Citation Nr: 1753684 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 08-37 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to ratings in excess of 30 percent prior to October 19, 2012; 50 percent from October 19, 2012, to May 11, 2015; and 70 percent from May 12, 2015, for service-connected undifferentiated somatoform disorder and generalized anxiety disorder (hereinafter referred to as a psychiatric disability). Entitlement to an effective date prior to July 2, 2015, for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to July 2004. This appeal is before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in pertinent part, continued a 30 percent disability rating for a psychiatric disability. In July 2012, the Board remanded the issue for further evidentiary development. Subsequently, in a March 2013 rating decision, the RO granted a disability rating of 50 percent, effective October 19, 2012. In January 2015, the Board again remanded the issue. In February 2016, the Board remanded the issue of higher ratings for a psychiatric disability, as well as of a TDIU. In June 2016, the RO increased the disability rating for a psychiatric disability to 70 percent, effective May 12, 2015; and granted a TDIU, effective July 2, 2015, the day after the last day the Veteran was employed. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has identified the issue as stated 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 Unfortunately, a remand is again required in this matter for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Regarding the psychiatric disability claim, the February 2016 Board remand instructed the AOJ to 1) request that the Veteran provide sufficient information and, if necessary, authorization to enable VA to obtain any additional evidence pertinent to the claim on appeal that is not currently of record; 2) obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting mental health treatment from April 2008 to the present, to specifically include but not limited to inpatient mental health records from October 2015; 3) provide a VA examination to determine the current nature and severity of the Veteran's service-connected psychiatric disability; and 4) readjudicate the claim. The RO obtained and associated with the claims file updated VA treatment records, provided April 2016 and September 2016 VA examinations, and readjudicated the claims in an August 2017 SSOC. The Board notes that the March 2016 letter to the Veteran requested that the Veteran provide relevant treatment records or authorization to allow VA to obtain those records. However, the RO was instructed to specifically request that the Veteran provide authorization to obtain treatment records from Dr. J.N., Dr. B.B., Rapides Regional Physician Group, and Vermillion Behavior Health. The March 2016 letter did not specifically request such authorization. Regardless, the Veteran submitted authorization for these treatment records, and the Veteran was notified that such treatment records were requested. The claims file includes treatment records from Dr. B.B., Rapides Regional Physician Group, and Vermillion Behavior Health. However, the Board's remand instructed the RO to inform the Veteran if any of the requested private records were unavailable and to afford him an opportunity to submit any copies in his possession. Although the treatment records from Dr. J.N. appear to have been requested but never obtained, the Veteran was not informed or provided an opportunity to provide them himself. Although the Board regrets this further delay, this additional development is necessary to ensure that the Veteran is afforded all due process under the law. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran furnish appropriate authorization to obtain treatment records from Dr. J.N. from September 2004 to December 2008. Once received, attempt to obtain the treatment records. All records obtained must be associated with the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file in accordance with 38 C.F.R. § 3.159(c)(1) (2017). **If the records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. Allow the Veteran an appropriate amount of time to respond.** 2. Then after determining whether any additional development is necessary, readjudicate the appeal. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished an SSOC and provided an appropriate opportunity to respond before the claims file is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs