record. As noted in a March 2021 rating decision, the Veteran meets the schedular criteria for entitlement to a TDIU, effective March 2, 2020. Entitlement to TDIU, on an extraschedular basis is also considered prior to this date, as it is part of the period on appeal; however, the Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). Here, an additional remand for referral for entitlement to TDIU on an extraschedular basis has been considered, however, the evidence of record is insufficient to determine that the Veteran has been unable to secure or follow substantially gainfully employment. During the August 2018 Board Hearing, the Veteran testified that he has difficulty hearing people and must ask them to repeat themselves. He testified that he is a certified mechanic, but his knees cause a lot of pain and he can not hold a job due to an inability to stay on his feet for eight hours a day to complete shifts. He reported recently losing a job due to an inability to perform physical work due to his knees and wrist. The Veteran indicated that his wrists swell up when working with his hands and that he has fallen when his knee gives out. He testified that he is physically unable to work anymore. The Board notes that as recently as March 2020, the Veteran was still employed. See March 2020 VA examination. Unfortunately, there is not sufficient evidence in the claims file, however, to determine whether this is substantially gainful employment. Additionally, there is not sufficient evidence in the claims file to determine whether the Veteran had periods of unemployability prior to or after March 2020. As such, while the evidence reflects that the Veteran's disabilities cause occupational impairment, the Board is unable to determine from the current record if the Veteran's disabilities render the Veteran unable to secure or follow a substantially gainful occupation. The Board does not doubt that the Veteran's service-connected disabilities cause impairing symptomatology. Importantly, however, because the Veteran did not provide the requested VA Form 21-8940, the Veteran's file lacks complete information about the Veteran's educational history and employment history. There is no specific evidence of when the Veteran became unemployed, and there is limited information regarding his past employment experience and educational background. There is no information provided as to whether the Veteran's employment was gainful or not for the applicable periods of time. While the RO has tried to obtain additional evidence, neither the Veteran nor his representative has provided it. In sum, the Veteran has not cooperated with VA's attempts to develop the claim, and the record that is before the Board is insufficient to determine that the Veteran is unable to secure or follow substantially gainfully employment as a result of his service-connected disabilities. The duty to assist a Veteran in the development of evidence pertinent to a claim is not a “one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the claim for entitlement to a TDIU must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.