Citation Nr: A21016860 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 210624-167907 DATE: October 18, 2021 REMANDED From March 24, 2011, entitlement to a rating greater than 30 percent for adjustment disorder with depressed mood is remanded. Entitlement to an effective date earlier than March 24, 2011 for the grant of service connection for adjustment disorder with depressed mood is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from October 1964 to October 1968. The rating decision on appeal was issued in June 2020 but was not mailed until August 2020. It constitutes an initial decision. Therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In June 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal. In it, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The Veteran has raised the issue of a TDIU as part and parcel of his increased rating claim for an adjustment disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claims for further development, this additional evidence will be considered by the RO in the adjudication of those claims. In January 2014, the Veteran retained Woods & Woods, LLP to represent him in his claims for VA compensation. Upon being retained, Woods & Woods, LLP filed a Privacy Act (PA) request with its representation agreement. Specifically, it requested: Upon receipt of this letter please provide me with copy of the Veterans file and/or any documents in the Veteran Claims File Folder copies of service personnel and medical records VA decisional documents all VA correspondence any other related procedural record all medical records submitted by the Veteran or collected by VA any other evidence submitted in support of Veterans claim copy of the Voc Rehab file social security record and/or earnings record if applicable and complete copy of the File Jacket/Folder including any and all notes made on the C-File Folder/Jacket to me at your earliest convenience. VA fulfilled this PA request in February 2014. Woods & Woods, LLP filed a second PA request on June 24, 2014. It requested a copy of an April 2014 VA compensation examination report. VA fulfilled this request on the same day it received it. In addition to these two PA requests, Woods & Woods, LLP filed a third request that the Board must address. On June 24, 2021, the same day as it filed the VA Form 10182 initiating this appeal, a document labeled in VBMS as "VA 10-5345 Request for and Authorization to Release Medical or Health Information" ("Release") from Woods & Woods, LLP was associated with the claims file. The Veteran signed the Release on May 21, 2014, authorizing Woods & Woods, LLP to receive VA "Mental health records dated 03/01/2011 to Present AND Medical records dated 05/01/2013 to Present." Woods & Woods, LLP submitted the Release to VA on June 16, 2014 according to the time stamp on the top of the Release. For an unknown reason, VA did not associate the Release with the Veteran's claims file until June 24, 2021. Nevertheless, VA was obligated to respond to the Release prior to issuing the rating decision on appeal. This failure, which is particularly acute given the psychiatric issues on appeal, was a pre-decisional duty-to-assist error in violation of 38 U.S.C. § 5103A. Remand is therefore warranted under 38 C.F.R. § 20.802 to correct this error. The matters are REMANDED for the following action: (Continued on the next page) 1. Notify the Veteran that he may submit a new VA 10-5345 Request for and Authorization to Release Medical or Health Information because the one submitted on June 16, 2014 has expired. 2. Allow the Veteran a reasonable time to respond to Directive #1. If the Veteran submits a new VA 10-5345 Request for and Authorization to Release Medical or Health Information, take appropriate action. If the Veteran does not respond or notifies VA that he will not submit a new VA 10-5345 Request for and Authorization to Release Medical or Health Information, readjudicate the appellate issues. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.