Citation Nr: 21040815 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-33 152 DATE: July 7, 2021 ORDER Entitlement to a total disability rating based on unemployability (TDIU) is denied. FINDING OF FACT As the Veteran failed to complete a VA Form 21-8940 and provide other requested earnings and employment information, the evidence is insufficient to establish whether he was gainfully employed during the appeal period. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from March 1969 to October 1970. The Veteran appeared before the undersigned Veterans Law Judge at an October 2019 Board hearing. This matter returns to the Board from a January 2021 Board remand. 1. Entitlement to a total disability rating based on unemployability (TDIU) The issue of entitlement to TDIU was raised by the record. The Board remanded the issue in the January 2021 decision to afford the Veteran the opportunity to submit a VA Form-8940, Application for Increased Compensation based on Unemployability. In accordance with the remand directives, the Agency of Original Jurisdiction (AOJ) mailed the Veteran the VA Form-8940, Application for Increased Compensation based on Unemployability in January 2021. A second attempt to obtain the Veteran's employment information was made in February 2021. The AOJ requested the Veteran complete the form and return it to VA. Both letters indicated the Veteran should complete, sign, and return the form if he believed he qualified for a total (100 percent) rating based upon unemployability. No response to these requests was received from the Veteran. The Veteran's representative submitted a brief in support of the claim in May 2021, but this brief does not contain any new information that is not already of record. In an April 2021 supplemental statement of the case, the AOJ denied the claim for TDIU. The AOJ emphasized that the Veteran had not responded to its January and February 2021 requests for additional information. His failure to respond was cited as the basis for the denial. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). Although VA has a duty to assist, this duty is not "a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 191 (1991). The Veteran has information about his employment efforts and his employment history that he can provide without significant burden. This information is necessary for proper consideration of TDIU as employability is a fundamental aspect of the equation. As VA does not generally have the Veteran's employment history, he cannot "passively wait for [help] in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Id. The Veteran has not provided information necessary to trigger VA's duty to assist and has otherwise not provided sufficient information to establish entitlement to TDIU. The Board acknowledges that the Veteran is service-connected for a myriad of disabilities, including post-traumatic stress disorder (PTSD) and prostate cancer, which may render him unable to obtain and maintain substantially gainful employment. The assignment of a 70 percent rating for PTSD certainly connotes that he is likely to experience difficulty in adapting to stressful circumstances (including work or a work like setting.However, this is not sufficient information for TDIU. "The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The details of his employment history are necessary to determine if the Veteran could perform a different type of work or any type of work. As the Veteran has not provided sufficient information for VA to further assist him or to determine that he is unemployable, TDIU must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.