Citation Nr: 1611585	
Decision Date: 03/22/16    Archive Date: 03/29/16

DOCKET NO.  05-39 037	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased initial rating for adjustment disorder with anxiety and depression, rated 10 percent beginning March 24, 2004 and 30 percent beginning September 19, 2011.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 


REPRESENTATION

Veteran represented by:	Michael A. Steinberg, Attorney


ATTORNEY FOR THE BOARD

J. Rothstein, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1967 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The TDIU claim was remanded by the Board in April 2009, April 2012 and May 2013.  The Veteran's VA claims file has now been returned to the Board for further appellate proceedings.

The Board notes that the TDIU issue has previously been characterized as involving a period prior to May 13, 2011, the effective date for a 100 percent rating for Parkinson's disease.  In this regard, the Board emphasizes that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU.  Bradley v. Peake, 22 Vet. App. 280 (2008).  Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation.  Thus, the issue has been broadened as reflected on the title page.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In May 2014, the Veteran's attorney submitted a timely notice of disagreement in response to a January 2014 rating decision granting service connection for adjustment disorder with anxiety and depression and assigning initial disability ratings of 10 percent effective March 24, 2004 and 30 percent from September 19, 2011.  To date, no statement of the case (SOC) has been provided.  Therefore, the Board is required to remand this matter for issuance of the necessary SOC.  See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

The Board must also therefore defer readjudication of the appeal for a TDIU because it is inextricably intertwined with the issue of entitlement to a higher initial disability ratings for adjustment disorder with anxiety and depression.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED to the AOJ for the following action:

1.  Issue a SOC addressing entitlement to an increased initial rating for adjustment disorder with anxiety and depression, rated 10 percent beginning March 24, 2004 and 30 percent beginning September 19, 2011.  The Veteran should be given an opportunity to perfect an appeal.  If a substantive appeal is timely filed, the perfected issue should be certified to the Board.

2.  Upon completion of the above, and any other development deemed necessary, readjudicate the Veteran's entitlement to a TDIU.  If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental SOC and afforded an appropriate period of time to respond.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court.  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) (2015).