Citation Nr: 21029447 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-28 599A DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. A completed VA Form 21-8940 for substantiating the TDIU claim has not been provided by the Veteran or his representative despite three requests from the Department of Veterans Affairs. 2. A preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for an entitlement to TDIU due to the Veteran's service-connected disabilities have not been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.159, 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1998 to September 2002 and from September 2002 to January 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In September 2019, the Board remanded this matter for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU is denied. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). Prior to January 14, 2011, the Veteran did not meet the threshold schedular disability percentage for a TDIU as he had a combined rating of 60 percent for service-connected obstructive sleep apnea, rated 50 percent disabling; and lumbar spine disability, rated 20 percent disabling. The Veteran has met the threshold schedular disability percentage requirement for TDIU consideration since January 14, 2011 due to service-connected obstructive sleep apnea, rated 50 percent disabling; vascular cephalgia claimed as cluster headaches, rated 30 percent disabling from January 14, 2011 and 50 percent disabling from July 22, 2013; lumbar spine disability, rated 20 percent disabling; right plantar fasciitis, rated 10 percent disabling; left plantar fascitis, rated 10 percent disabling; and left knee degenerative arthritis, rated 10 percent disabling since July 22, 2013. 38 C.F.R. § 4.16(a). His combined disability rating from January 14, 2011 was 80 percent and his combined disability rating from July 22, 2013 was 90 percent. The question is whether the Veteran's service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment during the pendency of the claim. After review of the evidence, the Board finds that a TDIU is not warranted. Since January 2011, the RO has asked the Veteran on three occasions to submit the required TDIU application form, VA Form 21-8940, and has asked him to have his last employer complete the VA Form 21-4192. See Correspondence dated August 2011, March 2012, and November 2019. The Board remanded this matter in September 2019, in part, to obtain the VA Form 21-8940 because the Veteran testified that he had been working for the postal service since March 2017, and that sometime between 2009 and 2017, he worked for L.M. for eight months. A fully completed VA Form 21-8940 provides the required information for developing and adjudicating a TDIU claim. The Veteran did not return a completed form which would have provided VA with the information needed to contact and obtain evidence from the Veteran's prior employer(s). See 38 C.F.R. § 3.159(c)(1)(i) (a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records and provide enough information to identify and locate the existing records). VA cannot fully develop the claim without the help of the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not always a one-way street." If a Veteran wishes help with his claim, he must cooperate with VA's efforts to assist him). In this case, the Board does not have enough employment information from the Veteran to determine whether he has been unemployed or unemployable due to service-connected disabilities during the pendency of the claim. In reaching this conclusion, the Board is hampered by the lack of a completed VA Form 21-8940 and information regarding the Veteran's education, employment history, or earnings. Although the Board can piece together some of his employment information from various treatment records found in the claims file, the Veteran has never provided VA with specific information regarding his employment, education, and training that is usually found in a completed VA Form 21-8940. It is the Veteran's responsibility under 38 U.S.C. § 5107(a) to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not met this burden here. Consequently, entitlement to TDIU due to the Veteran's service-connected disabilities is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.