Citation Nr: 18153439 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 14-41 445A DATE: November 27, 2018 REMANDED Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty from July 1972 to July 1975, and from October 1975 to October 1984. In October 2001, he applied for compensation for a number of disabilities, including a personality disorder. In May 2002, the RO denied service connection for this disability, while granting service connection for other disabilities. In May 2003, the Veteran filed a notice of disagreement (NOD) with the May 2002 rating decision. Following receipt of additional evidence, the RO issued a June 2004 rating decision granting service connection for a dysthymic disorder evaluated as 30 percent disabling, effective August 2001. In September 2011, the Veteran applied for disability compensation for posttraumatic stress disorder (PTSD). In January 2012, he applied for TDIU and indicated that he had been awarded social security disability (SSD) benefits by the Social Security Administration (SSA). The RO requested his SSD record but obtained only a one-page document showing that his SSD award was based, primarily, on unspecified disorders of the back and, secondarily, on affective disorders. In April 2012, the Veteran filed a de facto motion to revise and asserted a clear and unmistakable error (CUE) as to his personality disorder claim. In July 2012, following receipt of additional evidence, the RO issued a rating decision: (1) superimposing the Veteran’s major depressive disorder (MDD) upon his dysthymic disorder, while continuing its evaluation as 30 percent disabling, effective August 2001; and (2) finding no CUE as to his personality disorder claim. The July 2012 rating decision did not address the PTSD or TDIU claims raised in the September 2011 and January 2012 applications. However, in January 2013, the Veteran filed an NOD challenging the July 2012 rating decision as if it were a denial of his PTSD and TDIU claims. In September 2014, the RO issued a statement of the case (SOC) that operated as a de facto rating decision, given that it denied the Veteran’s PTSD and TDIU claims. In October 2014, the Veteran filed a timely application for an extension of time to appeal and asserted extraordinary circumstances. In December 2014, he filed a substantive appeal as to his PTSD and TDIU claims without requesting a Board hearing. In June 2016, following receipt of additional evidence, the RO issued a rating decision granting service connection for the Veteran’s PTSD assigning it a 70 percent disability rating, effective May 2016, upon evaluating it jointly with his persistent depressive disorder (PDD) superimposed upon his MDD (that had been superimposed upon his dysthymic disorder). The June 2016 rating decision rendered the Veteran’s service connection for PTSD claim moot but did not address his TDIU claim; rather, it stated that the TDIU claim would be addressed separately. In July 2016, the RO issued a de facto continuation of the June 2016 rating decision, styling it as a supplemental SOC and denying the TDIU claim in light of, inter alia, the Veteran’s SSD being primarily based on his unspecified back disorders, which the RO deemed not service connected without clarifying the basis for this finding. In August 2016, the Veteran filed an NOD seeking an increase in evaluation of his PTSD to 100 percent disabling and challenging the denial of TDIU upon asserting that the SSA granted him SSD based on a record identical to the record in this matter. In November 2016, the Veteran filed a notice of intent to file a substantive appeal. In December 2016, the appeal was certified. In April 2018, following receipt of additional evidence, the RO issued an SOC that: (1) increased the evaluation of the Veteran’s PDD to 50 percent disabling for the period from September 2011 to May 2016; and (2) found that an evaluation of the Veteran’s PTSD above 70 percent disabling effective May 2016 was unwarranted. In June 2018, the Veteran filed a substantive appeal: (1) seeking an evaluation of his PDD above 50 percent disabling for the period from September 2011 to May 2016; (2) seeking an evaluation of his PTSD above 70 percent disabling effective May 2016; (3) requesting a Board hearing as to his PTSD and PDD claims; and (4) stating that he would provide new and material evidence as to these claims at the hearing. Although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran’s TDIU claims. A total disability rating for compensation may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or hers service-connected disabilities, provided that this disability is rated at 60 percent or higher if there is only one such disability or, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or higher, with sufficient additional disabilities to bring the combined rating to at least 70 percent. See 38 C.F.R. § 4.16(a). The central inquiry is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). An omission of the veteran’s potentially relevant records, particularly those in the possession of VA or generated during the veteran’s SSA proceeding, necessitates a remand for additional development. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). In this case, because the Veteran’s TDIU claim emanated from his PTSD and PDD claims, and his TDIU claim was denied based on, inter alia, the Veteran’s SSD record, the Board cannot adjudicate his TDIU claim at this juncture, given that: (1) he requested and is entitled to a Board hearing as to his PTSD and PDD claims; (2) he expects to offer new and material evidence as to these claims during the hearing; (3) the PTSD and PDD claims are inextricably intertwined with the TDIU claim; and (4) the Veteran’s SSD record obtained by the RO is limited to a single page that does not clarify the nature of unspecified back disabilities relied upon by the SSA. Thus, while the Board would ordinarily hold a veteran’s TDIU claim in abeyance until all of his inextricably intertwined claims are resolved following a Board hearing, the Board finds that a remand is more appropriate in this case. Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s entire SSD record; 2. Hold this matter in abeyance until (a) the Veteran is provided with a Board hearing as to his increased rating claim for PTSD and PDD; 3. Readjudicate the Veteran’s entitlement to TDIU on the basis of all of the evidence of record, to include (a) his entire SSD record, and (b) the determinations to be made by the Board with regard to his PTSD and PDD claims after the Veteran has his hearing. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel