Citation Nr: 21064732 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-40 486 DATE: October 21, 2021 REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected major depressive disorder (MDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2001 to March 2003. In April 2020, the Board of Veterans' Appeals (Board) remanded the claim for a TDIU for further evidentiary development. Unfortunately, after a thorough review of the claims file, the Board finds that additional development is necessary prior to the adjudication of this appeal. The Veteran asserts that her service-connected major depressive disorder (which is evaluated as 70 percent disabling and is her only service-connected disability) precludes her from obtaining and maintaining substantially gainful employment. However, as the record currently stands, her employment status needs clarification. She asserts that she currently works for Apple part time and that accommodations were made for her due to her psychiatric disorder. She explained that Apple's administrators were working with her therapist and that she had requested a limited schedule of only four hours a day, at a maximum. See February 2021 Correspondence (Lay/Witness Statement). The AOJ has made attempts to obtain employment status information from Apple. In response, Apple stated that it uses a third party organization to provide online access to employment and income information. It also provided instructions to access that information. See October 2020 Third Party Release of Information. Marginal employment is not considered substantially gainful employment and is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment, such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration is given to the nature of the employment and reason for termination. 38 C.F.R. § 4.16. Currently, the record requires clarification as to whether the Veteran's current employment status at Apple is considered to be marginal. In order for the Board to make a clear and informed decision in this matter, a remand is necessary to accord the AOJ an opportunity to obtain updated information regarding her current employment status and her employment history. In this regard, the Board reminds the Veteran that she is expected to provide the necessary information to obtain these records. While VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA's duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she 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, 68 (1993). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Accordingly, this matter is REMANDED for the following action: 1. Ask the Veteran to submit information regarding the nature of her current occupation at Apple, Inc. This information should include, but is not limited to her schedule (number of days and hours worked), earning statements, pay stubs, tax returns, etc. Also, any information from the Apple's Short Term Disability and Job Accomodation administrators regarding the Veteran's employment status should be sought out and obtained. Instructions regarding employment verification provided by Apple should be referenced and followed. See October 2020 Third Party Release of Information. 2. Then, review the record to ensure all available relevant evidence has been associated with the claims file, conduct any additional development deemed necessary, and readjudicate the appeal. If the benefit sought remains denied, furnish to the Veteran and her representative a supplemental statement of the case (SSOC). They should be afforded appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). She has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.