Citation Nr: 21015081 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-09 972 DATE: March 16, 2021 REMANDED 1. 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. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 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, resulting in staged ratings. 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. In addition, 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, the Board remanded the claims for additional development. The Board regrets 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 (2018); 38 C.F.R. § 3.159 (2019). In the March 2018 remand, the Board, in pertinent part, instructed the agency of original jurisdiction (AOJ) to develop the claim for a TDIU including requesting the Veteran to complete a VA Form 21-8940 and to schedule the Veteran for a VA examination for his mood disorder. A review of the record reveals that in May 2019, the AOJ sent a letter to the Veteran and requested that he return a completed VA Form 21-8940. The Veteran did not respond to the letter. The VA examination was requested but was canceled in July 2019 due to the Veteran’s failure to report. The record does not contain any correspondence to the Veteran informing him of the scheduled date and time of the VA examination. Additionally, a review of the claims file reveals that various letters sent to the Veteran during the period from May 2019 to November 2019 are addressed to the Veteran at both a street address and PO Box. Then, in correspondence dated in July 2020, the Veteran’s representative advised that the Veteran had a new (third) address. Based on the foregoing, the Board finds that there is no evidence that the Veteran was properly notified of the scheduled VA examination or received the subsequent development letter for the TDIU claim. Therefore, the development conducted does not adequately comply with the March 2018 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board concludes that remand is appropriate to afford the Veteran another opportunity to submit additional evidence for the TDIU claim and report for the examination. The matters are REMANDED for the following action: 1. Conduct the appropriate development to confirm the Veteran’s current address. 2. Develop 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. 3. Schedule the Veteran for a VA psychiatric examination. The Veteran’s claims file must be available for review. In accordance with the latest worksheets for evaluating mental health disorders, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of service-connected mood disorder. The examiner is to discuss the impact of the Veteran’s mood disorder on his ability to obtain and maintain substantially gainful employment. A complete rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 5. Then, readjudicate the appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. If the Veteran again fails to report for a scheduled VA examination, he should be notified of that failure, and the consequences of such, in any supplemental statement of the case issued. Then, return the case to the Board. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.