Citation Nr: 22017730 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 15-30 323 DATE: March 26, 2022 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities have not precluded him from securing and following a substantially gainful occupation at any time during the pendency of this claim. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION In September 2021, the Board of Veterans' Appeals (Board) granted the claims for higher initial ratings then on appeal and remanded the raised claim for a TDIU for further development. At that time, the record showed that the Veteran was service-connected for numerous disabilities and that his combined service-connected rating was 80 percent since June 1, 2007. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). A TDIU 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). VA is charged with finding facts and applying the appropriate legal standards, including using its judgment to determine whether the § 4.16 standard has been met, and may not delegate this duty. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). As noted above, there is no question that the Veteran meets the schedular criteria for a TDIU. The combined evaluation for compensation of his numerous service-connected disabilities is now 90 percent from June 1, 2007 and 100 percent from October 30, 2014. However, after further review, the Board observes that there is no objective evidence showing that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In the remand portion of the prior decision, the Board asked the Veteran to provide a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. However, to date, he has not provided a completed VA Form 21- 8940. While VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he also has a duty to assist and cooperate with VA in developing evidence. VA's duty to assist is not a one-way streetif a 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 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993). Thus, as the record stands, there is no objective documentation that the Veteran has been unemployed at any time during the pendency of this claim. A veteran's actual employment in a substantially gainful occupation is prima facie evidence of employability. Faust v. West, 13 Vet. App. 342 (2000) (where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1)). Also, the medical evidence of record shows that the Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. Every VA examination report completed during the pendency of this claim (from October 2007 to October 2020) that addressed his employment status indicated that he was working full time. Significantly, actual employment in a substantially gainful occupation is prima facie evidence of employability. Id. Accordingly, given the above, the Board finds that the Veteran's service-connected disabilities have not precluded him from securing and following a substantially gainful occupation. Accordingly, a TDIU is not warranted. As the evidence of record persuasively weighs against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.