Citation Nr: 21007145 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-59 708 DATE: February 8, 2021 REMANDED Entitlement to a rating in excess of 50 percent prior to August 25, 2020, and in excess of 70 percent since August 25, 2020, for a service-connected unspecified depressive disorder and unspecified anxiety disorder (psychiatric disability) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to August 25, 2020 is remanded. REASONS FOR REMAND The Veteran had active military service from January 1977 to November 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in February 2021. This case is being remanded under VA’s One Touch initiative; a transcript of the hearing will be associated with the file at a later date. During the pendency of the appeal, the disability rating for the Veteran’s service-connected psychiatric disorder, unspecified depressive disorder and unspecified anxiety disorder, was increased from 50 percent to 70 percent, effective August 25, 2020. Because the Agency of Original Jurisdiction (AOJ) did not assign the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Similarly, although a TDIU was granted from August 25, 2020, and because the claim of entitlement to a TDIU is part and parcel of the underlying claim for an increase in the instant appeal, the claim for a TDIU prior to August 25, 2020, is still in appellate status. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In July 2014, the Veteran filed a VA Form 9, substantive appeal, perfecting his appeal regarding the issue of entitlement to service connection for a low back injury. At present, that issue has not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notifications have not been sent in regard to the VA Form 9 filed in July 2014, the Board declines to take any further action on that issue at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). THIS MATTER IS REFERRED TO THE RO FOR APPROPRIATE ACTION. See VA Form 9, received July 29, 2014.   1. Entitlement to a rating in excess of 50 percent prior to August 25, 2020, and in excess of 70 percent since August 25, 2020, for service-connected psychiatric disability At the February 2021 hearing, the Veteran testified that his service-connected psychiatric disability had worsened since the November 2020 VA examination was performed. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected psychiatric disability. 2. Entitlement to a TDIU prior to August 25, 2020 The record indicates that there may be outstanding and relevant records. In March 2012, a VA social worker noted that the Veteran discussed applying for SSDI benefits and that he had already begun completing the application; that his application was given the medical team to complete; and that later that month, he advised his VA social worker by telephone that he was on his way to drop off his SSDI application. In April 2012, the Veteran’s income was noted to be from SSDI. The Veteran filed his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in January 2015 and noted that the date he last worked full-time and the date his disability affected his full-time employment was August 2014. In a letter received in March 2015, the Veteran noted that he has been unemployed since August 2014 and that he received disability benefits every week and that his wife was on SSDI (Social Security Supplemental Security Income). It is unclear whether the SSDI benefits referred to in the Veteran’s VA treatment records are Social Security Administration disability benefits or distinct benefits on the state level related to his disability. In either case, records underlying the award are potentially relevant to the Veteran’s claims. Accordingly, any such records should be obtained prior Board adjudication.   The matters are REMANDED for the following action: 1. Please take appropriate action concerning the referral in the Introduction as to the VA Form 9, received July 29, 2014, on the issue of service connection for a low back disorder. 2. Obtain any records from the Social Security Administration, to include any award of SSDI, disability benefits and any underlying records used in reaching the determination. All efforts to obtain these records should be fully documented, and a negative response must be provided if records are not available. 3. Obtain the Veteran’s VA treatment records for the period since January 15, 2021. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational   impairment due to his service-connected psychiatric disorder alone. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.