Citation Nr: 21042662 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-02 640 DATE: July 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran failed to complete VA Form 21-8940, and the evidence is insufficient to establish that he is unemployable as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2006 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in May 2018, June 2020, and March 2021. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. TDIU The Veteran asserts his service-connected disabilities preclude gainful employment. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran meets the criteria for consideration of a TDIU on a schedular basis as of January 16, 2015. 38 C.F.R. § 4.16 (a). Accordingly, what remains to be determined is whether the functional impairment associated with his service-connected disabilities are of such nature and severity as to preclude substantially gainful employment. The Veteran did not complete VA Form 21-8940 as requested in the March 2021 Board remand. While failure to complete the form is not fatal to a TDIU claim in and of itself, his 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 address a claim for TDIU. "The duty to assist is not always a one-way street." Woods v. Gober, 14 Vet. App. 214, 224 (2000). The competent evidence of record does not reflect that the Veteran is unable to work due to his service-connected disabilities; instead it shows that he has been employed during the appeal period. A December 2012 letter from the Veteran states that he had been unemployed for 5 months due to his back condition, but a September 2012 medical report reveals that he was working sitting at a computer all day. A November 2013 medical report demonstrates that the Veteran was working for an air conditioning company. The Veteran's claim for Social Security benefits indicates that he was incapable of working from July 2014. In a January 2015 correspondence, the Veteran reported he began working in the HVAC industry after going to college and technical school but could no longer work. However, in April 2019, the Veteran stated that his "pain is tolerable, and he is able to do all his job requirements as a supervisor in construction work." Here, the record simply does not contain enough information for the Board to find equipoise that the Veteran's service-connected disabilities preclude substantially gainful employment. His failure to complete VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his dates of employment, reason for leaving, and other pertinent information. The Veteran underwent VA examinations in April 2021 for his service-connected bowel, urinary, lumbar, and bilateral upper and lower extremity radiculopathy disabilities. The VA examiner indicated that the Veteran has to take frequent bathroom breaks due to urinary frequency and incontinence and has difficulty with bending and lifting heavy objects, sitting, standing, and walking for long periods of time. The examiner noted that sedentary work is not significantly affected. Without having a complete picture of the Veteran's employment history, educational history, and training, the Board is unable to determine how the Veteran's service-connected disabilities impact his employability. The Board acknowledges that the Veteran may have been unemployed during the appeal period. However, as noted above unemployment and/or underemployment are not equivalent to unemployability, and considerable occupational impairment due to the Veteran's bowel, urinary, lumbar, and bilateral upper and lower extremity radiculopathy are already contemplated in the ratings currently assigned. 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Here, there is no indication in the competent and credible evidence of record that the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. In sum, the Veteran has failed to cooperate with VA's attempts to develop the claim for TDIU, and the record that is 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 for TDIU must be denied. See Wood, 1 Vet. App. at 193. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.