Citation Nr: 1312205 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 07-28 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to mood disorder with personality changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and his brother ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to March 2004. He also had service with the United States Army Reserve. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2006 from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which granted service connection for a mood disorder with personality changes and assigned a 20 percent disability rating for that disorder from March 20, 2004. This matter was thereafter transferred to the RO in St. Petersburg, Florida. During the course of the appeal, in a July 2007 rating decision, the RO granted a 40 percent disability rating effective from March 20, 2004. The Veteran was granted a temporary total disability rating for his PTSD from January 1, 2010, to February 28, 2010, due to psychiatric hospitalization. In a March 2011 decision, the Board denied the Veteran's initial disability rating in excess of 40 percent for his psychiatric disability. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In October 2011, the Court granted a Joint Motion for Remand and vacated the Board's March 2011 decision denying an initial disability rating in excess of 40 percent for a psychiatric disability, and remanded the issue to the Board for action in compliance with the September 2011 Joint Motion for Remand. In an April 2012 decision, the Board granted a 60 percent rating for the Veteran's mood disorder with personality changes. The Veteran appealed the Board's April 2012 decision (to the extent that the Board noted that the evidence warranted a discussion of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), but ultimately determined that a claim for TDIU had not been raised) to the Court. In an October 2012 Order, the Court granted the parties' Joint Motion to vacate and remand that portion of the Board's decision that determined that a claim for TDIU had not been raised, for additional development and readjudication consistent with the directives contained therein. The Board's decision with regard to the increased rating claim for the service-connected mood disorder with personality changes was not disturbed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND With respect to the issue of entitlement to TDIU, the Court has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009). In the Joint Motion for Remand, the parties noted that Board erred in not adequately addressing the relevant evidence as to the Veteran's employability with regard to whether it raised the issue of entitlement to TDIU. Here, the evidence shows that the Veteran was last employed as a police officer in 2005. At an April 2006 psychiatric examination, the Veteran reported that left his job secondary to anger outburst and poor impulse control. Moreover, a June 2009 VA psychiatric examiner noted that the Veteran had retired in 2005 due to depression and anger issues. Such evidence raises an inferred claim for TDIU. The RO has not specifically adjudicated the TDIU claim. The Veteran would be prejudiced if the Board were to decide this claim without prior adjudication by the RO. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, the claim for entitlement to TDIU must be remanded to the RO for adjudication prior to the rendering of a decision by the Board on this claim. Accordingly, the case is REMANDED for the following action: 1. The RO must consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected mood disorder disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In doing so, send a letter to the Veteran and his representative that provides the Veteran with notice consistent with the VCAA, including informing him of the evidentiary requirements for establishing entitlement to a TDIU and his and VA's respective duties in obtaining evidence. Include with the letter a copy of VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and instruct the Veteran to complete the form and return it to the RO. 2. After accomplishing all requested action, as well as any additional action deemed warranted by the VCAA (to include arranging for the Veteran to undergo examination, if appropriate), the RO should adjudicate the claim for a TDIU due to mood disorder with personality changes pursuant to 38 C.F.R. § 4.16(b), in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).