Citation Nr: 21029834 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-25 837 DATE: May 17, 2021 REMANDED Entitlement to an initial rating in excess of 70 percent for major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU). REASONS FOR REMAND The Veteran served on active duty from October 2011 to June 2012. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2015 and November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The March 2015 rating decision granted service connected for major depressive disorder and assigned a 70 percent disability rating effective July 30, 2014. In August 2015, the Veteran submitted her formal claim for a TDIU which the RO also construed as a claim for a higher rating for service-connected major depressive disorder. The November 2015 rating decision continued the 70 percent disability rating for major depressive disorder and denied the TDIU claim. The Veteran submitted a notice of disagreement (NOD) in December 2015; a statement of the case was issued in April 2016; and the substantive appeal was received in June 2016. In March 2021, the Veteran testified before the undersigned Veterans Law Judge; a transcript is of record. As noted, the Veteran testified at a hearing before the undersigned in March 2021. The record was held open for 30 days to allow the Veteran to submit, inter alia, an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and updated VA mental health treatment records. Specifically, the Veteran testified that she receives ongoing psychiatric treatment (2 to 3 times per month) from two different VA facilities one in Columbia, South Carolina and one in Massachusetts. She reported that since the pandemic, her counseling sessions with her treating psychiatrist and psychologist have been virtual and/or via phone. She also testified that her psychiatric condition has worsened. She endorsed isolation, some memory issues, intermittent problems with personal hygiene, and severe social impairment. The most recent VA mental health treatment records contained in the claims file are dated in February 2020. Because the outstanding VA mental health treatment records are germane to the nature and severity of the Veteran's service-connected psychiatric disorder, they should be obtained upon remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). With respect to the TDIU claim, the Veteran submitted a VA Form 21-8940 in August 2015. At that time, she reported that she last worked on a fulltime basis in June 2015. Her occupation was described as a human resources assistant (from 2013 to 2015) and phlebotomist (from 2002 to the present on a per diem basis), with a reported annual income of $30,000.00 in the past 12 months. She further indicated that she had a college level education and that she had been enrolled in a master's program which she did not pursue because of her disability. VA treatment records dated in January 2015 reflect that the Veteran requested assistance with paperwork for a Workers' Compensation claim. During her February 2015 VA mental disorders examination, the Veteran reported that she was employed at the Northampton VA in the personnel department; as of February 16, 2015, the Veteran was on Family and Medical Leave Act (FMLA) "due to her depression and anxiety that began when she was overseas." VA treatment records dated from 2018 to 2020 reflect that the Veteran reported that she was working in phlebotomy 40 hours "most weeks" on a per diem basis. Given the above, the Board finds that the TDIU claim must be remanded for additional evidentiary development. In particular, the Veteran should be asked to submit an updated VA 21-8940 as there is conflicting evidence as to her employment status throughout the appeal period. In addition, the AOJ should request documents pertaining to her income from 2014 to the present. Lastly, the Veteran testified that she applied for (and was denied) disability benefits from the Social Security Administration (SSA) on more than one occasion. See Hearing Transcript, p. 12. At present, there are no records from the SSA in the claims file, and there is no evidence to indicate that any attempts have been made by VA to obtain the Veteran's records from SSA. Because such records may be pertinent to the current claims, an attempt must be made to obtain these records on remand. The matters are REMANDED for the following action: 1. Undertake additional development to determine the Veteran's complete occupational history and the income she has generated during each year of the pertinent period on appeal. As part of that development, ask the Veteran to complete and return an updated VA Form 21-8940. Additionally, request that the Veteran submit information verifying her income for the years 2014 to 2020 (i.e., copies of her social security statement of earnings, W2 Forms, tax returns, etc.,) so that it can be determined whether any of her employment was marginal. 2. Obtain any outstanding VA treatment records dated since February 2020, to particularly include any and all records of her virtual/telephonic psychiatric counseling sessions conducted at VAMCs located in Massachusetts and South Carolina. See Board Hearing Transcript (noting that the Veteran resides in two different states). 3. Request and obtain from the SSA all documents pertaining to any application(s) by the Veteran for SSA disability benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering any decision or determination. Any negative search result should be noted in the record and communicated to the Veteran. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be re-adjudicated based on the entirety of the evidence. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.