Citation Nr: 21029197 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-24 867 DATE: May 12, 2021 REMANDED Entitlement to an initial disability rating in excess of 70 percent for unspecified depressive disorder is remanded. Entitlement to an effective date prior to March 1, 2017, for establishment of service connection for unspecified depressive disorder is remanded. Entitlement to revision of a January 2013 rating decision denying service connection for post-traumatic stress disorder (PTSD) based on clear and unmistakable error (CUE) is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1976 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board will review this matter's complex procedural history. In June 2019, the Board remanded claims of entitlement to an initial disability rating higher than 50 percent for unspecified depressive disorder, entitlement to TDIU, and an effective date prior to March 1, 2017, for unspecified depressive disorder, including on the basis of clear and unmistakable error in a January 2013 rating decision. Notably, the CUE claim was initially raised in 2018 correspondence from the Veteran and his representative, but the RO had not yet adjudicated the CUE claim in the first instance in a rating decision. The Board directed the RO to undertake various additional development, including obtaining records from the Social Security Administration, VA treatment records, and new VA examinations and opinions. Subsequently, the RO issued an April 2020 rating decision increasing the Veteran's disability rating for unspecified depressive disorder to 70 percent from September 11, 2019. The same day, the RO issued an April 2020 supplemental statement of the case (SSOC), which denied entitlement to an initial disability rating higher than 50 percent for unspecified depressive disorder, TDIU, and an effective date prior to March 1, 2017, for the award of service connection for unspecified depressive disorder. With respect to the earlier effective date issue, the RO's denial of an earlier effective date focused on whether there was CUE in a January 2013 rating decision. Significantly, however, this was the first time the RO had adjudicated whether revision of the January 2013 rating decision was warranted based on CUE. Following the issuance of the April 2020 rating decision increasing the Veteran's disability evaluation for unspecified depressive disorder from September 11, 2019, the Veteran's representative filed VA Form 20-0996, Request for Higher-Level Review, under the modernized appeal system. In response, the RO issued an October 2020 rating decision in the modernized appeal system that granted a 70 percent rating from March 1, 2017, based on clear and unmistakable error in the May 2017 rating decision granting service connection. The Veteran's representative attempted to file another VA Form 20-0996 in response to the October 2020 rating decision, but was informed in December 2020 correspondence that he had filed his appeal request on the incorrect form. The modernized appeal system, which has different procedural rules than the legacy appeal system, is the system put in place following the passage of the Appeals Modernization Act (AMA). Generally, the AMA applies to initial decisions issued on or after February 19, 2019. Here, however, it was improper for the Veteran's representative to request higher-level review (HLR) of the April 2020 rating decision under the modernized appeal system. This is because, although it was issued after February 19, 2019, the April 2020 rating decision that granted a higher rating for a disability subject to a pending legacy appeal is not an initial decision for AMA purposes. To that end, once a claim for an increased rating has been placed in appellate status, the period addressed by subsequent rating decisions granting an increased rating remains part of the pending legacy appeal and cannot be separated by filing a new NOD. See, e.g., AB v. Brown, 6 Vet. App. 35, 38 (1993); Hamilton v. Brown, 4 Vet. App. 528, 541 (1993); Hudson v. Principi, 3 Vet. App. 467, 468 (1992). Stated differently, the HLR request submitted by the Veteran's representative with respect to the April 2020 rating decision granting a 70 percent rating for unspecified depressive disorder from September 11, 2019, was improper, and the RO should not have accepted it as a valid request for review under the modernized appeal system. As such, the Board will continue to address the issue of an increased rating for unspecified depressive disorder in the legacy appeals system, not the modernized system. However, with respect to the favorable findings made in the October 2020 decision (i.e., entitlement to a 70 percent disability rating from March 1, 2017), the Board is still generally bound by these favorable findings. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Having set forth the procedural history, the Board now turns to the claims on appeal. At the outset, the Board reiterates that the RO has not yet determined in a rating decision whether revision of the January 2013 rating decision denying service connection for PTSD is warranted due to CUE. Instead, the RO issued an April 2020 SSOC discussing whether revision of the January 2013 rating decision was warranted. This is improper, however, as the RO should have instead issued a rating decision addressing the issue in the first instance. To that end, an SSOC, by its own terms, cannot be used to decide any new issues. See 38 C.F.R. § 19.31(a). This is in violation of long-standing VA policy and relevant regulations governing what issues can be addressed in an SSOC. See id. The Board also notes that the Court has held that the Board can waive the timeliness of an appeal when actions taken by the RO lead an appellant to believe that an issue remains on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, however, the Board cannot adjudicate the claim of entitlement to revision of the January 2013 rating decision on its merits. This is because the RO's failure to adjudicate this claim initially in a rating decision, as opposed to promulgating an SSOC, precludes his ability at present to disagree with the rating decision by filing a notice of disagreement. This procedural defect (i.e., erroneously issuing an SSOC rather than a rating decision) also does not permit the Board to waive any timeliness issues with respect to an appeal. See id. As such, it was an error for the RO to return this matter to the Board at this juncture, and remand is necessary to correct this procedural defect. Additionally, the issues of an increased rating for unspecified depressive disorder, an earlier effective date for unspecified depressive disorder, and TDIU are all inextricably intertwined with the issue of CUE, which is being remanded. This is because, with respect to all the issues relating to increased ratings and earlier effective dates stemming from unspecified depressive disorder, a finding of CUE in the January 2013 rating decision would effectively push back the effective date of entitlement to service connection for unspecified depressive disorder. This would affect the other three claims and potentially render them moot. As such, to avoid meaningless appellate review and a waste of judicial resources, adjudication of the increased rating, earlier effective date, and TDIU claims must be deferred pending resolution of the CUE claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the matters are REMANDED for the following action: 1. Adjudicate the Veteran's claim for entitlement to revision of the January 2013 rating decision denying service connection for PTSD by promulgating a rating decision. A copy of any rating decision on this claim should be sent to the Veteran and his representative and must be included in the claims file. An appropriate length of time should be allowed for response from the Veteran and/or his representative. This claim should not be returned to the Board unless the Veteran subsequently perfects a timely appeal. 2. Following resolution of the CUE claim, or otherwise the expiration of the applicable time period within which to appeal the rating decision with respect to the CUE claim, readjudicate the Veteran's claims for an increased initial disability evaluation for unspecified depressive disorder, an effective date prior to March 1, 2017, for unspecified depressive disorder, and TDIU. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.