Citation Nr: 21004963 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-24 280 DATE: January 28, 2021 REMANDED Entitlement to a disability rating for the service-connected posttraumatic stress disorder (PTSD) in excess of 30 percent prior to April 23, 2019, and in excess of 70 percent on or after April 23, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 23, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1968. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to a disability rating in excess of 30 percent for the service-connected PTSD. In March 2013, VA received the Veteran’s Notice of Disagreement (NOD). In June 2014, the RO issued a Statement of the Case (SOC). In July 2014, VA received the Veteran’s VA Form 9 appeal to the Board. The record shows that during the pendency of the Veteran’s appeal of his increased rating claim for PTSD, in July 2014, VA received the Veteran’s VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A February 2015 rating decision later denied entitlement to a TDIU. Although the Veteran did not submit a notice of disagreement for this decision, the Veteran's claim for a TDIU is part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a June 2018 decision, the Board remanded the case for further development and adjudicative action. In that decision, the Board also assumed jurisdiction over the TDIU claim. In a December 2019 rating decision, the RO granted a disability rating of 70 percent for the service-connected PTSD, effective April 23, 2019. As the assigned evaluations are less than the maximum available rating, the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). To the extent that the representative has asserted that the Veteran is entitled to an earlier effective date for the award of the 70 percent rating for PTSD, the Board finds that this effective date concern is already contemplated by the Veteran’s increased rating claim for the PTSD disability as the appeal includes consideration of whether an increased rating is warranted at any earlier point in the appeal period, including during the year prior to the date of receipt of the Veteran's claim. See 38 C.F.R. § 3.400(o)(2). Furthermore, in an August 2020 rating decision, the RO granted entitlement to a TDIU, also effective April 23, 2019. However, as the grant of a TDIU did not encompass the entire disability rating period on appeal, the period prior to April 23, 2019 remains in appellate status as part and parcel of the increased rating claim on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In August 2014, the Veteran testified at Board hearing before a Veterans Law Judge (VLJ). A transcript of that testimony is of record. In December 2020, the Board notified the Veteran that the VLJ before whom he had testified during the August 2014 Board hearing was no available to participate in his appeal and advised the Veteran of his right to request another hearing. The letter added that if he did not respond within 30 days from the date of the letter, the Board would assume he did not want another hearing and proceed accordingly. No response was received within 30 days of the letter. 1. Entitlement to a disability rating for the service-connected PTSD in excess of 30 percent prior to April 23, 2019, and in excess of 70 percent on or after April 23, 2019, is remanded. 2. Entitlement to a TDIU prior to April 23, 2019 is remanded. In the June 2018 Board remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain a VA examination to determine the current severity of the Veteran's PTSD as well as a medical opinion that addressed the severity of his psychiatric symptoms since April 2011, including the impact of the Veteran's PTSD on his occupational and social functioning during that period. The record shows that in response to the Board’s June 2018 remand, the AOJ conducted additional development that included obtaining a VA examination specific to the Veteran’s PTSD and a medical opinion in April 2019. The AOJ later issued a supplemental statement of the case (SSOC) in August 2020 that readjudicated the Veteran’s increased rating claim for PTSD and his claim for a TDIU prior to April 23, 2019. However, following the August 2020 SSOC, the AOJ obtained an October 2020 VA addendum opinion to the opinion provided in April 2019. As this opinion addressed the severity of the Veteran’s PTSD symptoms during an earlier portion of appeal period in terms of occupational functioning, it is relevant to both the Veteran’s increased rating claim for PTSD and his claim for a TDIU prior to April 23, 2019. After receiving this opinion in November 2020, the AOJ transferred the case to the Board in November 2020. Under 38 C.F.R. § 19.31, the AOJ will provide an SSOC to the Veteran and their representative when the AOJ receives additional pertinent evidence after an SOC or the most recent SSOC has been issued and before the appeal is certified and the appellate record is transferred to the Board. If the pertinent evidence is received prior to transfer of the case to the Board, a request for waiver of AOJ review is not appropriate, and the case must be remanded for a new SSOC. 38 U.S.C. § 7105(e); 38 C.F.R. §§ 19.31, 19.37(a). As the relevant October 2020 VA addendum opinion was received after the August 2020 SSOC and prior to the November 2020 transfer of the case to the Board, these issues must be remanded for AOJ review and issuance of an SSOC in order to ensure that the Veteran is provided with due process. As resolution of the Veteran's increased rating claim for his PTSD disability may impact his claim for a TDIU prior to April 23, 2019, the Board finds that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of the Veteran's claim for a TDIU prior to April 23, 2019 must be deferred until the appropriate actions concerning the intertwined increased rating claim are completed and the matter is either resolved or prepared for appellate review. The Board also notes that an August 2020 Social Security Administration (SSA) Inquiry reflects that the Veteran is in receipt of SSA Title II and Title XVI status disability benefits. Although the record does not indicate that the AOJ has attempted to obtain SSA records, there has been no suggestion from the Veteran or the other evidence of record that such records would provide information relevant to his claims. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). As such, the Board will not request these records on remand. The matters are REMANDED for the following action: After reviewing the evidence of record following the August 2020 SSOC, readjudicate the claims on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.