Citation Nr: 21007127 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-49 936 DATE: February 8, 2021 REMANDED Prior to June 27, 2013, entitlement to a compensable disability rating for a traumatic brain injury (TBI) is remanded. From June 27, 2013, entitlement to a disability rating in excess of 70 percent for major depressive disorder with a TBI is remanded. Entitlement to an effective date prior to January 27, 2013 for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1954 to July 1956. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and July 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the issue of entitlement to an increased disability rating for a TBI was previously before the Board in November 2019, when it was remanded for further development. The November 2019 Board decision also included the issue of entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD). See November 2019 BVA Decision. However, during the pendency of the appeal, an August 2020 rating decision granted the Veteran’s claim for entitlement to service connection for major depressive disorder secondary to a TBI. Accordingly, the Veteran’s claim for entitlement to an acquired psychiatric disorder is no longer in appellate status as there is no case or controversy presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In addition, the August 2020 rating decision granted the Veteran’s claim for entitlement to a TDIU, effective October 22, 2014, and changed the diagnostic code for the Veteran’s service-connected major depressive disorder with a TBI and increased the Veteran’s disability rating from 10 to 50 percent, effective October 22, 2014. See August 2020 Rating Decision – Narrative. Thereafter, a January 2021 rating decision granted an increased 70 percent disability rating for major depressive disorder with residuals of TBI, effective June 27, 2013, and entitlement to an earlier effective date of June 27, 2013 for the grant of entitlement to a TDIU. See January 2021 Rating Decision – Narrative. As this rating is not the maximum allowable, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board notes that the Veteran’s claim for entitlement to a disability rating in excess of 30 percent for posttraumatic headaches, prior to December 11, 2017, was recently returned to the Board from the U.S. Court of Appeals for Veterans Claims (Court). See October 2020 CAVC Decision. However, the Board notes that this claim is still in development and will be addressed in a separate decision, after the time period afforded to the Veteran to submit additional evidence and argument has elapsed and all due process requirements have been completed. The Board also notes that the Veteran is not represented. In February 2015, he submitted a statement asking for his representative at the time, Puerto Rico Public Advocate for Veterans Affairs, to be revoked. If the Veteran wishes to have representation, he should submit a valid Form 21-22 or 21-22a, as applicable. 1. Prior to June 27, 2013, entitlement to an initial compensable disability rating for a TBI is remanded. 2. From June 27, 2013, entitlement to a disability rating in excess of 70 percent for major depressive disorder with a TBI is remanded. As noted above, the Board remanded the issues on appeal in November 2019. Specifically, the Board directed the RO to obtain all outstanding VA and private treatment records. The RO was further asked to schedule the Veteran for a VA examination to determine whether the Veteran suffered from an acquired psychiatric disorder that was secondary to any of his service-connected disabilities. Thereafter, the Board instructed the RO to readjudicate the issues remaining on appeal, and if the benefits sought remained denied, to provide a supplemental statement of the case (SSOC) to the Veteran. See November 2019 BVA Decision. The RO completed the requested development, and in an August 2020 supplemental statement of the case (SSOC), the RO denied the Veteran’s claims for entitlement to a compensable disability rating for a TBI prior to October 22, 2014 and a rating in excess of 50 percent for major depressive disorder with a TBI, thereafter. See August 2020 SSOC. However, the RO subsequently readjudicated the Veteran’s claims in a January 2021 rating decision. Specifically, the RO granted an increased 70 percent disability rating for major depressive disorder with residuals of a TBI, effective June 27, 2013, and entitlement to an earlier effective date of June 27, 2013 for the grant of entitlement to a TDIU. See January 2021 Rating Decision – Narrative. The Board notes that the RO did not issue an SSOC following the January 2021 rating decision. In this regard, VA regulations require issuance of a SSOC after a Board remand if the benefits sought are not granted in full, unless the only purpose of the remand is to assemble records previously considered by the agency of original jurisdiction and properly discussed in a prior SOC or SSOC or the Board specifies that a SSOC is not required. 38 C.F.R. §§ 19.31(c), 19.38. Thus, a remand is required for the RO to issue a SSOC. 3. Entitlement to an effective date prior to January 27, 2013 for the grant of entitlement to a TDIU is remanded. The Board finds that the issue of entitlement to an effective date prior to June 27, 2013 for the grant of entitlement to a TDIU is part and parcel of the Veteran’s claims for entitlement to a compensable rating for a TBI prior to June 27, 2013, and for entitlement to a disability rating in excess of 70 percent for major depressive disorder with residuals of a TBI, thereafter. See Rice v Shinseki, 22 Vet. App. 447 (2009). However, as the issues on appeal are being remanded, consideration of the Veteran’s claim of entitlement to an effective date prior to June 27, 2013 for the grant of entitlement to a TDIU, at this juncture, would be premature as it is inextricably intertwined with the remanded claims on appeal. Accordingly, a remand is required for contemporaneous adjudication. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the claims file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Readjudicate the claims on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review consistent with the regulations cited above.   S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Attorney-Advisor 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.