Citation Nr: 18140877 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 07-06 171 DATE: REMANDED A rating in excess of 50 percent for persistent depressive disorder (previously characterized as anxiety disorder and posttraumatic stress disorder (PTSD)) (hereinafter “psychiatric disability”) prior to May 21, 2015, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1958 to July 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2008 rating decision, the RO recharacterized the service-connected psychiatric disability as anxiety disorder, finding that it was a progression of the prior diagnosis of PTSD, as indicated in the March 2008 statement of the case, and continued the initial 30 percent disability rating. In April 2009, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript is in the record. In July 2017 correspondence, the Veteran waived his right to appear at another hearing before the Board and requested that the case be considered based on the evidence of record. In August 2009, this matter and an inferred claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities were remanded for additional development (by a VLJ other than the undersigned). In a December 2016 rating decision, the RO recharacterized the service-connected disability as persistent depressive disorder, and granted a higher 70 percent rating, effective May 21, 2015, and granted TDIU, effective May 21, 2015. In August 2017, the Board granted a 50 percent rating for the Veteran’s psychiatric disability prior to May 21, 2015, and remanded his claim of entitlement to a rating in excess of 70 percent from May 21, 2015, and entitlement to TDIU prior to May 21, 2015. The Veteran then appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). A March 2018 Court Order granted the Joint Motion for Remand (JMR) regarding the August 2017 Board denial of a rating in excess of 50 percent prior to May 21, 2015, and remanded the claim to the Board for compliance with directives specified by the JMR. The December 2017 JMR specifically noted that the Court was without jurisdiction for claims that were remanded by the Board (to include entitlement to a rating in excess of 70 percent from May 21, 2015, and entitlement to TDIU from that date) and were therefore not subject to the JMR. Those claims are still before the RO for additional development and are not before the Board at this time. The December 2017 JMR also noted that the parties did not contest the Board’s decision to the extent that it granted an increase from a 30 percent rating to a 50 percent rating prior to May 21, 2015. The case is now before the Board for compliance with the directives specified by the JMR and has been assigned to the undersigned VLJ. Entitlement to a rating in excess of 50 percent for persistent depressive disorder prior to May 21, 2015, is remanded. In its August 2017 decision, the Board granted the Veteran’s claim for an increased rating for his psychiatric disability, previously rated as 30 percent disabling and now rated as 50 percent disabling, prior to May 21, 2015. The Board also remanded the claim of entitlement to TDIU prior to May 21, 2015, and his claim for a rating in excess of 70 percent from May 21, 2015, for a psychiatric disability. The March 2018 JMR determined that the Veteran’s claim of entitlement to a higher rating for his service-connected psychiatric disability prior to May 21, 2015, was inextricably intertwined with the remanded TDIU claim, specifically noting that, because “any development of the TDIU claim would provide evidence as to the severity of [the Veteran’s] psychiatric disability for the time period prior to May 21, 2015, any decision regarding the psychiatric disability claim was premature.” As the remanded claims from the August 2017 Board decision have not yet returned to the Board for review and adjudication, the Board has no choice but to remand this matter on appeal as inextricably intertwined with the Veteran’s claim of entitlement to TDIU prior to May 21, 2015. [CONTINUED ON NEXT PAGE] The matter is REMANDED for the following action: 1. Adjudicate whether the Veteran is entitled to TDIU prior to May 21, 2015, in accordance with the directives contained in the August 2017 Board remand. 2. Thereafter, conduct any development deemed necessary with respect to the Veteran’s claim of entitlement to a rating in excess of 50 percent for a psychiatric disability prior to May 21, 2015. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel