Citation Nr: A21019795 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 190610-20931 DATE: December 13, 2021 REMANDED Entitlement to an initial disability rating in excess of 50 percent for unspecified episodic mood disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Preliminary Matters The Veteran served on active duty from September 1987 to September 1991, September 2005 to December 2005, and from September 2006 to January 2007. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2019 AMA rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in a May 2016 legacy (pre-AMA) rating decision, the RO, in pertinent part, denied entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran appealed this decision in June 2016. In July 2018, the Board, in pertinent part, granted the Veteran's claim of entitlement to service connection for a psychiatric disorder. The RO effectuated the Board's decision in the February 2019 AMA rating decision on appeal and assigned a 50 percent disability rating, effective April 6, 2015. In June 2019, the Veteran filed a Decision Review Request Board Appeal VA Form 10182 (Notice of Disagreement (NOD)), appealing the initial rating assigned for the Veteran's service-connected psychiatric disorder. In the NOD, the Veteran requested the Hearing lane, indicating that he wanted a Board hearing and the opportunity to submit any additional evidence in support of the appeal within 90 days after the hearing. The Veteran was scheduled for a hearing on August 2021. Prior to the scheduled hearing, the Veteran's attorney submitted a letter in August 2021, indicating that the Veteran requested to withdraw his hearing request. 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 appellant or his or her representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). The Board notes that, under the AMA, the issue of entitlement to a TDIU is within the Board's jurisdiction when evidence of unemployability is submitted prior to the RO decision, or during an applicable evidentiary window, and pertains to the period on appeal for an associated increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also 38 C.F.R. § 20.802. In this case, the Veteran's attorney submitted a brief in November 2021, which states that the Veteran "was let go from his most recent job due to his anger issues." Thus, the issue of entitlement to a TDIU has also been raised by the record during the course of this appeal. Accordingly, the issue will be addressed in this decision. REASONS FOR REMAND After thorough review of the record, the Board finds that additional evidentiary development is warranted before a final decision may be reached for the issues on appeal. 1. Entitlement to an initial disability rating in excess of 50 percent for unspecified episodic mood disorder is remanded. The record reflects that the Veteran was last afforded a VA examination for his service-connected psychiatric disorder in August 2015, over six years ago. In a November 2021 brief, submitted within 90 days following receipt of the hearing request withdrawal, the Veteran's attorney noted that the Veteran expressed suicidal ideation during his August 2015 VA examination. She further stated that the Veteran has continued to have suicidal ideation since his August 2015 VA examination. The Board notes that the Veteran's VA treatment records following the August 2015 VA examination consistently show that he denied suicidal ideation. Thus, it appears that the Veteran's suicidal ideation has recently resurfaced. The Veteran's attorney further stated that the Veteran's medication and the dosages of his medication for treatment of his psychiatric disorder have continuously changed "to try to get improvement on his symptoms, with no avail." The statements provided in the November 2021 brief suggest that the Veteran's psychiatric disorder may be more severe than reflected in both the previous examination and the currently assigned 50 percent rating during the appeal period. As such, a remand is warranted to correct a pre-decisional duty-to-assist error, and the Veteran must be afforded an examination to determine the current nature and severity of his condition. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). 2. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issue remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned appeal. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. The matters are REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so as to afford him with an opportunity to provide a description of his employment history and educational background. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected psychiatric disorder. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is requested to comment on the severity of the Veteran's service-connected psychiatric disorder throughout the rating period. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate 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.