Citation Nr: 21029792
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 14-37 739
DATE: May 17, 2021

REMANDED

Entitlement to a rating in excess of 50 percent for a psychiatric disability, prior to August 13, 2014, is remanded.

Entitlement to a rating in excess of 70 percent for a psychiatric disability, as of August 13, 2014, is remanded.

REASONS FOR REMAND

The Veteran had active duty service from September 1972 to September 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) continued a 50 percent rating for a psychiatric disability.

During the course of the appeal, an August 2014 rating decision assigned a higher 70 percent rating for the psychiatric disability, effective August 14, 2014.  However, as a higher rating is available both before and after August 14, 2014, and the Veteran is presumed to seek the maximum available benefit, the claim for a higher rating remains on appeal.  AB v. Brown, 6 Vet. App.35 (1993).

In a September 2020 supplemental statement of the case, the AOJ denied the claim for increased ratings and returned the matter to the Board.  In that supplemental statement of the case, the AOJ recorded in the issues that a 70 percent rating was in effect prior to August 13, 2014, for a psychiatric disability.  The narrative portion of the supplemental statement of the case found that a rating higher than 70 percent prior to August 13, 2014, was not warranted.  That mischaracterization may be a typographical or administrative error.  A 70 percent rating was never effectuated in a rating decision and there was no reliance on benefit payments at that level.  The Board finds that on remand, the Agency of Original Jurisdiction should review the supplemental statement of the case to determine whether a higher rating has been assigned prior to August 13, 2014.

Therefore, the claim is remanded for the following action:

Review the September 2020 supplemental statement of the case and determine whether a 70 percent rating was granted prior to August 13, 2014.  If so, effectuate that grant.  If not, readjudicate the claim and issue a corrected supplemental statement of the case.

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Duke, 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.