Citation Nr: 18141503 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-19 211 DATE: October 10, 2018 ORDER Entitlement to an effective date prior to July 17, 2015, for the award of a 70 percent initial rating for major depressive disorder (MDD). REMANDED Entitlement to an initial rating in excess of 50 percent prior to July 17, 2015 and in excess of 70 percent therefrom for MDD is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s claim for an effective date prior to July 17, 2015, for the award of a 70 percent initial rating for MDD, is encompassed by his pending claim for an initial rating greater than 50 percent prior to July 17, 2015, and an initial rating greater than 70 percent from that date, for his service-connected MDD; therefore, there is no remaining case or controversy in the matter of the effective date for the award of an increased initial rating for MDD. CONCLUSION OF LAW The claim for entitlement to an effective date prior to July 17, 2015, for the award of a 70 percent initial rating for PTSD, is dismissed as moot. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. § 19.4, 20.101, 20.202, 20.2014. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to March 1984. 1. Entitlement to an effective date prior to July 17, 2015, for the award of a 70 percent initial rating for major depressive disorder (MDD). The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. In this case, the Veteran was awarded service connection for MDD in a September 2015 rating decision, and assigned a 50 percent disability rating, effective September 10, 2012. The Veteran filed a November 2015 notice of disagreement (NOD) with that decision. In February 2016, the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC) addressing the matter of the initial rating to be assigned for the Veteran’s MDD. Concurrent with the SOC, the AOJ issued a rating decision that increased the initial rating for the Veteran’s MDD to 70 percent, effective July 17, 2015. The Veteran was notified of that decision in April 2016. That same month, he filed an NOD disagreeing with the effective date assigned for the increased 70 percent initial rating for his service-connected MDD. A claim for an effective date prior to July 17, 2015, for the award of a 70 percent initial rating for MDD has been separately appealed to the Board. See September 2016 SOC; October 2016 VA Form 9, substantive appeal; and October 2016 VA Form 8, Certification of Appeal. However, the issue of entitlement to an increased initial rating for PTSD has also been separately appealed to the Board. As the initial ratings assigned for the Veteran’s service-connected MDD are less than the maximum under the applicable criteria (and he has not expressed satisfaction with the increased initial rating), the increased initial rating issue has been re-characterized to reflect that “staged” ratings are assigned, and that both remain on appeal. See, e.g., September 2016 Supplemental SOC. Therefore, even though the Veteran has separately appealed and perfected a claim for entitlement to an effective date prior to July 17, 2015, for the award of a 70 percent initial rating for MDD, such a claim is already encompassed by his appeal seeking initial ratings in excess of those currently assigned. Notably, in this instance, it is more favorable for the Veteran to pursue an increased initial rating claim versus an earlier effective date claim; therefore, he is not prejudiced by the re-characterization of his claim as one for higher initial “staged” ratings. Based on the foregoing, the Board finds that there is no remaining case or controversy pertaining to the Veteran’s claim for entitlement to an effective date prior to July 17, 2015, for the award of a 70 percent initial rating for MDD. Accordingly, the appeal will be dismissed as moot. REASONS FOR REMAND 1. Entitlement to increased initial ratings for MDD is remanded. The Veteran was last afforded a VA examination to evaluate his MDD in November 2013. Since then, additional evidence has been added to the record indicating that the symptomatology associated with his MDD has worsened. See January 2014 Private Psychological Examination report and October 2016 VA Treatment records. Accordingly, the Board finds that VA’s duty to assist necessitates that this claim be remanded to schedule a new VA examination. 2. Entitlement to a TDIU is remanded. In a November 2017 Statement in Support of Claim, the Veteran asserted he was unable to work as a result of his PTSD. Accordingly, the Board finds that a claim for a TDIU has been raised by the record and will be considered part and parcel of the increased initial rating claim currently on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. The matter of a TDIU is thus inextricably intertwined with the Veteran’s claim being remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required. The matters are REMANDED for the following actions: 1. Provide the Veteran and his attorney with notice of the criteria for a TDIU. Specifically, request that the Veteran complete and submit VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Obtain all outstanding VA treatment records (and in particular from 2016 to present). 3. After the above development is completed, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his service-connected MDD. The examiner must review pertinent documents in the Veteran’s claims file in conjunction with the examination. All indicated studies should be completed. All findings must be fully reported. The examiner must identify all current manifestations of the Veteran’s MDD and discuss symptoms and the current degree of occupational and social functioning associated with this disorder. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel