Citation Nr: 21041993 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 09-27 705A DATE: July 10, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran's service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the Army National Guard of Georgia from August 1984 to August 1990, with verified periods of active duty from May 20, 1985, to September 13, 1985; active duty for training (ACDUTRA) from August 9, 1986, to August 23, 1986; and inactive duty for training (INACUDTRA) from October 11, 1986, to October 12, 1986. Veteran status has been established for the August 1986 ACDUTRA period based on service-connected injury incurred in that period. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veteran's Affairs (VA) Board of Veterans' Appeals (Board) in October 2012 as to an increased rating issue no longer on appeal; a transcript of the hearing is of record. As noted in its February 2021, Board remand, the record reflects that the Veteran received a letter from VA in September 2020 indicating that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, the Veteran did not have a pending hearing request as he had already provided testimony in the October 2012 hearing before the undersigned VLJ who will consider the transcript of that hearing as evidence in the decision herein. The Board adjudicated the increased rating issue no longer on appeal, most recently, in February 2021. At that time the Board raised the potential issue of entitlement to a TDIU and remanded such to the VA Regional Office (RO) for complete development. The claims file has been returned to the Board in order to adjudicate the raised issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim of entitlement to a TDIU is part of an increased rating claim when such is raised by the record). Entitlement to a TDIU. A TDIU will be granted when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Id. If there is one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, there must be at least one disability rated 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). However, even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board, in it is February 2021 remand, discussed that on VA examination in October 2003, the Veteran reported that he was not working due to back and shoulder disorders. In July 2009, a private examiner, conducting an examination for VA compensation purposes, reported that the Veteran's headaches did not impact his overall functional impairment or usual occupation. On VA examination in May 2010, the examiner reported that the Veteran was in receipt of disability benefits related to other disorders and that his headaches did not interfere with employability. In a March 2014 Disability Benefits Questionnaire (DBQ), the examiner concluded that the Veteran's headaches did not impact his ability to work. On a VA traumatic brain injury (TBI) examination in May 2016, the Veteran stated that his last job was at a junk yard driving a truck for auto salvaging, he reported that he had worked there off and on for three to four years, but lost that job because the owner died four or five years ago. In the October 2019, DBQ, the examiner concluded that the Veteran had very prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability and reported that the Veteran's headaches impacted his ability to work as such would occur every day and cause extreme absenteeism. On a VA TBI examination in November 2019, the Veteran reported that he had not worked in over 10 years. As such, and as noted above, the Board raised the potential issue of entitlement to a TDIU and remanded the raised claim to the RO for complete development in its February 2021 remand. Rice, 22 Vet. App. 447. In a March 2021 letter, the RO advised the Veteran and his representative that the Veteran may be entitled to compensation at the 100 percent rate if he were unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The RO requested that if the Veteran believed he qualified for such a benefit, he should complete, sign, and return the enclosed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and if possible, the enclosed VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits. The Veteran did not respond. The RO issued an April 2021 rating decision and April 2021 Supplemental Statement of the Case (SSOC) denying entitlement to a TDIU, each advising him that a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, was required in order to further consider the claim. Without a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which would identify his last employment, the RO was not able to request a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, from the Veteran's last employer. Simply put, the Veteran's employment history could not be verified or considered. The duty to assist is not a one-way street. If a Veteran wants help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Again, as the Veteran has not provided a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, his employment history could not be verified or considered. Accordingly, the evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance is against the claim of entitlement to a TDIU and therefore the claim must be denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.