Citation Nr: 21063564
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 20-16 406
DATE:       October 14, 2021

REMANDED

Entitlement to a rating in excess of 30 percent for the service-connected persistent depressive disorder (previously rated as a dysthymic disorder) is remanded.

REASONS FOR REMAND

The Veteran had active service from August 1995 to August 1999. In July 2021, she testified at a hearing before the undersigned Veterans Law Judge (VLJ). At the hearing, she discussed being unable to work due to her service-connected psychiatric disability. However, the issue of entitlement to a total disability rating for individual unemployability is being adjudicated separately in an AMA stream and is not before the Board of Veterans' Appeals (Board) at this time.

In this case, the Agency of Original Jurisdiction (AOJ) issued a February 2020 statement of the case (SOC) on the issue of entitlement to a rating in excess of 30 percent for the service-connected persistent depressive disorder. Prior to the appellate record being transferred to the Board in July 2020, and subsequent to the AOJ having issued the SOC, the AOJ received additional pertinent evidence in the form of a July 2020, VA mental disorders examination and private mental health treatment records and evaluation submitted by the Veteran in that month.

VA regulations require the issuance of a supplemental statement of the case (SSOC) when the AOJ receives additional pertinent evidence after the SOC has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board. 38 C.F.R. § 19.31(b). The Veteran did not waive initial AOJ adjudication of the VA examination or records received by the AOJ in July 2020 prior to the appellate record being transferred to the Board. Thus, a remand is required for the AOJ to review this evidence in the first instance and to issue an SSOC if the claim is not granted in full. Accordingly, this matter is REMANDED for the following action:

Readjudicate the Veteran's appeal for entitlement to a rating in excess of 30 percent for the service-connected persistent depressive disorder based on the entirety of the evidence. If this claim remains denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review.

No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. 

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Davidoski, 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.