Citation Nr: 1756877 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-03 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent from March 23, 2006, to August 27, 2017, and since November 1, 2017, for depression. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Christopher L. Loiacono, Accredited Agent ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to June 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously remanded by the Board in August 2016. In an October 2017 rating decision, the RO assigned a temporary 100 percent rating for hospitalization over 21 days for service-connected depression from August 28, 2017. A 50 percent evaluation was assigned beginning November 1, 2017. As reflected above, the 100 percent rating is the maximum available for that period and is not on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Further, the Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning the compensation amount for his temporary 100 percent evaluation for hospitalization over 21 days for service-connected depression. Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of addressing the appeal. Action by the Board at this time may serve to delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and the issue presently before the RO will be the subject of a later Board decision, if ultimately necessary. REMAND The Board finds additional development is warranted before the claims may be adjudicated. Specifically, remand is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claims. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The December 2010 rating decision on appeal implemented the Board's grant of service connection for depression and assigned an initial 30 percent evaluation. The Veteran disagreed with the assigned rating and the evaluation was increased to 50 percent for the entire appeal period in a December 2011 rating decision. As noted in the August 2016 remand, the Veteran has also claimed to be unemployable due to depression. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Pursuant to the August 2016 remand directives, the Veteran's vocational rehabilitation file and VA treatment records dated through January 2017 were associated with his claims file and a January 2017 examination was obtained to determine the current severity and manifestations of depression, to include its impact on the Veteran's employability. In November 2017, the Veteran submitted an authorization for the release of records from the St. Cloud and Minneapolis VA Medical Centers for treatment from August 2017 to the present. The Board notes that some October 2017 medical records from the St. Cloud VA Medical Center were associated with the claims file in support of the claim for the above-mentioned temporary 100 percent evaluation that indicate the Veteran received in-patient mental health and substance use treatment. As the record does not include the Veteran's full treatment records since January 2017, to include records specifically requested by the Veteran, and these records appear to be relevant to his appeal, updated VA treatment records must be associated with the claims file. 38 U.S.C. § 5103A(c). Accordingly, the case is REMANDED for the following actions: 1. Obtain updated VA treatment records dating since January 2017. 2. After completing any records development, the AOJ should consider whether the above action triggered the need for additional development. For example, the AOJ should consider whether additional medical opinions must be obtained in light of any additional VA medical records. Appropriate development should be undertaken. 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and an 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).