Citation Nr: 18160248
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-38 862
DATE:	December 26, 2018
REMANDED
Entitlement to a disability rating higher than 70 percent for severe depression is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from November 2001 to December 2005.
This appeal comes to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  By that rating action, the RO granted the Veteran 70 percent service connection for her severe depression.  The Veteran appealed the August 2013 rating action and the RO’s determination therein to the Board.  
1. Entitlement to a disability rating higher than 70 percent for severe depression is remanded
As a preliminary matter, the Board notes that in September 2016, the Veteran timely perfected an appeal (via VA Form 9) to the August 2016 statement of the case.  Thus, this issue was properly in appellate status.
The Board has identified additional non-duplicative, relevant evidence that is associated with the Veteran’s claims file, but has not been reviewed by the RO in the context of the appeal.  Specifically, the Veteran submitted additional medical records dated March 9, 2017 to October 31, 2017, from the Loch Raven VA Clinic.  Given the issue of entitlement to an increased rating for severe depression was in appellate status and the case had not yet been certified to the Board, due process required the issuance of a supplemental statement of the case (SSOC).  See 38 C.F.R. § 20.904 (providing that a denial of due process of law will be conceded when, in pertinent part, a required SSOC was not provided).  Accordingly, the Board finds the claim must be remanded to the Agency of Original Jurisdiction (AOJ) for issuance of an SSOC.   
2. Entitlement to a TDIU is remanded
The claim of entitlement to a TDIU is inextricably intertwined with the issue of an increased disability rating for severe depression.  The Veteran maintains that her service-connected severe depression makes her unable to secure substantially gainful employment.  Further, a potential grant of a higher disability rating would increase the overall combined disability percentage, meeting the schedular requirements for a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183(1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue).  Consideration of entitlement to a TDIU must, therefore, be deferred until the intertwined issue is either resolved or prepared for appellate consideration.  See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together).
 The matters are REMANDED for the following action:
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Issue the Veteran a supplemental statement of the case, which includes consideration of the evidence added to the record since the August 2016 statement of the case.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Trowers, Associate Counsel