Citation Nr: 21029897 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-35 362 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The record evidence shows that service connection currently is in effect for a right shoulder disability, evaluated as 20 percent disabling effective August 25, 2014; a left shoulder disability, evaluated as 20 percent disabling effective August 25, 2014; tinnitus, evaluated as 10 percent disabling effective August 1, 2003; otitis media, evaluated as 10 percent disabling effective August 25, 2014; left ear hearing loss, evaluated as zero percent disabling effective August 1, 2003; and frontal sinusitis with headaches, evaluated as zero percent disabling effective August 25, 2014; the combined disability evaluation for compensation is 50 percent effective August 25, 2014. 2. The record evidence shows that the Veteran's service-connected disabilities, alone or in combination, do not preclude him from securing or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1977 to August 1978 and from April 1996 to July 2003. In January 2021, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed the AOJ to send the Veteran appropriate VCAA notice and forms to initiate a formal TDIU claim. This information was sent to the Veteran later in January 2021. There is no record of a response from him. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a TDIU. The Veteran essentially contends that his service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation. The record evidence does not support the Veteran's assertions. It shows instead that his service-connected disabilities do not preclude his employability. The Board notes initially that service connection currently is in effect for a right shoulder disability, evaluated as 20 percent disabling effective August 25, 2014; a left shoulder disability, evaluated as 20 percent disabling effective August 25, 2014; tinnitus, evaluated as 10 percent disabling effective August 1, 2003; otitis media, evaluated as 10 percent disabling effective August 25, 2014; left ear hearing loss, evaluated as zero percent disabling effective August 1, 2003; and frontal sinusitis with headaches, evaluated as zero percent disabling effective August 25, 2014. The Veteran's combined disability evaluation for compensation is 50 percent effective August 25, 2014; thus, he does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2019). The record evidence also shows that the Veteran's service-connected disabilities, alone or in combination, do not preclude him from securing or maintaining a substantially gainful occupation. For example, on VA shoulder and arm conditions Disability Benefits Questionnaire (DBQ) in May 2015, the VA examiner concluded that the Veteran's service-connected bilateral shoulder disabilities did not impact his ability to work. A different VA examiner concluded on VA ear conditions DBQ in May 2015 that the Veteran's service-connected otitis media did not impact his ability to work. Another VA examiner concluded on VA sinusitis DBQ in May 2015 that the Veteran's service-connected frontal sinusitis with headaches did not impact his ability to work. On VA hearing loss and tinnitus DBQ in May 2015, the VA audiologist concluded that the Veteran's service-connected left ear hearing loss and tinnitus did not impact his ability to work. On VA shoulder and arm conditions DBQ in November 2019, the VA examiner stated that the Veteran's service-connected right shoulder disability impacted his ability to work due to difficulty reaching above his head, pushing, pulling, lifting, or carrying which caused moderate to severe pain. The Board again notes that the AOJ requested that the Veteran provide information regarding his post-service employment history and submit a formal TDIU claim in January 2021. There is no record of a response to the AOJ's request for this information. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that "[t]he 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." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There is no indication that the January 2021 correspondence which VA sent to the Veteran was returned as undeliverable by the postal service or he otherwise did not receive it. Information which was expected to be obtained from the Veteran regarding his formal TDIU claim, including his post-service employment history, could not be obtained due to his failure to respond to VA's reasonable request for information. Contrary to the Veteran's lay assertions, the record evidence shows that his service-connected disabilities, alone or in combination, do not preclude his employability. Multiple VA clinicians concluded in May 2015 that each of the service-connected disabilities did not impact his ability to work. Although a different VA clinician stated in November 2019 that the service-connected right shoulder disability impacted his ability to work due to difficulty reaching above his head, pushing, pulling, lifting, or carrying which causes moderate to severe pain, this clinician did not conclude that the Veteran is precluded from securing or following a substantially gainful occupation solely as a result of his service-connected right shoulder disability. The Veteran's post-service employment history is not clear from a review of the record evidence and he again failed to respond to VA's reasonable request for this information in January 2021. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU. In summary, the Board finds that the criteria for a TDIU have not been met. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.