Citation Nr: 21029154
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 16-11 143
DATE: May 12, 2021

ORDER

Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied.

FINDING OF FACT

The Veteran failed to complete a VA Form 21-8940 and the evidence is insufficient to establish that he was unemployable as a result of service-connected disabilities.

CONCLUSION OF LAW

The criteria for establishing entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from July 1967 to July 1971 and from August 1971 to August 1993.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that actions requested in the prior October 2020 remand have been undertaken. The Agency of Original Jurisdiction (AOJ) provided VCAA notice regarding what is needed to substantiate a claim for TDIU in October 2020 and asked the Veteran to complete a VA Form 21-8940. However, the Veteran did not submit the completed form. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("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."). Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

Entitlement to a total disability rating based upon individual unemployability (TDIU)

As discussed above, the Veteran did not complete VA Form 21- 8940 as requested in October 2020 or otherwise provide the requested information. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to address a claim for TDIU. "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).

The record contains insufficient evidence to assess the Veteran's employment status. The Veteran's failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his prior employers and leaves the Board without information as to whether the Veteran was engaged in some form of gainful employment during the period.

In sum, the Veteran has failed to cooperate with VA's attempts to develop the claim for TDIU that was raised by the record, and has not provided the information requested to permit adequate adjudication of the TDIU claim. Accordingly, due to lack of cooperation of the Veteran, the evidence is insufficient to determine whether he was unemployable due to service-connected disabilities. Thus, the claim for a TDIU must be denied. See Wood, 1 Vet. App. at 193.

 

 

K. Anderson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S.R. Fey, 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.