Citation Nr: A21020227
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 200526-88028
DATE: December 17, 2021

REMANDED

Entitlement to a rating in excess of 30 percent prior to March 25, 2019, and a rating in excess of 50 percent on and after March 25, 2019, for major depressive disorder and a psychiatric disorder, other than major depressive disorder, is remanded.  

Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) prior March 25, 2019, is remanded.  

Basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 prior to March 25, 2019, is remanded.  

REASONS FOR REMAND

The Veteran had active service from September 1970 to May 1972.  

In April 2020, the Board of Veterans' Appeals (Board) granted service connection for a psychiatric disorder, other than major depressive disorder.  

In April 2020, the Agency of Original Jurisdiction rating decision implemented the Board's decision and recharacterized the service connected psychiatric disability as major depressive disorder and a psychiatric disorder, other than major depressive disorder rated as 30 percent prior to March 25, 2019, and in excess of 50 percent on and after March 25, 2019.  In a June 2020 Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, the Veteran appealed the April 2020 rating determination and elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the April 2020 Agency of Original Jurisdiction decision on appeal.  38 C.F.R. § 20.301.

The Board observes that a September 2018 rating decision established service connection for the psychiatric disability and assigned an initial 30 percent rating for that disability.  The Veteran submitted a notice of disagreement with the assigned rating.  The instant appeal encompasses the issue of the appropriate rating for the psychiatric disability and the April 2020 rating decision implementing the April 2020 Board decision and recharacterizing the service connected psychiatric disability subsumed the prior rating decision. 

The issues of entitlement to a TDIU prior March 25, 2019, and basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 prior to March 25, 2019, are ancillary benefits to the issue of an increased rating for the service connected psychiatric disability.  The issues are on appeal and will be addressed below.  

1. Entitlement to a rating in excess of 30 percent prior to March 25, 2019, and a rating in excess of 50 percent on and after March 25, 2019, for major depressive disorder and a psychiatric disorder, other than major depressive disorder, is remanded.  

The Veteran contends that an increased rating is warranted for the service connected psychiatric disability prior to and following March 25, 2019.  

The Department of Veterans Affairs (VA) duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The Veteran was last afforded a VA psychiatric examination in March 2019.  He has not been afforded a VA psychiatric evaluation which addresses all of the service connected psychiatric disabilities.  That is a pre decisional error.  

Entitlement to both a TDIU prior to March 25, 2019, and basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 prior to March 25, 2019, is remanded.  

The issues of entitlement to both a TDIU prior to March 25, 2019, and basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 prior to March 25, 2019, are inextricably intertwined with the issue being remanded and must also be remanded.

The matters are REMANDED for the following action:

Schedule the Veteran for a VA psychiatric examination.  The examiner must review the record and should note that review in the report.  The examiner should opine as to the levels of social and occupational impairment caused by the service-connected psychiatric disabilities and should describe the symptoms, their frequency, and their severity, that result in those levels of social and occupational impairment.  

 

 

J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Douglas

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.