05-14 794, 05-14 794

Background

Veteran served Aug 1966–Jun 1969 and filed for increased rating and later for TDIU; multiple RO and Board decisions and CAVC remands occurred between 2005–2016.
May 2011 Joint Motion for Remand required the Board to consider whether a TDIU claim was reasonably raised.
Board found TDIU was raised in Dec 2011 and remanded for development; RO issued denials in Apr 2014 and Apr 2015; appellant did not timely appeal the April 2015 denial.
June 2016 remand directed the Veteran to complete VA Forms 21‑8940 (TDIU application) and 21‑4192 (employment release) so VA could obtain employment evidence; VA sent the forms and follow‑up correspondence.
In Sept 2016 the Veteran expressly declined to provide the completed forms or releases; critical employment records therefore could not be obtained and the record remained incomplete.
VA examinations and medical opinions existed but were inadequate without complete employment history; Board concluded further development would be pointless given the Veteran’s refusal to cooperate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether VA must adjudicate TDIU despite Veteran’s refusal to provide required employment forms/releases	Veteran/representative urged entitlement to TDIU based on service‑connected disabilities and prior statements about inability to drive	VA argued the Veteran failed to cooperate by refusing to submit VA Forms 21‑8940 and 21‑4192, preventing development of critical evidence	Board held the claim abandoned under 38 C.F.R. § 3.158(a) because Veteran refused to provide requested evidence and thus dismissed the appeal
Whether VA satisfied its duty to assist before dismissing claim	Veteran implied VA should obtain records and fully adjudicate merits without his forms	VA contended it fulfilled duty to assist (service and postservice records obtained; examinations conducted) and further development was futile without Veteran’s cooperation	Board found VA met assistance obligations and no further development was required given the Veteran’s refusal
Whether the Board must wait one year after requesting evidence before deeming claim abandoned	Veteran argued procedural protections include waiting period	VA noted regulation but also pointed to Veteran’s explicit refusal to comply, which rendered waiting period moot	Board concluded that the Veteran’s explicit refusal waived the one‑year waiting period and claim is abandoned
Whether further remand is required given prior remand instructions	Veteran sought merits adjudication; AOJ continued to adjudicate on merits despite incomplete record	VA maintained further remand would be futile because law mandates abandonment when claimant refuses requested evidence	Board held no further remand necessary and remanding again would serve no useful purpose

Key Cases Cited

Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA notice and assistance principles)
Barr v. Nicholson, 21 Vet. App. 303 (2007) (development may be futile when claimant refuses to cooperate)
Jernigan v. Shinseki, 25 Vet. App. 220 (2012) (VA regulations binding regardless of claimant’s knowledge)
Hurd v. West, 13 Vet. App. 449 (2000) (claim considered abandoned when requested evidence not furnished within one year)
Hyson v. Brown, 5 Vet. App. 262 (1993) (claimant’s waiver of further time to respond can render waiting period moot)
Wood v. Derwinski, 1 Vet. App. 190 (1991) (claimant must cooperate with VA development)
Stegall v. West, 11 Vet. App. 268 (1998) (limitations on remands and requirement to comply with remand instructions)