Citation Nr: 20002226 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 16-53 661 DATE: January 10, 2020 REMANDED Entitlement to an initial rating in excess of 70 percent, prior to November 23, 2015, for a mood disorder with mixed features, is remanded. Entitlement to an effective date prior to April 20, 1995, for the grant of a total disability rating based on individual unemployability (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2019, the Veteran testified before the undersigned Veterans Law Judge at the Cleveland RO; a transcript has been associated with the claims file. During the course of the appeal, the RO issued an August 2016 rating decision increasing the Veteran’s mood disorder rating to 100 percent, effective November 23, 2015. As this increase did not represent a full grant of the benefits sought for the entire appeal period, the Veteran’s appeal has not been abrogated and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Higher Initial Rating for Mood Disorder The record indicates that there are missing psychiatric treatment records relevant to the Veteran’s appeal, particularly relating to the earlier part of the appeal period, which stems back to October 1976. In this regard, a June 1987 Statement of Parole Agreement mandates that the Veteran was to participate in outpatient psychological counseling while on parole, and a September 1998 letter from Dr. B.G.A. indicates that the Veteran received psychiatric treatment from him, as well as four other physicians- Dr. R.B., Dr. W.S.W., Dr. L.W. and Dr. J.L. On remand, appropriate action should be taken to obtain said records. Earlier Effective Date for TDIU The record reflects that the Veteran has been incarcerated at times during the appeal period. In this regard, of record is notification from an Ohio correctional institution that the Veteran was incarcerated for a felony from May 19, 1977, to June 1, 1987. Additionally, the Veteran testified that he was incarcerated from December 1992 to July 1993; however, such has not been verified. Accordingly, on remand, the Agency of Original Jurisdiction (AOJ) should confirm the Veteran’s dates of incarceration. In this regard, the Board notes that VA shall not assign to any veteran a TDIU rating during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony. 38 U.S.C. § 5313 (c). The primary legislative purpose for this limitation is “to prevent duplication of governmental expenditures benefiting incarcerated persons in receipt of veterans’ compensations.” VAOPGCPREC 5-2006 (August 11, 2006) (noting that interpretation of Section 5313 to result in double governmental expenditures would “thwart Congress’ clear purpose for the reduction in benefit payments”). The matters are REMANDED for the following action: 1. Take appropriate action to obtain authorization from the Veteran to request his private treatment records, to include treatment prior to 1998 from Dr. B.G.A., Dr. R.B., Dr. W.S.W., Dr. L.W. and Dr. J.L and any other additional psychiatric treatment received in conjunction with his parole period. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Verify the Veteran’s dates of incarceration during the appeal period, to include as reported from December 1992 to July 1993, and determine whether any period of incarceration was for the conviction of a felony. 3. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.Z., Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.