Citation Nr: 21039758 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-55 455 DATE: July 1, 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 does not otherwise demonstrate to an as likely as not degree that he is unable to obtain or retain gainful employment by virtue of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from July 1980 to August 1986 and from April 1987 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019 the Veteran testified before the undersigned Veteran's Law Judge during a Videoconference hearing. A copy of the transcript is of record. At this hearing, the record was held open for 60 days to allow for the submission of additional evidence. This evidence was accepted for inclusion in the record. See 38C.F.R. §§20.800, 20.1304 (2018). By way of background, this matter was previously before the Board in November 2019 and March 2021. In that November 2019 decision, the Board granted the Veteran's claim of entitlement to compensable rating for hypertension. The Board also remanded the Veteran's claim of entitlement to a disability rating in excess of 10 percent for his right wrist disability, for the purpose of obtaining a VA examination to determine the current severity of his right wrist disability. In the March 2021 decision, the Board denied the Veteran's claim of entitlement to an increased rating for his right wrist disability in excess of 10 percent prior to November 19, 2020 and in excess of 30 percent from November 19, 2020, forward. Additionally, the Board, in relevant part, remanded the Veteran's inferred TDIU claim for additional development. The RO denied the Veteran's TDIU claim in an April 2021 rating decision, returning the matter to the Board. The Board finds that there has been substantial compliance with the Board's March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.900 (c) (2018). 38U.S.C. §7107 (a)(2) (2012). Entitlement to a TDIU. The Veteran contends that he is entitled to a TDIU. See June 11, 2021 Appellant's Post Remand Brief. The Veteran's November 2020 Wrist Conditions examiner reported that the Veteran's right wrist disability impaired his ability to perform sedentary and physical employment due to residuals of right navicular fracture status post wrist fusion (claimed as wrist sprain). The examiner also reported that the Veteran's ability to perform sedentary work is mild to moderately impaired due to limitations of fine right-hand work, picking up. The examiner reported that Veterans ability to perform physical activity of employment is moderately impaired due to limitations of lifting, holding, carrying. See November 2020 Wrist Conditions examination, pg. 10. As such, the Board finds that a claim of TDIU has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 477 (2009). For the reasons explained below, the Board finds that entitlement to a TDIU is not warranted. Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, 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. 38 C.F.R. § 4.16 (a). The Veteran is service connected for the residuals of a right navicular fracture status post wrist fusion, rated as 10 percent and 30 percent disabling; lumbar spine degenerative disc disease, rated as 20 percent disabling; duodenal ulcer, rated as 20 percent disabling; hypertension, rated as 10 percent disabling; radiculopathy, right lower extremity associated with lumbar spine degenerative disc disease, rated as 10 percent disabling; radiculopathy, left lower extremity associated with lumbar spine degenerative disc disease, rated as 10 percent disabling; and scar right hand status post burn with residuals, rated as noncompensable (zero percent) disabling. His combined rating is 60 percent from October 18, 2013; and 70 percent from November 19, 2020. The Board denies entitlement to TDIU as a matter of law. A Veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). A substantially complete VA Form 21-8940 is essential to establishing entitlement to a TDIU because it gathers relevant and indispensable information regarding a Veteran's disabilities, his current employment status and his educational history. However, the Veteran did not return a completed VA Form 21-8940 to support his claim. In March 2021, the Board remanded the matter to provide the Veteran with notice regarding how to substantiate his TDIU claim (to date he has not responded). See March 9, 2021 VA Correspondence re: how to substantiate TDIU Claim. Notably, the Board acknowledges the argument expressed by the Veteran's representative: that the Veteran is entitled to a TDIU based on his service-connected disabilities. See June 11, 2021 Appellant's Post Remand Brief, pgs. 3-4. The Board observes, however, that the representative does not include in this argument, any reason for the Veteran's failure to cooperate with the requested development. Nor does the representative include or attach any information with the June 2021 Post Remand Brief addressing the Veteran's employment status, including the date he last worked full-time or the date the Veteran became too disabled to work. The Board notes that April 2020 treatment records show that the Veteran is employed as a caregiver for a disabled adult with special needs. See April 17, 2020 treatment records; See also April 17, 2017 treatment records re: he works full-time as a certified nursing assistant (CNA). The Board underscores that a substantially complete VA Form 21-8940 gathers relevant and indispensable information regarding a Veteran's disabilities and employment history, including dates of employment, time lost from illness, the date the Veteran last worked full-time and the date the Veteran became too disabled to work. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. See VA Form 21-8940. The burden is on the Veteran to substantiate that he is entitled to a TDIU. The duty to assist is a two-way street. If the 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 relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As referenced above in this decision, a Veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Here, 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 does not otherwise demonstrate to an as likely as not degree that he is unable to obtain or retain gainful employment by virtue of his service-connected disabilities. For the reasons discussed above, the Board finds that entitlement to a TDIU is not warranted; the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.