Citation Nr: 1418174 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 11-17 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for a panic disorder with generalized anxiety disorder and depressive disorder, not otherwise specified, prior to April 26, 2010, and in excess of 70 percent from April 26, 2010. 2. Entitlement to an effective date earlier than April 26, 2010, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2006 to March 2009. These matters come before the Board of Veterans' Appeals (BVA or Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Subsequent to the June 2009 rating decision, the Veteran submitted additional VA treatment records. The RO readjudicated the issue and increased the Veteran's disability rating to 70 percent in a September 2010 rating decision. The additional evidence was received prior to the expiration of the appellate period for the June 2009 rating decision. Any interim submissions before finality must be considered by the VA as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. § 3.156(b) (2013). Thus, the June 2009 rating decision is the proper rating action on appeal. In the March 2011 statement of the case (SOC), the RO addressed the issue of entitlement to an earlier effective date for the assignment of the 70 percent rating for a panic disorder with generalized anxiety disorder and depressive disorder, not otherwise specified. However, because the Veteran's appeal originated from the June 2009 rating decision that granted service connection, he is actually appealing the original assignment of a disability evaluation following an award of service connection. Thus, the claim actually involves the propriety of the initial disability rating assigned during the entire appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's rating was increased during the course of the appeal; however, the claim for a higher rating remains before the Board because the staged ratings assigned for the periods remain less than the maximum available benefit awardable for each period. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue on appeal does not include the question of entitlement to an earlier effective date for the rating assigned subsequent to the initial rating action on appeal. The claim is as noted on the title page. The Veteran appeared at a March 2012 hearing before the undersigned. A transcript is of record. The Veteran has also submitted a notice of disagreement (NOD) to the effective date for TDIU assigned in a July 2011 rating decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In an August 2011 statement, the Veteran indicated that he is receiving disability benefits from the Social Security Administration (SSA) "for [his] anxiety condition." As these records may contain pertinent information as to the Veteran's appeal, they must be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In the August 2011 statement, the Veteran specifically said he wished to file a notice of disagreement with the July 2011 rating decision for the effective date of the grant of TDIU. He also expressed disagreement with the fact that TDIU was not determined to be permanent. In a March 2012 rating decision, the RO granted permanent and total status and informed the Veteran that the decision represented a complete grant of benefits sought on appeal. The effective date of the grant of TDIU remains April 26, 2010. The Veteran's August 2011 NOD addressed the permanent and total status and the effective date. The March 2012 rating decision addressed only the permanent and total status. That decision does not represent a complete grant of benefits sought; the question of an earlier effective date for TDIU has not been addressed. The Board will remand the claim for issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and obtain any administrative decisions and all medical records used in adjudicating the Veteran's award of disability benefits. Once obtained, all documents must be associated with the claims folder. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims folder. 2. Thereafter, readjudicate the Veteran's claim for an increased rating for his anxiety disorder with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an appropriate period of time within which to respond. The case should be returned to the Board for appellate review. 3. Provide the Veteran with a statement of the case as to the issue of entitlement to an effective date prior April 26, 2010, for TDIU. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. Only if a timely substantive appeal is filed, this claim should be returned to the Board for further appellate consideration, as appropriate and subject to the current appellate procedures. The Appellant has the right to submit additional evidence and argument on the matter 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. 2013). _________________________________________________ M. E. LARKIN 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) (2013).