Citation Nr: 21065698 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 20-09 675 DATE: October 27, 2021 REMANDED Entitlement to a rating in excess of 70 percent for service-connected major depressive disorder (MDD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Marine Corps from February 1975 to April 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified at a virtual hearing before the undersigned. During his October 2021 hearing, the Veteran testified that he was unable to maintain employment due to his MDD. His testimony raises the issue of entitlement to a TDIU due to his service-connected MDD and the Board has therefore added the issue to the appeal herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a September 2020 letter, the Veteran's representative stated that he had not received a copy of the July 2020 VA examination and requested a copy be provided. At the October 2021 hearing, the Veteran's representative stated he had been provided a copy of the examination and that there were no additional records being sought. As such, there are no outstanding FOIA requests to be fulfilled and the Board may proceed with adjudication. 1. Entitlement to a rating in excess of 70 percent for service-connected major depressive disorder (MDD) is remanded. Upon consideration of the evidence of record and the Veteran's testimony at the hearing, the Board finds that additional development is needed prior to issuing a decision on appeal. The Veteran testified that he has continued to receive mental health treatment from VA in the last two years. The claim file reflects that only VA treatment records up to December 2019 have been associated with the Veteran's file. See Lang v. Wilkie, Fed. Cir. (Decided Aug. 19, 2020) (holding that it is reasonable to presume VA is in the constructive possession of any and all VA medical records for an applicant during the appellate time frame). On remand, any outstanding treatment records must be obtained. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran has not been provided with notice of the laws and regulations governing TDIU. See 38 C.F.R. § 4.16. As such, the TDIU claim will be remanded as well. Additionally, because the development sought in connection with the Veteran's claim for a higher rating for his MDD may impact his TDIU claim, the Board finds the issue to be intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. Specifically, any and all records after 2019 should be sought. The evidence obtained should be associated with the record. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU. 3. Contact the Veteran and request that he provide proof of his annual salary throughout the course of the appeal, such as copies of salary statements, wage receipts, W-2s, and/or tax returns. 4. Send a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, to any employer listed on the Veteran's submitted VA Form 21-8940. 5. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.