Citation Nr: 21003498 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-25 038 DATE: January 21, 2021 REMANDED An initial disability rating in excess of 30 percent for major depressive disorder prior to June 24, 2013 is remanded. A disability rating in excess of 70 percent for major depressive disorder since June 24, 2013 is remanded. An initial compensable disability rating for gastroesophageal reflux disease (GERD) prior to July 1, 2019 is remanded. A disability rating in excess of 10 percent for GERD since July 1, 2019 is remanded. A total disability rating based on individual unemployability prior to June 24, 2013 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1971 to September 1971 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2010 and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). As a matter of clarification, during the course of the appeal, in a May 2018 rating decision the RO granted a TDIU, effective September 23, 2013. In a June 2019 rating decision, the effective date of the TDIU award was amended, and a new date of June 24, 2013 was established. However, as the TDIU was not awarded for the full appeal period, it has been recharacterized as shown above. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that where a Rice TDIU claim has been raised, and the grant of TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period for which TDIU was not granted or considered, remains in appellate status.) In this vein, the Board recognizes that within one year of the June 2019 rating decision, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) VA Form 10182, seeking an earlier effective date for the award of a TDIU under the modernized review system, also known as the Appeals Modernization Act (AMA). While this may result in the Board’s review of the Veteran’s entitlement to a TDIU prior to June 24, 2013 both as an earlier effective date claim under the AMA, and under Harper in the legacy appeals system, the appeals are valid under both systems. 1. An initial disability rating in excess of 30 percent for major depressive disorder prior to June 24, 2013 is remanded. 2. A disability rating in excess of 70 percent for major depressive disorder since June 24, 2013 is remanded. 3. An initial compensable disability rating for GERD prior to July 1, 2019 is remanded. 4. A disability rating in excess of 10 percent for GERD since July 1, 2019 is remanded. 5. A total disability rating based on individual unemployability prior to June 24, 2013 is remanded. Under 38 C.F.R. § 19.31, the VA Regional Office will provide a supplemental statement of the case (SSOC) to the appellant when there are any material changes in or additions to the information included in the SOC or any prior SSOC, to include receipt of additional pertinent evidence. In December 2019, the Board sent the Veteran a letter asking him whether he waived his right to have the case remanded to the VA Regional Office (RO) for the initial review of pertinent evidence associated with the claims file by VA since the RO’s last readjudication of the claims. In January 2020, the Veteran’s attorney responded and stated that she did not know whether she wished to waive initial RO review of the evidence until she was able to review it, and requested an updated copy of the claims file. While updated copies of the claims file were subsequently provided in April 2020, August 2020, and October 2020, a waiver of RO review was never received. In the December 2019 letter, the Veteran and his attorney were advised that the Board would remand the appeal if a response was not received within 45 days. As such, the Board must proceed with the remand. Additionally, the Board last remanded the claims for higher ratings for major depressive disorder in May 2016, and the claims for higher ratings for GERD in December 2018. While there has been substantial compliance with the December 2018 remand directives, in the May 2016 remand, the Board directed the RO to provide an updated VA examination for the Veteran’s psychiatric disability. In December 2017, the Veteran obtained and submitted on his own behalf a Disability Benefits Questionnaire (DBQ) addressing his psychiatric disability, completed by a primary care provider. While the RO appears to have found that the receipt of this DBQ obviated the need to provide a VA examination, the Board cannot find that there has been substantial compliance with the May 2016 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The DBQ examiner stated that she did not have pertinent records available to review, and was unable to provide any relevant social, martial, family, occupational, educational, mental health, or behavioral, history. She further explained her role as a treating physician, and stated that in contrast, a compensation and pension examiner would be better trained and qualified, and would have enough time, to adequately assess the severity of the Veteran’s psychiatric disability. A VA examination must be afforded in compliance with the May 2016 Board remand. The matters are REMANDED for the following action: 1. Afford the Veteran with a VA examination to ascertain the current severity of his major depressive disorder in accordance with the applicable worksheet for rating the disability. 2. Thereafter, readjudicate the appeal, considering all evidence added to the claims file since the January 2019 and December 2019 Supplemental Statements of the Case. If the benefits sought are not granted, provide the Veteran and his representative with an updated Supplemental Statement of the Case. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.