Citation Nr: 21074040 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-09 972 DATE: December 14, 2021 REMANDED Entitlement to an increased rating for a mood disorder, not otherwise specified, rated as 30 percent disabling prior to March 30, 2010, and as 50 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to May 1972 and from August 1973 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which continued a 30 percent rating for the service-connected mood disorder. In March 2014, VA increased the rating for mood disorder to 50 percent effective from March 30, 2010, and in June 2021, it increased the rating to 70 percent, effective from June 10, 2021. In September 2017, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer employed in that capacity. The Veteran was advised in a January 2021 letter (sent to his current address of record) that the law requires that the VLJ who conducts a Board hearing on appeal must participate in any decision on that appeal. The Veteran was asked whether a Board hearing with another VLJ who could participate in deciding the appeal was desired. The Veteran failed to respond to the letter and there is no hearing request outstanding. In March 2018 and March 2021, the Board remanded the claims for additional development. The Board notes that the issue of the propriety of a reduction in benefits due to removal of a dependent spouse, effective July 1, 2012 is also on appeal; however, it will be addressed in a separate decision. The Board regrets the additional delay but finds that another remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claims, so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's VA treatment records indicate that during the period on appeal, he moved out of state, and worked (after his retirement from the New Athens, Illinois Police Department), in Indiana and/or Illinois, and that he has also obtained treatment at other VA medical centers (VAMCs) aside from the St. Louis VAMC during the period on appeal. See, e.g., VA treatment notes dated in May and December 2015 and July 2018. None of the Veteran's VA treatment records have been obtained for any treatment outside of the St. Louis VA healthcare system. The Board finds that this appeal must be remanded so that adequate attempts can be made to identify and obtain any records of any VA medical treatment that was obtained outside of the St. Louis VA healthcare system, to specifically include at VA medical centers in Indiana and Illinois. The Veteran should be asked to identify any locations and dates of medical evaluation or treatment for any psychiatric conditions since April 30, 2009. Attempts should then be made to obtain any outstanding VA treatment records, to include any updated records from the St. Louis VAMC and any other records from VAMCs in Indiana or Illinois. Additionally, the Board notes that in its March 2018 and March 2021 remands, it directed the Agency of Original Jurisdiction (AOJ) to "[d]evelop the claim of entitlement to a total disability rating based on individual unemployability, to include asking the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability." The record reflects that the Veteran has not responded to VA's request to complete and return that form. The duty to assist is a two-way street. If 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 putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). As the claim is being remanded for VA treatment records, the Board finds it prudent to also direct additional development of the TDIU claim, once again, especially in light of the VA treatment records showing that the Veteran was working, at one point in time, after his retirement from the New Athens, Illinois Police Department. Thus, on remand, the Veteran should be asked to identify all employers of his since April 30, 2009, and to list his dates of employment, job titles, and the amount of his earnings during his employment with each such employer. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any locations and dates of medical evaluation or treatment for any psychiatric conditions since April 30, 2009. 2. Obtain all outstanding VA treatment records, including but not limited to any updated VA treatment records from the VA St. Louis healthcare system, and any records for treatment obtained at VA medical centers in Illinois and Indiana. 3. Ask the Veteran to report his complete employment history (to include start and end dates of any employment, job titles, and amount of earnings with each employer (including self-employment)) for the period from April 30, 2009 to present. Advise the Veteran that it is his duty to cooperate with the development of his claim. 4. Ask the Veteran to (a) complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability; and (b) provide any available documentation of his earnings since April 30, 2009 (including, for example, copies of pertinent W2s and/or an earnings statement from the Social Security Administration for each year from 2009 through the present). Complete any additional development of the Veteran's work history and earnings that is appropriate, in light of his response(s) to the development listed in the directives above. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.