Citation Nr: 21062296 Decision Date: 10/07/21 Archive Date: 10/06/21 DOCKET NO. 09-17 471 DATE: October 7, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for unspecified insomnia disorder previously rated as posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1965 to September 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned a 30 percent disability rating, effective April 9, 2002. In an October 2011 decision, the Board denied an initial rating in excess of 30 percent for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) and the decision was affirmed in a March 2013 memorandum decision. The Veteran appealed the CAVC decision and the United States Court of Appeals for the Federal Circuit dismissed the appeal as untimely but permitted the Veteran to file a motion with CAVC to recall its decision and remand the case to the Board. In a February 2014 Order, CAVC granted the motion to vacate the October 2011 Board decision and remand the issue of entitlement to an initial rating in excess of 30 percent for PTSD. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2017. A copy of the transcript has been reviewed and associated with the claims file. In a February 2020 decision, the Board denied a rating in excess of 30 percent for the Veteran's PTSD. The Veteran appealed the denial to CAVC and the parties agreed to a Joint Motion for Partial Remand (JMR), which vacated and remanded the issue of a rating in excess of 30 percent for PTSD. CAVC granted the JMR in a November 2020 order. In an August 2021 rating decision, the RO changed the disability to unspecified insomnia disorder previously rated as PTSD and continued the 30 percent rating. Lastly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), CAVC held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, the Veteran submitted an August 2021 medical opinion by L.C., Ph.D., who concluded that the Veteran's PTSD symptoms impair his ability to secure and follow gainful employment. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU."). 1. Entitlement to an initial rating in excess of 30 percent for unspecified insomnia disorder previously rated as posttraumatic stress disorder (PTSD) is remanded. The appellate process set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed by the Agency of Original Jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or in a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31(b). In the present claim, an SSOC was issued in June 2019. However, additional VA treatment records were associated with the claims file from June 2019 to August 2021. Furthermore, VA examinations were performed in August and September 2021 to assess the severity of the Veteran's service-connected psychiatric disability. However, the AOJ did not prepare an SSOC considering this newly VA generated evidence. Accordingly, a remand is required for the issuance of an appropriate SSOC that considers the additional VA treatment records, VA examinations, and any other relevant evidence received since the June 2019 SSOC. See 38 C.F.R. §§ 19.31, 19.37, 20.1305(c). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). The Veteran submitted an August 2021 medical opinion by L.C., Ph.D., who concluded that the Veteran's PTSD symptoms impair his ability to secure and follow gainful employment. Currently, the Veteran's overall, combined rating is 40 percent from April 9, 2002, to December 3, 2012, and 50 percent from December 4, 2012. Thus, he does not meet the threshold requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim must be referred to the Director, Compensation Service. The matters are REMANDED for the following actions: 1. Refer the claim for a TDIU, to include on an extraschedular basis, to the Director, Compensation Service, and notify the Veteran and his representative of such action. 2. Readjudicate the issues on appeal, to include consideration of the additional VA examination reports and treatment records since the June 2019 SSOC. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide the Veteran an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.