Citation Nr: 21032175 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-19 001A DATE: May 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran did not return a completed VA Form 21-8940 to support his claim of entitlement to a TDIU, and the evidence of record is insufficient to find that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2008 to May 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for PTSD and assigned a 50 percent rating effective June 4, 2014. The Veteran testified at a videoconference hearing before the undersigned in March 2019. A written transcript of that hearing has been prepared and is associated with the evidence of record. In September 2019, the Board remanded the claim of entitlement to an increased rating for PTSD for development and a new VA examination. Additionally, in the September 2019 remand, the Board found that a TDIU claim was part and parcel of the Veteran's claim for an entitlement for an increased rating for PTSD. See Rice v. Shinseki, 11 Vet. App. 447 (2009). In an April 2020 rating decision, the RO increased the rating for PTSD to 70 percent, effective from January 29, 2020. In a November 2020 decision, the Board granted an initial rating of 70 percent for PTSD and remanded the issue of entitlement to a TDIU for additional development. Entitlement to a TDIU Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. For the Veteran to prevail on a claim for TDIU, the record must reflect that the Veteran is precluded from engaging in substantially gainful employment consistent with his education and occupational experience. Substantially gainful employment is work which is more than marginal, which permits the individual to earn a "living wage." 38 C.F.R. § 4.16 (b); Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. Here, for the entire period on appeal, the Veteran was service-connected for the following disabilities: (i) posttraumatic stress disorder (PTSD), rated as 70 percent disabling; (ii) bilateral plantar fasciitis, rated as 50 percent disabling; (iii) tinnitus, rated as 10 percent disabling; (iv) right hip trochanterisher, rated as 10 percent disabling from May 11, 2016; (v) right knee patellofemoral pain syndrome, rated as 10 percent disabling from May 11, 2016; (vi) right ankle sprain, rated as 10 percent disabling from February 4, 2017; (vii) lumbosacral strain, rated as 40 percent disabling prior to May 1, 2018 and as 10 percent disabling thereafter; (viii) left hip trochanteris, rated as 10 percent disabling from January 31, 2020; (ix) left knee strain, rated as 10 percent disabling from January 31, 2020; (x) left ankle sprain, rated as 10 percent disabling from January 31, 2020; (xi) migraine, rated as noncompensable from February 4, 2017; (xii) left hip limitation of flexion, rated as noncompensable from January 31, 2020; and (xiii) left hip limitation of extension, rated as noncompensable from January 31, 2020. These disabilities combine to a 90 percent disability rating prior to May 11, 2016 and from May 1, 2018 to January 30, 2020, and to a 100 percent disability rating from May 11, 2016 to April 30, 2018 and since January 31, 2020. Thus, for the entire appeal period, the Veteran met the schedular requirements for a TDIU. Therefore, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16 (a). The Board finds there is insufficient evidence of record to show that the severity of the Veteran's service-connected disabilities precludes him from securing and following a substantially gainful occupation in light of his education, training, and employment background. Pursuant to the Board's September 2019 remand instructions, in December 2019, VA furnished the Veteran with a notice letter and requested that he complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran did not provide the requested information. Similarly, pursuant to the Board's November 2020 remand instructions, in December 2020, VA again furnished the Veteran with a notice letter and requested that he complete VA Form 21-8940. To date the Veteran has not submitted a VA Form 21-8940. While failure to complete a VA Form 21-8940 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 the claim. The Board notes that "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); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993). In the present case, while it is clear that the Veteran's service-connected PTSD, along with his other service-connected disabilities, affect his occupational functioning, the evidence also reflects that the Veteran has been gainfully employed throughout the pendency of this appeal. In this regard, the record shows that the Veteran has been employed as a police officer for the entire appeal period. VA treatment records as recent as October 2020 reflect that the Veteran was still employed in that capacity and that he "[f]eels he is thriving at work and enjoys being a training officer." See October 2020 VA Treatment Record. The Board acknowledges evidence in the record regarding periods of unemployment and possible accommodations at work, such as using different types of vehicles and working at a desk job. See April 2020 VA PTSD Examination Report; March 2019 Hearing Transcript. However, because the Veteran failed to provide the requested VA Form 21-8940, the Veteran's file lacks specific information about how the Veteran's service-connected disabilities render him unemployable. The Veteran has not provided evidence that he lost his job, or that his occupation was not substantially gainful. There is no evidence of when (or if) the Veteran became unemployed or unemployable, and there is very limited information regarding his past employment experience and educational background. While the Board has tried to obtain additional evidence, the Veteran has not provided it. Given this, the Board finds that the most probative evidence shows that the Veteran is not unable to secure or maintain gainful employment due to his service-connected disabilities. In sum, the evidence of record does not sufficiently show that the Veteran cannot perform the acts required by employment due to his service-connected disabilities. Moreover, insofar as the Veteran's service-connected disabilities have an effect on his occupational functioning, a disability rating in itself is recognition that the ability to work is impaired. 38 C.F.R. § 4.1. Without evidence to substantiate that the Veteran is currently unemployed, or that the Veteran's current employment is not substantially gainful, the Board finds that the criteria for TDIU are not met in this case. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.