Citation Nr: 22014080 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-24 119 DATE: March 11, 2022 REMAND Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from July 1964 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This appeal originally included a claim for service connection for heart conditions. However, this claim was granted during the pendency of the appeal in a September 2021 rating decision. As such, there remains no case or controversy concerning entitlement to benefits for this claim, and that issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In an October 2021 rating decision, the RO determined that the record raised the issue of whether the Veteran could no longer obtain or maintain substantially gainful employment based on his September 2021 heart conditions examination. Because the issue of TDIU had been raised by the record, the RO sent correspondence on September 27, 2021, stating that the Veteran may be eligible for TDIU and requesting the Veteran complete and return the enclosed Forms VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability and 21-4192, Request for Employment Information in Connection with Claim for Disability. The Veteran did not return these forms. In an October 2021 rating decision, the RO found the Veteran met the criteria for TDIU from September 9, 2021, the date of his most recent heart conditions examination. In February 2022, the Veteran's representative submitted an Appellant's Brief in which they argue that the Veteran's service-connected disabilities impacted his ability to obtain or maintain substantially gainful employment prior to September 9, 2021. In part, the representative argues that the Veteran's disabilities markedly interfered with daily activities. The representative also argues that the Veteran's claim for TDIU should be considered on an extraschedular basis due to "exceptional and unusual symptoms and severity of his service-connected disabilities." However, the existing record is not adequate to adjudicate the claim because the Board is unable to ascertain when, if ever, the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantial gainful employment prior to September 9, 2021. 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board notes the RO previously sent the Veteran a Form 21-8940 in September 2021 that he did not return. However, the Board cannot make a decision on entitlement to a TDIU without the information on this form or additional information on his service-connected disabilities and their impact on his ability to work. The Board reminds the Veteran that the burden is on him 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). Therefore, the Board will remand this matter to allow the Veteran one more opportunity to submit a complete VA Form 21-8940. Accordingly, this matter is REMANDED for the following action: 1. Send the Veteran correspondence requesting that he complete VA Form 21-8940. Application for Increased Compensation Based on Unemployability, as well as provide any additional evidence that is relevant with regard to his claim for a TDIU. The Veteran should be advised that the failure to complete and submit a VA Form 21-8940 may result in the denial of the benefit sought. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.