Citation Nr: 22018550 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 14-38 008 DATE: March 29, 2022 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In its October 2020 decision, the Board of Veterans' Appeals remanded the matter for the Veteran to submit a VA Form 21-8940, which was mailed to the Veteran in a March 16, 2021 Correspondence. 2. In its July 2021 decision, the Board of Veterans' Appeals informed the Veteran that "adjudication of entitlement to a TDIU cannot proceed" without submission of a VA Form 21-8940, and remanded the matter for the Veteran to submit the form, which was mailed to the Veteran in a September 2021 Correspondence. 3. At the time of issuing the present decision, the Veteran has not submitted a VA Form 21-8940. 4. The Board is unable to determine whether the Veteran meets the economic and noneconomic components of a TDIU. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.158, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1966 to August 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision (which awarded service connection for ischemic heart disease) by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018) In December 2017, the Veteran and his daughter testified before the undersigned Veterans Law Judge at a Board hearing. In June 2018, October 2020, and July 2021, the Board remanded this matter for further development. In October 2020, the Board remanded the matter for the Veteran to submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). In a March 16, 2021 Correspondence, the AOJ enclosed a VA Form 21-8940 and requested that he complete and return it. The Veteran had not submitted a VA Form 21-8940 by the time the matter returned to the Board, and in July 2021, the Board informed the Veteran that "adjudication of entitlement to a TDIU cannot proceed" without submission of a VA Form 21-8940. The Board further explained that if the Veteran wished to pursue a claim for entitlement to a TDIU he should complete and return the VA Form 21-8940. The Board remanded the matter for the Veteran to submit the form, which was mailed to the Veteran in a September 2021 Correspondence. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). At the time of issuing the present decision, the VA has not received a VA Form 21-8940 from the Veteran. Without information that would be provided in the form, the Board is unable to determine whether the Veteran meets the economic and noneconomic components of entitlement to a TDIU, specifically with respect to income, dates of employment, types of employment, and reasons for unemployment. Ray, 31 Vet. App. at 73. VA Form 21-8940 requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. This information can be critical to resolution of this case. Moreover, the Court has indicated that failure to provide this Form or equivalent information can constitute abandonment of the TDIU claim. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012); see also 38 C.F.R. § 3.158. The Board notes that it has been over one year since the initial request for completion of VA Form 21-8940 in March 2021. Although the record contains some information regarding his employment history, the Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. See, e.g., May 2019 VA psychiatric examination (noting the Veteran retired 3 years prior to his last examination); January 2018 VA psychiatric examination (noting the Veteran's prior work as an electrician, as well as in steel and concrete, and that he retired from working). The Board's July 2021 decision advised the Veteran that "adjudication of entitlement to a TDIU cannot proceed" without submission of a VA Form 21-8940, and that if the Veteran wished to pursue a claim for entitlement to a TDIU he should complete and return the VA Form 21-8940. As the Veteran has not submitted the VA Form 21-8940 after it was requested by two Board remands, the Board is left to conclude that the Veteran does not wish to pursue a claim for entitlement to a TDIU. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (holding the VA's duty to assist the Veteran is a two-way street). In addition, as explained in July 2021, the record lacks information to adjudicate entitlement to a TDIU without the completed form. Accordingly, entitlement to a TDIU must be denied. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.