Citation Nr: 1631650 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 02-16 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased initial rating for major depressive disorder, not otherwise specified (NOS), currently rated as 30 percent disabling prior to April 22, 2003, and as 50 percent thereafter. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Esq. ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1972 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied the Veteran's petition to reopen her previously denied claim for service connection for a psychiatric disorder. In her substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge. She was notified of her scheduled June 2006 hearing by letter in May 2006, but she did not attend the hearing. In an October 2011 letter, the Veteran confirmed that she no longer wanted a hearing. Her hearing request is deemed withdrawn. In a November 2006 decision, the Board reopened and remanded her claim for service connection for a psychiatric disorder. The Board again remanded her claim in May 2010. In February 2012, the RO granted service connection for major depressive disorder NOS and assigned a 30 percent rating prior to November 14, 2011, and a 50 percent rating thereafter. In March 2012, the Veteran filed a claim for service connection for anxiety and sleep impairment secondary to her major depressive disorder. In a June 2012 letter, the RO informed the Veteran that her anxiety claim would be treated as a claim for an increased rating for the major depressive disorder. In February 2013, the Board noted that the secondary service connection claims were filed within one year of the RO's February 2012 decision and, therefore, construed them as a notice of disagreement (NOD) with the disability ratings assigned for the major depressive disorder. Therefore, the Board remanded the major depressive disorder claim for the issuance of a statement of the case. In that decision, the Board also found that entitlement to a TDIU was raised by the record, and remanded the TDIU claim for further development. In an April 2015 rating decision, the RO increased the rating for major depressive disorder to 50 percent from April 22, 2003. In granting the increased initial rating, the RO characterized the issue as "earlier effective date for evaluation of major depressive disorder NOS, which is currently 50 percent disabling, was granted effective April 22, 2003." In March 2016, the Veteran's attorney filed a NOD with that decision. On the NOD form, the attorney indicated that he disagreed with both the effective date of award and the evaluation of disability for "earlier effective date for evaluation of major depressive disorder . . ." In a statement accompanying the NOD, the attorney stated that the Veteran was seeking a 70 percent rating for major depressive disorder with the earliest effective dates allowed by law. Given that the attorney recited the RO's description of the increased initial rating claim on the NOD form, and that the appeal period already being considered in the increased initial rating appeal is from the date of the claim for service connection, the Board finds that the Veteran is seeking an increased initial rating for major depressive disorder rather than an earlier effective date. Therefore, a request for an earlier effective date is not a separate issue for appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. Any future development or adjudication of the Veteran's case should take into account both the paper and electronic files. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board notes that the RO last considered the Veteran's claims in an April 2015 supplemental statement of the case. Since that time, additional relevant evidence has been received. This evidence includes June 2015 VA mental health and orthopedic treatment records. Such evidence has not been considered by the AOJ in conjunction with her appeal, nor has a supplemental statement of the case (SSOC) been issued. In a March 2016 letter, the Board notified the Veteran that it had received additional evidence since the last adjudication of the case by the AOJ, and requested that the Veteran elect whether she wished to waive AOJ review of that evidence. Subsequently in March 2016, the Veteran requested that the Board remand the case to the AOJ for review of the additional evidence. Therefore, the case will be remanded to the AOJ for consideration of the additional evidence and issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2015). Updated VA and private treatment records should be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any private medical providers who have treated her for her knees since May 2014. After securing any necessary releases, the AOJ should request any relevant records. Additionally, obtain VA treatment records dating from June 2015 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and her representative notified of such. 2. After completing the requested action, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 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 2014). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).