Citation Nr: 1314609 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-27 874 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected major depressive disorder. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to September 1989. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO denied entitlement to TDIU but granted service connection for major depressive disorder and assigned an initial 30 percent rating, effective October 17, 2007. In September 2008, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating and the denial of TDIU. A statement of the case (SOC) was issued in July 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for major depressive disorder, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In April 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that the Veteran has raised the issue of service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to service-connected prostate cancer. It does not appear that the Veteran's secondary service connection claim has yet been addressed by the RO. As such, this matter is not properly before the Board, and is thus referred to the RO for appropriate action. REMAND Review of the record reveals the Veteran has been receiving disability benefits from the Social Security Administration (SSA) since April 2009. See June 2010 SSA letter. In a June 2010 statement, the Veteran indicated that he is receiving SSA disability benefits due to several disabilities, including depression and posttraumatic stress disorder (PTSD); the actual SSA decision and the reports and records considered by SSA in making its decision are not of record. Although SSA records are not controlling in VA claims, here, such records may be relevant to the Veteran's increased rating and TDIU claims. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Accordingly, the Board concludes that a remand is needed in order for VA to obtain the Veteran's SSA records. In addition, as noted in the Introduction, above, Veteran perfected his appeal as to the increased rating and TDIU claims on appeal by filing a timely substantive appeal, via VA Form 9, in July 2009. The Veteran did not request a local or Board hearing in conjunction with his appeal at that time. However, in March 2010, the Veteran submitted a written statement wherein he requested a hearing before a local Decision Review Officer before a decision is rendered by the Board. There is no indication that the Veteran withdrew his request for a hearing or that the requested hearing was ever scheduled. Hence, there remains an outstanding local hearing request. The appellant has a right to provide hearing testimony on appeal. See 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700(a) (2012). Local hearings are scheduled by the agency of original jurisdiction. See 38 C.F.R. §§ 20.700(e), 20.704(a) (2012). Accordingly, on remand, the RO should afford the Veteran the requested hearing. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claims should include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Request from the SSA all records related to the Veteran's claim for disability benefits, including all medical records and copies of all decisions or adjudications. All negative responses should be fully documented in the claims file. 2. After all records are obtained and associated with the claims file, schedule the Veteran for a local hearing before a Decision Review Officer in accordance with his request. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the matters on appeal in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claims), and legal authority. 4. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).