Citation Nr: 21026763 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-07 009 DATE: May 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 3, 2019 is denied. FINDING OF FACT The Veteran failed to provide any financial information, such as income tax return forms that include his net and gross profits for all periods of self-employment, the type of work performed, number of hours worked per week, and any time lost due to his service-connected disabilities and the evidence is insufficient to establish that he was unemployable as a result of his service-connected disabilities for the period on appeal. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to April 3, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from March 1970 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was last before the Board in May 2020 where it was remanded for additional development. 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). Here, for the entire period on appeal prior to April 3, 2019, the Veteran's combined rating was at least 80 percent. Thus, the schedular criteria for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met. In order to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). The question in a TDIU claim is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or to the impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. 361. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim. The Veteran did not provide any financial information, such as income tax return forms that include his net and gross profits for all periods of self-employment, the type of work performed, number of hours worked per week, and any time lost due to his service-connected disabilities as was requested in November 2019 and June 2020 letters. While failure to provide this information is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information pertinent to the Veteran's self-employment history, educational history and income information. Importantly, although the record does contain information that the Veteran is a farmer and has been since 2010, the failure to provide the requested information prevents the Board from determining whether his service-connected disabilities impacted his ability to work. See VA Treatment Records. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, although the Veteran meets the schedular criteria for a TDIU, his failure to provide any financial information and time lost due to his service-connected disabilities leaves the Board without the ability to determine whether the his service-connected disabilities rendered him unemployable. Accordingly, the evidence is insufficient to determine whether he is unemployable due to his service-connected disabilities, and the claim for TDIU must be denied. See Wood, 1 Vet. App. at 193. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.