Citation Nr: 1802063 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-03 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES Entitlement to an initial rating in excess of 50 percent for bipolar disorder prior to July 6, 2015, and in excess of 70 percent thereafter, to include entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to June 20, 2016. REPRESENTATION Veteran represented by: Margaret A. Costello, Esq. ATTORNEY FOR THE BOARD A. Faverio, Associate Counsel INTRODUCTION The Veteran had active service from March 1983 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for bipolar disorder and assigned an initial 50 percent disability rating, effective November 14, 2006. In July 2010, the Veteran filed a Notice of Disagreement (NOD) with the initial rating assigned. In December 2011, the RO issued a Statement of the Case (SOC), continuing the 50 percent disability rating. The Veteran perfected his appeal via his submission of a timely VA Form 9 in February 2012, stating he should be rated at least 70 percent for PTSD. He further alleged that he was unable to work. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a higher rating encompasses a claim for TDIU if raised by the record or the Veteran). Before the appeal was certified to the Board, in an August 2015 rating decision, the RO increased the disability rating for the Veteran's bipolar disorder from 50 percent to 70 percent, effective July 6, 2015. In an October 2016 rating decision, the RO granted TDIU as a result of bipolar disorder, effective June 20, 2016. Although a higher rating and a TDIU have been assigned, the issues remain on appeal as the maximum rating has not been awarded from the date of service connection, nor has the Veteran withdrawn his appeal. See AB v. Brown, 6 Vet. App. 35 (1993); see also Rice, 22 Vet. App. at 456 (noting that "consideration of entitlement to TDIU and the effective date to be assigned is necessarily part of the consideration of the appropriate initial disability rating for the underlying condition"). Thus, the Board has recharacterized the issue on appeal as set forth above. As this matter is being remanded, no prejudice has resulted from the Board's recharacterization of the issue. Bernard v. Brown, 4 Vet. App. 384 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a September 2017 letter, the Board advised the Veteran that between August 2015 and September 2017, the Board had received additional relevant evidence from him or his representative in support of his appeal, to include medical records and VA examination reports. The Board explained that because the evidence was not previously considered by the AOJ, he had the right to have them review that evidence. In the alternative, he could waive that right by submitting a written waiver. The Board advised the Veteran that unless he provided a written waiver within 45 days of the letter, the Board would assume that he did not wish to have the Board decide his appeal at this time and the matter would be remanded to the AOJ for review. The Veteran did not respond. Accordingly, the case is REMANDED for the following action: Readjudicate the issues on appeal, considering all the evidence of record. If the benefits sought on appeal remain denied, the AOJ should issue the Veteran and his representative a Supplemental Statement of the Case and provide an appropriate opportunity to respond before the claims file is returned to the Board. 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). _________________________________________________ K. Conner 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) (2017).