Citation Nr: 21028261 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-54 495 DATE: May 10, 2021 REMANDED A rating in excess of 70 percent for persistent depressive disorder with anxious features is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1990 to March 1996. The Veteran appeared for a hearing before the undersigned Veterans Law Judge (VLJ) in September 2020. The hearing transcript is associated with the claims file. The Veteran's claim was initially characterized as entitlement to a rating in excess of 70 percent for dysthymic disorder with intermittent major depressive episodes. VA examinations in April 2016 and June 2019 indicated the diagnosis of dysthymic disorder was no longer used under the DSM-5 and changed the diagnosis to persistent depressive disorder, consistent with DSM-5. The claim has been recharacterized accordingly. Regarding TDIU, the United States Court of Appeals for Veterans Claims (Court) held that a request for TDIU, whether expressly raised or reasonably raised by the record, is not a separate "claim" for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if a claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. The Veteran contended she is unable to work at least partly due to her depression. See September 2020 hearing transcript. Accordingly, the issue of TDIU has been reasonably raised by the record. 1. Entitlement to a rating in excess of 70 percent for persistent depressive disorder with anxious features 2. Entitlement to a TDIU The Veteran reported receiving Social Security Administration (SSA) disability benefits. See June 2018 VA treatment record and September 2020 hearing transcript. It does not appear VA attempted to obtain these records. When VA is put on notice of the existence of relevant SSA records, VA must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Additionally, the Veteran should be provided notice concerning how to substantiate a claim for TDIU and an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The matters are REMANDED for the following action: (Continued on the next page) 1. Obtain the Veteran's disability benefits records from SSA. Document all requests for information and responses in the claims file. 2. Provide appropriate notice to the Veteran concerning how to substantiate a claim for TDIU and an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.