Citation Nr: 21002066 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-56 694 DATE: January 12, 2021 ORDER For the period on or after February 10, 2020, entitlement to a rating in excess of 30 percent for major depressive disorder is dismissed. For the period on or after February 10, 2020, entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is dismissed. REMANDED For the period prior to February 10, 2020, entitlement to a rating in excess of 30 percent for major depressive disorder is remanded. For the period prior to February 10, 2020, entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an August 2020 rating decision, the agency of original jurisdiction (AOJ) granted a 100 percent evaluation for major depressive disorder, effective February 10, 2020. 2. The Veteran is in receipt of a 100 percent evaluation for major depressive disorder on or after February 10, 2020. He has no other service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to an evaluation in excess of 30 percent on or after February 10, 2020 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The appeal as to the issue of entitlement to TDIU since February 10, 2020 has been rendered moot based on the grant of a 100 percent evaluation for major depressive disorder. 38 U.S.C. §§ 1114(s), 1155; 38 C.F.R. §§ 3.340, 3.341, 3.350(i), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1978 to July 1982. This case comes before the Board on appeal from July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2020, the Board remanded the claims for additional development. Law and Analysis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 1. Entitlement to an increased rating in excess of 30 percent for major depressive disorder on or after February 10, 2020 is dismissed. In this case, in an August 2020 rating decision, the agency of original jurisdiction (AOJ) granted a 100 percent evaluation for major depressive disorder, effective February 10, 2020. This represents a full grant of the benefit sought on or after February 10, 2020. Thus, there is no case or controversy. Accordingly, this portion of the Veteran’s appeal is dismissed. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on or after February 10, 2020 is dismissed. The issue of entitlement to TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. As discussed above, the Veteran has a total (100 percent) evaluation for his major depressive disorder on or after February 10, 2020. He currently has no other service-connected disabilities. Because a TDIU evaluation is a lesser benefit than the 100 percent schedular evaluation assigned for major depressive disorder, and because the Veteran does not have another service-connected disability, the TDIU claim is moot. See Buie v. Shinseki, 24 Vet. App. 242 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the appeal as to entitlement to TDIU on or after February 10, 2020 is dismissed. REASONS FOR REMAND The Board finds additional development is needed prior to adjudication of the issue of an increased rating for major depressive disorder prior to February 10, 2020. Specifically, VA treatment records indicate that non-VA mental health treatment documents were scanned into the Veteran’s VA medical records in March 2014, April 2014, May 2014, and June 2014. However, these records are not visible. Thus, on remand, the AOJ should attempt to obtain these records. See Bell v. Derwinski, 2 Vet. App. 611 (2015) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The claim for TDIU prior to February 10, 2020 is intertwined with the issue of an increased rating for major depressive disorder prior to February 10, 2020. Therefore, the issue of TDIU prior to February 10, 2020 is remanded pending adjudication of the inextricably intertwined issue. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matter is REMANDED for the following actions: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his major depressive disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. The AOJ should also secure any outstanding VA treatment records. A specific request should be made for the March 2014, April 2014, May 2014, and June 2014 mental health treatment documents that are referenced in the available VA treatment records. If the results are stored separately, such as in the Vista Imaging System, they should be uploaded to the electronic claims file. 3. After completing these actions, the AOJ should conduct any other development as may be indicated. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Williams, Associate 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.