Citation Nr: 21061417 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 09-43 314 DATE: October 4, 2021 ISSUES 1. Entitlement to a disability rating in excess of 30 percent for degenerative arthritis of the left acromioclavicular joint and rotator cuff (left shoulder disability). 2. Entitlement to a disability rating in excess of 50 percent for major depressive disorder (MDD) from January 9, 2009. 3. Entitlement to a total disability based on individual unemployability (TDIU). REMANDED Entitlement to a disability rating in excess of 30 percent for a left shoulder disability is remanded. Entitlement to a disability rating in excess of 50 percent for MDD from January 9, 2009, is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to June 1992, October 1994 to March 1995, and November 2001 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a December 2013 hearing held before the undersigned at the RO; a transcript of the hearing is of record. In an April 2014 decision, the Board granted an increased 50 percent evaluation for MDD prior to January 9, 2009. The Veteran appealed the Board's denial of a yet higher evaluation for the period prior to January 9, 2009, to the Court of Appeals for Veterans Claims (CAVC or the Court). In December 2014 the Court, based on a Joint Motion for Partial Remand, vacated that portion of the Board's decision limiting the award to 50 percent and remanded the matter for further consideration. In the April 2014 decision, in pertinent part, the Board also restored a 30 percent evaluation for the left shoulder disability, effective October 1, 2007. Neither this restoration, nor the grant of increased evaluation to 50 percent for MDD prior to January 9, 2009, were disturbed by the CAVC. Additionally, the issues of the evaluation of MDD from January 9, 2009; the evaluation of the left shoulder disability; and entitlement to a finding of TDIU were remanded by the Board to the Agency of Original Jurisdiction (AOJ) in April 2014. The CAVC had no jurisdiction over them, and took no action with regard to them. Per the Board's April 2014 decision, in a June 2015 rating decision, the evaluation of the left shoulder disability was increased to 30 percent effective October 1, 2007. Subsequently, when this case was most recently before the Board in January 2015, the Board granted an increased 70 percent rating, but no higher, for MDD prior to January 9, 2009. Further, the Board noted in the January 2015 decision that the matters regarding the evaluation of MDD from January 9, 2009; the evaluation of the left shoulder disability; and entitlement to a finding of TDIU had not yet been returned to the Board following the development ordered in April 2014, and hence the issues were not ripe for further appellate consideration. The case has since been returned to the Board for further appellate action. In April 2014 the Board found that the Veteran should be afforded a VA examination to address the severity of her MDD. This directive was not accomplished on remand; therefore, the issue is remanded for compliance of the directive to afford the Veteran a VA examination to address the severity of her MDD. In regards to the claim for the left shoulder disability, a VA-contracted examination was obtained in July 2021. The VA-contracted examination was not submitted by the Veteran. Given the above, the evidence is not subject to automatic waiver and a supplemental statement of the case (SSOC) is required. See 38 C.F.R. §§ 19.31, 19.37 (2017). See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial RO review of evidence submitted to the RO or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the RO initially review such evidence). With regard to TDIU, entitlement is dependent upon the ratings assigned and impairments due to the service-connected disabilities. As the evaluations for MDD and the left shoulder remain open, a final determination on entitlement to TDIU would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected MDD. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes, to include a discussion of the functional and occupational impact of the MDD. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the AOJ must furnish the Veteran and her representative with an appropriate SSOC which addresses all pertinent evidence associated with the claims file, to include the aforenoted July 2021 VA-contracted examination, and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.