Citation Nr: 21030418 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 11-20 125 DATE: May 18, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to September 7, 2012, and in excess of 40 percent thereafter, for intervertebral disc syndrome (IVDS) is denied. Entitlement to a total disability based upon individual unemployability (TDIU) prior to November 5, 2019 is denied. FINDINGS OF FACT 1. Prior to September 7, 2012, the Veteran's IVDS has not been shown to be manifest by forward flexion of 30 degrees or less. Since September 7, 2012, the Veteran's IVDS is manifest by forward flexion of 30 degrees or less. 2. The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation prior to November 5, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to September 7, 2012, and in excess of 40 percent thereafter, for IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The IVDS rating issues came before the Board in February 2018, and were denied. The Veteran appealed the February 2018 Board Decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2019 memorandum decision, the Court vacated and remanded the IVDS rating issues to the Board. In January 2020, the Board remanded the claim for increased rating for IVDS in accordance with the May 2019 CAVC memorandum decision. The Board also found that entitlement to TDIU has been raised by the record in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), specifically during the September 2012 Board videoconference hearing, as part of the increased rating claim for IVDS. In October 2020, the Board remanded the claims for increased rating for IVDS and a TDIU for an addendum opinion that provides assessments as to the additional limitation of motion and function due to pain during flare-ups, and in weightbearing. The Board finds that the remand directives have been substantially completed. 1. Entitlement to in excess of 20 percent prior to September 2012, and in excess of 40 percent thereafter, for IVDS The Veteran seeks a higher rating for IVDS. He contends that a higher rating is warranted, because back pain during flare ups and with repeated use significantly limit his functional ability. The Veteran's IVDS is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the recent amendments to the spine criteria that became effective February 7, 2021, Diagnostic Code 5243 (Intervertebral disc syndrome) is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is to be assigned for all other disc diagnoses. See 85 Fed. Reg. 76453 (February 7, 2021). In the present case, the amendment does not affect the evaluation as the record is devoid of any incapacitating episodes due to his back condition still required for a higher rating. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran presented for VA examinations in July 2010, March 2014, and December 2014, April 2017, and January 2020. While these VA examinations were not fully compliant with the requirements set forth by Mitchell, 25 Vet. App. 32, Correia, 28 Vet. App. 158, and Sharp, 29 Vet. App. at 33 as to the range of motion findings, they contain some relevant findings that are included below. VA treatment records reflect ongoing treatment and Botox injections for low back pain and muscle spasm. A May 2014 neurological visit noted a history of lower back pain. Mild soreness or achiness in the right lower back was noted, with tenderness to palpation present. An August 2016 visit noted lower back pain, muscle spasms, and IVDS. The note indicated the Veteran had a normalized range of motion in the back. The Veteran was afforded a VA examination in July 2010. The Veteran reported pain in his low back. He indicated that he could walk about 20 minutes, before he experienced back pain. The Veteran denied flare-ups, though he indicated that it was "always nagging at that range." The VA examiner diagnosed IVDS. During his hearing on September 7, 2012, the Veteran reported that pain stopped his motion. He stated that he had spasms anywhere from two to four times per week and that there were weeks when they occurred every day. The Veteran was afforded a VA examination in March 2014. The Veteran reported low back pain with radiating pains into his buttocks. He stated that the pain worsens with certain movements, and radiates to his right buttock. The Veteran reported flare ups that were worsened by standing. The examiner diagnosed degenerative arthritis of the spine. Paraspinal muscles on the right lumbar area were quite tender to light touch, and were also noted as tight. No ankylosis of the spine was noted. No incapacitating episodes due to IVDS over the previous 12 months were noted. The Veteran was afforded a VA examination in December 2014. The Veteran reported residual low back pain and muscle spasm. He reported flare ups due to cold weather and overuse. He stated that due to an increase in pain during flare ups, he experienced a decrease in the range of motion of his back. No ankylosis of the spine was noted. No incapacitating episodes requiring bed rest prescribed by a physician due to IVDS were noted by the examiner. The Veteran was afforded a VA examination in April 2017. The Veteran reported constant lower back pain with occasional radicular pain down to his right knee area. He stated he had occasional flare-ups of his back pain when raking the lawn, with pain lasting up to 30 minutes. No ankylosis of the spine was noted. The Veteran was afforded a VA examination in January 2020. The Veteran reported right-sided back pain with local tenderness, soft tissue swelling, and spasms. He reported pain in his back constantly, with increased pain if he sits for 12 hour or stands for 12 hour. He reported that his back gets compressed with prolonged sitting, and that the pain is more intense as a result. The Veteran reported flare-ups every 3 months, and that he had to go and get his back injections. He reported difficulty bending forward, performing rotational movements, sitting too long, or standing too long. Physical examination showed a reported range of flexion limited to 55 degrees; extension limited to 25 degrees; left lateral flexion to 30 degrees; right lateral flexion limited to 25 degrees; and left lateral rotation limited to 15 degrees; and right lateral rotation limited to 15 degrees. Repetitive use testing showed a reported range of flexion limited to 55 degrees; extension limited to 20 degrees; left lateral flexion limited to 25 degrees; right lateral flexion limited to 20 degrees; and left lateral rotation limited to 15 degrees; and right lateral rotation limited to 25 degrees. The examiner indicated additional loss of range of motion due to pain, fatigue, weakness, or lack of endurance during flare-ups or with repetitive use. The examiner estimated that as a result range of flexion would be limited to 50 degrees; extension would be limited to 20 degrees; left lateral flexion would be limited to 25 degrees; right lateral flexion would be limited to 20 degrees; left lateral rotation would be limited to 15 degrees; and right lateral rotation limited to 25 degrees. No ankylosis of the spine was noted. No incapacitating episodes requiring bed rest prescribed by a physician due to IVDS were noted by the examiner. In November 2020, a VA examiner reviewed the Veteran's records. The examiner opined that the January 2020 VA report's initial range of motion is the most reflective of the Veteran's current range of motion, because it is the most recent examination. After considering the signs and symptoms of the April 2017 and January 2020 VA examination, the examiner estimated range of motion with repeated use over time would be flexion limited to 40 degrees; extension would be limited to 15 degrees; left lateral flexion would be limited to 15 degrees; right lateral flexion would be limited to 15 degrees; left lateral rotation would be limited to 15 degrees; and right lateral rotation limited to 15 degrees. The examiner estimated range of motion during flare-ups would be flexion limited to 30 degrees; extension would be limited to 10 degrees; left lateral flexion would be limited to 10 degrees; right lateral flexion would be limited to 10 degrees; left lateral rotation would be limited to 10 degrees; and right lateral rotation limited to 10 degrees. In February 2021, the examiner offered an addendum opinion with respect to the period prior to September 7, 2012. The examiner estimated range of motion with repetitive use would be flexion limited to 70 degrees; extension would be limited to 25 degrees; left lateral flexion would be limited to 25 degrees; right lateral flexion would be limited to 20 degrees; left lateral rotation would be limited to 25 degrees; and right lateral rotation limited to 25 degrees. The examiner estimated range of motion during repeated use would be flexion limited to 50 degrees; extension would be limited to 15 degrees; left lateral flexion would be limited to 15 degrees; right lateral flexion would be limited to 15 degrees; left lateral rotation would be limited to 15 degrees; and right lateral rotation limited to 15 degrees. The 2021 examiner indicated there would be no additional loss with flare ups, because the July 2010 VA examination report stated that the Veteran at that time had no flare ups. Thus, the examiner concluded there would be no additional loss of function beyond the loss in motion due to repeated use over time. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent prior to September 7, 2012, and in excess of 40 percent thereafter, for IVDS based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The preponderance of the evidence is also against a rating in excess of 20 percent prior to September 7, 2012, and in excess of 40 percent thereafter, for IVDS under the General Rating Criteria. For the period before September 7, 2012, medical evidence does not reveal forward flexion to less than 30 degrees. No incapacitating episodes due to IVDS were noted by the July 2010 VA examiner. For the period after September 7, 2012, medical evidence does not reveal unfavorable ankylosis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not warrant a higher rating. The next highest available rating under the General Formula is 50 percent, and unfavorable ankylosis of the thoracolumbar spine is required. There is no evidence showing the Veteran's lumbar spine disability manifests with ankylosis, much less unfavorable ankylosis of the thoracolumbar spine. This is so even considering any functional loss due to pain and flare-ups. At the most recent examination in January 2020, forward flexion was estimated at 50 degrees during a flare-up; and no ankylosis was present. The November 2020 VA addendum report further restricted forward flexion to 30 degrees during a flare-up; but did not suggest ankylosis would be present during a flare up. Regarding neurological impairment, the Veteran has already been granted service connection for right lower extremity femoral neuropathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent prior to September 7, 2012, and in excess of 40 percent thereafter, for IVDS. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to TDIU The Veteran seeks a TDIU. He contends that he is unable to maintain employment due to the limitations of his low back disability. At his September 2012 hearing, the Veteran reported that he was self-employed, but could not lift weight or help with the shipping. He stated that other family members needed to do that type of work, and that he had to limit himself to primarily sales and marketing. In a January 2020 rating decision, the RO granted service connection for a coronary artery disability and assigned a 100 percent disability rating effective November 5, 2019. The RO further granted entitlement to special monthly compensation (SMC) based on housebound criteria being met, effective November 5, 2019. As there remains no case or controversy concerning whether he is entitled to the benefit sought, the appeal with respect to the claim for a TDIU is moot as of November 5, 2019. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board therefore is only considering whether he was entitled to a TDIU prior to that date when his 100 percent schedular rating took effect. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to November 5, 2019, the Veteran has the following disabilities that are service connected: unspecified depressive disorder (rated 30 percent, from September 10, 2012 to November 5, 2019); IVDS (rated 20 percent from May 12, 2010 to September 7, 2012, and 40 percent since September 10, 2012); anterior lateral cutaneous femoral neuropathy (rated 10 percent from September 10, 2012 to March 14, 2014; and 20 percent since March 14, 2014); left thigh abductor muscle injury (rated 10 percent from May 12, 2010); right hip posttraumatic degenerative joint disease (rated 10 percent from September 10, 2012); residuals of cerebral contusions (rated noncompensable since January 22, 1971); and traumatic scar at the dorsum of the nose (rated noncompensable since September 1, 1976). The Veteran was not service connected for coronary artery disease. Prior to September 10, 2012, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). From September 10, 2012 to November 5, 2019, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, for this period the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Review of the file shows that the Veteran did not submit a completed VA Form 21-8940 although one was provided to him in October 2020. However, information gleaned from the evidentiary record reflects the Veteran has reported prior employment at a medical device disposal company, and that he owned or managed a clothing manufacturing company. Information shows the Veteran worked as either a scientist or managerial professional at a medical device disposal company. Regarding his past educational, evidence of the record shows the Veteran obtained an unspecified bachelor's degree, and a master's degree in organizational development. The Veteran was afforded a VA examination for the spine in July 2010. The examiner found that the Veteran is limited with walking or standing for more than 20 minutes. Mobility was full, though the Veteran stated that he moved sometimes more slowly. The Veteran was self-employed as a clothing manufacturer. No specific limitations in activities of daily living were noted by the examiner. The Veteran was afforded a VA examination for posttraumatic stress disorder (PTSD) in February 2013. The Veteran reported that he had a bachelor's degree and a master's degree in organizational development. He reported that he had worked for over 20 years at a disposal medical device company. He stated that 5 years before the exam, he had started a business making clothes and was managing it full-time, with his daughter and son-in-law employed there. The examiner noted symptoms of depressed mood, chronic sleep impairment, circumstantial, circumlocutory, or stereotyped speech, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner found the Veteran's mental disability caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran was afforded a VA examination for the hip in February 2013. The examiner noted symptoms of pain on movement, disturbance of locomotion, and interference with sitting, standing, or weight-bearing. Despite these noted symptoms, the examiner opined that the Veteran's hip or thigh did not impact his ability to work. The Veteran was afforded a VA examination for the spine in March 2014. The Veteran reported pain with prolonged standing. The examiner noted less movement than normal and pain on movement. The examiner opined the Veteran's thoracolumbar spine condition did not impact his ability to work. Disturbance of locomotion, interference with sitting, and interference with standing were noted. The Veteran was afforded a VA examination for the spine in December 2014. The examiner noted functional loss due to increase in pain and decrease in repetitive motion. The examiner found that the Veteran would be unable to perform work involving repetitive bending, squatting, stooping, kneeling, lifting, or carrying. He would be unable to stand for greater than 30 minutes, or sit for periods of greater than 30 minutes, without accommodative breaks. The Veteran was afforded a VA examination for the spine in April 2017. The Veteran reported that he worked as a scientist for a medical device company for 30 years until retiring in 2007. He stated that he could perform all his indoor and outdoor chores with occasional low back pain. The examiner found the Veteran would have difficulty with many activities, including performing manual labor, because of his back condition. For the reasons that follow, the Board finds that prior to September 10, 2012, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, and therefore referral of the claim is not warranted. Since September 10, 2012, a TDIU is not warranted. The record suggests that the Veteran has both a bachelor's degree and master's degree, as well as a long professional history working for a medical device company. Following retirement from a medical device company, the Veteran managed a family company that either manufactured clothes and provided sales and marketing services for his company. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his lumbar spine, hip, and femoral neuropathy. The VA examination reports indicate that the Veteran is unable to stand or walk for long periods, and is unable to perform repetitive bending, squatting, stooping, kneeling, lifting, or carrying. He would be unable to stand for greater than 30 minutes, or sit for periods of greater than 30 minutes, without accommodative breaks. Despite the Veteran's physical limitations, the Board finds the Veteran would be able to perform work consistent with his work history as a scientist or manager. The Veteran's work history does not require significant bending, squatting, stooping, kneeling, lifting, or carrying. The Board finds that the Veteran could have performed employment consistent with his training, work experience and education with sufficient rest breaks and use of a stool or chair to provide relief from prolonged sitting, standing, or walking for periods greater than 30 minutes. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his unspecified depressive disorder. The VA examination in February 2013 found that the Veteran experienced depressed mood, chronic sleep impairment, circumstantial, circumlocutory, or stereotyped speech, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the examiner concluded that the Veteran's depressive disorder would cause only mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Unfortunately, the Veteran did not complete a VA Form 21-8940. Pursuant to the Remand instructions, the RO sent the Veteran a notice with a request for completion of a Veteran's Application for Increased Compensation Based on Unemployability or Form 21-8940. However, to date, the Veteran has not returned a completed Form 21-8940 to support this claim. While failure to complete the form is not fatal to a TDIU claim in and of itself, the 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 properly address a claim for TDIU. It is not possible, for instance, for the Board to evaluate whether the Veteran's recent work managing a clothing company was substantial gainful employment, part-time work, or work within a protected environment. "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). Given the forgoing, the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, referral of the claim for a TDIU prior to September 10, 2012, is not warranted, and the evidentiary record fails to demonstrate that the Veteran was unemployable due solely to his service-connected physical disabilities for the period from September 10, 2012 to November 5, 2019. The preponderance of the competent and probative evidence is against the claim. As such, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a TDIU prior to November 5, 2019 is denied. JESSICA SEAY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.