Citation Nr: 18142420 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-34 251A DATE: October 15, 2018 REMANDED Entitlement to an effective date prior to December 14, 2010, for the grant of a 70 percent evaluation for service-connected anxiety disorder, not otherwise specified (NOS), is remanded. Entitlement to an effective date earlier than December 14, 2010, for the grant of a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1973 to January 1975. He also has more than one month of prior, inactive service of an unspecified nature. These matters come before the Board of Veterans' Appeals (the Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In the August 2012 rating decision, the AOJ increased the evaluation assigned for the Veteran’s service-connected anxiety disorder, NOS, from 50 percent to 70 percent and granted his claim for TDIU; both awards were assigned effective from June 22, 2012. The Veteran expressed disagreement with the assigned effective dates for these awards, and the present appeal ensued. In March 2014, the Veteran presented oral testimony in support of an issue on appeal to a Decision Review Officer (DRO) sitting at the RO. A transcript of the March 2014 DRO hearing is associated with the file. In a September 2014 DRO decision, the AOJ partially granted the Veteran’s claims for earlier effective dates; the 70 percent evaluation for service-connected anxiety disorder, NOS, and TDIU were made effective from December 14, 2010. However, as neither effective date represented a full grant of the benefits sought, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). During the pendency of the appeal, the Veteran requested to present further oral testimony in support of his appeal at a Board hearing conducted by a Veterans Law Judge (VLJ) at VA’s Central Office. Such a hearing was scheduled to take place in October 2015; however, the Veteran asked for this hearing to be postponed. Consequently, another Board hearing conforming with the Veteran’s prior request was scheduled to be completed in August 2016, but the Veteran failed to report for this hearing, and he has not shown good cause for this. As such, the Veteran’s prior request for a Board hearing is deemed withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704(d) (2017). After the submission of additional evidence, these two issues were readjudicated in a March 2015 Supplemental Statement of the Case. (SSOC). Referred issues In an October 2014 statement, the Veteran asserted that he wished to file a claim for an earlier effective date for the grant of service connection for chronic bronchitis. Although this occurred before VA changed its regulations to require that all claims be filed on standardized forms prescribed by the Secretary, 79 Fed. Reg. 57660 (Sept. 25, 2014), effective from March 24, 2015, the AOJ has not taken steps to develop or adjudicate this claim in the first instance. As such, the Board must REFER it to the AOJ for appropriate action. 1. Entitlement to an effective date prior to December 14, 2010, for the grant of a 70 percent evaluation for service-connected anxiety disorder, not otherwise specified (NOS), is remanded. Following the September 2014 DRO decision that denied this claim, the Veteran expressed disagreement with this determination in October 2014, and while the AOJ readjudicated it in the March 2015 SSOC, he has not been provided a Statement of the Case (SOC), as necessary under 38 C.F.R. § 19.9. As such, a remand is necessary. 2. Entitlement to an effective date earlier than December 14, 2010, for the grant of a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As the Veteran’s appeal to establish TDIU prior to December 14, 2010, is dependent on the Veteran’s combined evaluation – which is, in turn dependent on the evaluation assigned for his service-connected anxiety disorder, NOS – the issues are inextricably intertwined. As such, this issue must also be remanded. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran and his representative a Statement of the Case addressing the issue of entitlement to an effective date prior to December 14, 2010, for the grant of a 70 percent evaluation for service-connected anxiety disorder, NOS. The Statement of the Case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. 2. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the Statement of the Case unless he perfects his appeal. 3. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the issue of entitlement to an effective date earlier than December 14, 2010, for the grant of TDIU, to specifically include collecting and verifying information concerning his complete educational and occupational history prior to that date, and scheduling him for additional VA examination(s) necessary for adjudicating the issue, to include referring the issue to the Director of Compensation Service for consideration of assignment of an extraschedular evaluation under 38 C.F.R. § 4.16(b) if his combined evaluation remains below 60 percent. Thereafter, the AOJ must readjudicate the issue of entitlement to an effective date earlier than December 14, 2010, for the grant of TDIU. If the benefit is not granted to the fullest extent, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel