Citation Nr: 22016606 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-54 166 DATE: March 22, 2022 REMANDED Entitlement to an increased rating in excess of 30 percent for major depressive disorder, single episode, moderate, with anxious distress, hereinafter "acquired psychiatric disorder" is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disability is remanded. REASONS FOR REMAND The Veteran had active duty service from January 2014 to February 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2017 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran requested a Board hearing. In a March 2020 correspondence, the Veteran, through her attorney, notified the Board that she wished to waive her right to have a Board hearing. Thus, the Board deems the Veteran's Board hearing request withdrawn. The Board notes that relevant VA treatment records were added to the file after the most recent September 2017 Statement of the Case (SOC). In a June 2020 correspondence, the Veteran, through her attorney, waived Agency of Jurisdiction (AOJ) review of the post September 2017 SOC evidence. However, as the appeal is being remanded, these records will be initially reviewed by the AOJ. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran had a private VA examination for Mental Disorders in June 2019. The Veteran reported that she works once or twice a week at Rite Aid for a total of 11 hours, and that she likes to work in the morning when it is mostly quiet, because she does not like being around people very much as she becomes easily stressed. The private examiner remarked that the Veteran has little motivation or energy and can barely tolerate working 11 hours per week. The Veteran's attorney essentially re-iterated this information in a June 2020 correspondence, adding that the Veteran is "unable to work productively." The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The Board finds that entitlement to a TDIU due to service-connected disability has been raised by the record as part and parcel of the Veteran's increased rating claim for her service-connected acquired psychiatric disorder. There is evidence that the Veteran may be working sporadically, as she works "one or two" days per week, and/or that she may be marginally employed. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to an increased rating in excess of 30 percent for an acquired psychiatric disorder is remanded. The Veteran asserts that her acquired psychiatric disorder symptoms are more severe than those associated with the currently assigned 30 percent disability rating. The Veteran's most recent VA examination for mental disorders was in May 2016, nearly 6 years ago. Although the Veteran had the aforementioned private psychiatric examination in June 2019, the Board finds that the evidentiary record is not ripe for adjudication. At the June 2019 examination, the Veteran reported having psychiatric treatment for her psychiatric disorder at the Beckley VA. The most recent Beckley VA treatment records of record are dated August 2017. As the record reflects that the Veteran has had regular psychiatric treatment at Beckley VA from April 2016, it appears that over 4 years of her psychiatric are not of record. Additionally, the private opinion does not consider and discuss the symptomatology in the relevant diagnostic criteria. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. Thus, a remand is required to obtain the Veteran's updated VA psychiatric treatment records. Entitlement to a TDIU is remanded. The Board does not have enough information to adjudicate the issue of entitlement to a TDIU, thus the matter must be remanded for development. The Board does not have sufficient information regarding the Veteran's employment and educational history. Thus, a remand of the TDIU claim is also required. The matters are REMANDED for the following action: 1. Update the Veteran's VA and private treatment records, with any help necessary from the Veteran. 2. Ask the Veteran to complete a VA Form 21-8940. The Veteran should also be notified that under 38 C.F.R. § 3.158 (a) that her claim for a TDIU will be considered abandoned if she fails to cooperate by providing the completed VA Form 21-8940. 3. After all outstanding treatment records have been obtained, schedule the Veteran for an examination by a psychologist or psychiatrist to determine the current severity of her service-connected acquired psychiatric disorder. The examiner should provide a full description of the psychiatric disorder and report all signs and symptoms necessary for evaluating the psychiatric disorder under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of psychiatric symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.