Citation Nr: 21041074 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-23 025 DATE: July 8, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran did not return a completed VA Form 21-8940 (Application for TDIU) to support the claim and there is no competent and credible evidence of record demonstrating that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for the assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from September 1988 to September 2012. The Veteran testified before the undersigned Veterans Law Judge in a February 2019 video-conference Board hearing. A transcript of the hearing is associated with the record. In December 2020, the Board remanded the inferred issue of entitlement to a TDIU, as well as the service connection claim for a cervical/thoracic spine disorder for further development. Subsequently, in a March 2021 rating decision, the RO granted service connection for a cervical spine disability, and as such, this is considered a full grant of benefits on appeal with respect to the cervical spine. The remaining issue before the Board is entitlement to a TDIU. Entitlement to a TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Here, pursuant to the Board's remand, in December 2020, the RO sent the Veteran VA Form 21-8940, Veterans Application for Increased Compensation based on Unemployability, as well as VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, and requested that he complete and return the forms. The Veteran failed to submit this evidence. In January 2021, the RO again enclosed the requisite forms and requested he complete and return the forms along with other correspondence. In February 2021, the RO sent the Veteran yet another letter asking for this information, and again, he did not submit this evidence. In March 2021, the RO contacted the Veteran by telephone in an attempt to obtain the information needed for adjudication of the claim for a TDIU, and he verbally responded that he had no additional comments or evidence. Later in March 2021, the RO denied the claim for entitlement to a TDIU due to the lack of evidence needed for adjudication of the claim and issued a supplemental statement of the case reflecting such denial. The evidence of record shows that the Veteran retired from the Air Force in 2012. His DD-214 reflects that he served as an aircrew instructor and flight engineer in service. Service connection is in effect for right and left hip labral tears with thigh impairment, right and left hip labral tears status post arthroscopy, and right and left hip labral tears with limited flexion, status post arthroscopy, rated as 60 percent disabling combined; a left hand disability as 20 percent disabling; a low back disability rated as 20 percent disabling; a cervical spine disability rated as 10 percent disabling; tinnitus rated as 10 percent disabling; lower lip scar rated as 10 percent disabling; a left thumb disability rated as 10 percent disabling; a right wrist disability, right finger disability, status post synovial sarcoma of the left hand, a paramacular scar OS, allergic rhinitis, a scar of the lower lip, a scar of the right forearm, post arthroscopy scars of the right and left hips, and left hand scar, rated as noncompensable. His combined rating was 70 percent from October 1, 2012, and 90 percent from December 16, 2019. The Veteran has "one" service-connected disability rated as 60 percent disabling and therefore meets the minimum schedular requirements for TDIU benefits. 38 C.F.R. § 4.16 (a). On review however, the Board finds that the record does not demonstrate that the Veteran's service-connected disabilities preclude substantially gainful employment. As outlined above, the Veteran has not provided a TDIU application regarding his current and past employment history, educational background, and income, despite numerous requests to do so. Although some medical evidence suggests that some of the Veteran's service-connected disabilities may have caused some work difficulties and the Veteran testified that he was not working, it is unclear when or why the Veteran stopped working due to the lack of evidence submitted by the Veteran. The Veteran's failure to provide the necessary information for adjudication of a TDIU deprives the Board of information as to the Veteran's employment history and educational background, which is necessary for adjudication of a claim for TDIU. The Board emphasizes that the duty to assist is a two-way street. Due to the Veteran's failure to provide VA with necessary information to adjudicate his claim despite multiple attempts to obtain such information, there is no further duty to assist. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, the record before the Board does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. Thus, the claim of entitlement to TDIU must be denied. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.