Citation Nr: 1744331	
Decision Date: 10/04/17    Archive Date: 10/13/17

DOCKET NO.  12-02 695A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1. Entitlement to a rating in excess of 70 percent for major depressive disorder (MDD).

2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 16, 2015.


REPRESENTATION

Appellant represented by:	Ralph Bratch, Attorney-at-Law


ATTORNEY FOR THE BOARD

M. Thomas, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from June 1990 to September 1990 and October 1991 to October 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied entitlement to a rating in excess of 50 percent for MDD.  Jurisdiction has since been transferred to the VA RO in Indianapolis, Indiana.

The Veteran requested a Board hearing in his April 2012 VA Form 9.  In March 2014, the Veteran's representative withdrew his request for a hearing.

A TDIU claim is also part of an increased rating issue when such claim is raised by the Veteran or reasonably raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In May 2014, the Board determined that the issue of unemployability had been raised by the record, and remanded the derivative TDIU issue and the issue of an increased rating for MDD for RO development.  There has been substantial compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders).  The United States Court of Appeals for Veterans Claims (Court) has indicated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand).





In November 2016, the RO increased the rating from 50 to 70 percent for MDD, effective December 10, 2009, and awarded a TDIU, effective July 16, 2015.  Because less than the maximum available benefit for a schedular rating for MDD was awarded and because the TDIU was not awarded for the entirety of the claim period, the claims remain before the Board in appellate status.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993).

The issue of entitlement to a TDIU for the period prior to July 16, 2015, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

In August 2017, prior to promulgation of a decision in the appeal, the Board received a written statement from the Veteran's representative indicating that he did not wish to continue to pursue the claim of entitlement to an increased rating for MDD.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran seeking an increased rating for MDD have been met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Claim Withdrawn Per the Veteran's Request

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

The Veteran perfected an appeal from an April 2010 rating decision that denied an increased rating for MDD.  However, in an August 2017 written statement, the Veteran's attorney indicated that the Veteran did not wish to continue to pursue his appeal as to this issue.  This statement clearly expresses the Veteran's intent to withdraw his appeal as to the issue of entitlement to an increased rating for MDD.  Therefore, there remain no allegations of error of fact or law for appellate consideration as to this claim.  The Board does not have jurisdiction to review the claim of entitlement to an increased rating for MDD, and it is therefore dismissed.  38 U.S.C.A. § 7105(d)(5).

ORDER

The appeal seeking a higher rating for MDD is dismissed.


REMAND

The above-noted dismissal was based on written withdrawal of the increased rating claim for MDD.  Nonetheless, the derivative TDIU claim, which was raised by the record as noted by the Board in May 2014, is still in appellate status for the period prior to July 16, 2015, as it has not been expressly withdrawn by the Veteran or his attorney.  Accordingly, the Board will proceed with development of the TDIU claim for the applicable rating period.  

Notably, the record reflects that VA-generated evidence has been added to the claims file since the remaining claims were last adjudicated in a November 2016 SSOC.  In this regard, the Veteran's VA Vocational Rehabilitation and Employment (VR&E) folder was added to the electronic claims file in July 2017, after the SSOC, and a new SSOC was not issued with consideration of the new VA examination report and VA treatment records.  In addition, the Veteran submitted income and tax statements in June 2017.  

Under 38 U.S.C. § 7105(e) if the claimant or the claimant's representative submits new evidence with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration.  In this case, the relevant substantive appeals were received in October 2008; accordingly, 38 U.S.C. § 7105(e) is not applicable.

Under 38 C.F.R. § 20.1304(c), any pertinent evidence submitted following certification of an appeal to the Board must be referred to the AOJ for review, "unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral."  38 C.F.R. § 20.1304(c). 

This procedural right of initial AOJ review of the evidence received in June and July 2017 has not been waived by the Veteran, and the new pertinent evidence does not guarantee that any of the benefits sought on appeal may be fully allowed on appeal without such referral.  Id.  Therefore, the Veteran's appeal for entitlement to a TDIU will be remanded for appropriate action so that the above-noted evidence is appropriately addressed with a SSOC.

Accordingly, the case is REMANDED for the following action:

Review all evidence added to the claims file since the November 2016 SSOC relevant to the TDIU claim remaining on appeal for the rating period prior to July 16, 2015.  Then, after undertaking any necessary development, readjudicate the TDIU claim for the rating period prior to July 16, 2015.  If the benefit sought remains denied, the Veteran and his attorney should be furnished a SSOC and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate consideration.

The Veteran 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 2014).




____________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs