Citation Nr: 21042701 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-16 371 DATE: July 13, 2021 REMANDED Entitlement to a disability rating greater than 10 percent for major depressive disorder (MDD) with posttraumatic stress disorder (PTSD) from March 4, 2009, to May 17, 2011, greater than 30 percent from May 17, 2011, to August 31, 2012, greater than 50 percent from August 31, 2012, to June 26, 2015, greater than 30 percent from June 26, 2015, to November 21, 2017, and from January 1, 2018, to January 17, 2018, greater than 50 percent from March 1, 2018, to March 9, 2018, from May 1, 2018 to October 24, 2018, and from January 1, 2019, to April 9, 2019, and greater than 70 percent from April 9, 2019, to December 1, 2020, and since February 1, 2021, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2003 to March 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that the RO has assigned multiple temporary total (100 percent) ratings for the Veteran's service-connected MDD with PTSD during the appeal period. It also recharacterized the disability on appeal from MDD to MDD with PTSD based on medical evidence reviewed during the appeal period. Thus, the Board has recharacterized this issue as stated above. See AB v. Brown, 6 Vet. App. 35 (1993). A videoconference Board hearing was held in September 2016 before a Veterans Law Judge (VLJ) and a copy of the hearing transcript has been added to the record. The Board notes that the VLJ who presided over the hearing subsequently retired from the Board. In a January 2021 letter, the Veteran was provided with the opportunity to request a new hearing before a different VLJ. He did not respond. Thus, his hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2019). In Rice v. Shinseki, 22 Vet. App. 447, 543-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is considered part and parcel of an increased rating claim when raised explicitly by the Veteran or reasonably raised by the record. During an April 2019 VA examination, the Veteran reported that he was no longer employed. Additionally, an April 2019 VA treatment record listed various limitations that would prevent him from working and specifically noted that he was unable to work. Accordingly, the Board finds that the a TDIU claim has been raised by the record. With regard to the claim of entitlement to an increased rating for MDD with PTSD, the Board notes that a supplemental statement of the case (SSOC) was issued for this claim in November 2019. Additional pertinent evidence, specifically VA treatment records documenting the Veteran's most recent hospitalization and February 2021 VA examination, has been associated with the claims file since the November 2019 SSOC without a waiver of RO review. Specifically, the Veteran was notified in May 2021 that additional relevant medical records were received after the case was certified to the Board on November 4, 2021, and that, if a response with a waiver of evidence was not provided within 45 days from the date of the letter, then the Board would remand the appeal to the Agency of Original Jurisdiction (AOJ) (in this case, the RO) for review. The Veteran did not reply to the letter. Thus, the Board will remand this matter for AOJ consideration of the additional evidence received since November 2019 in the first instance and issuance of an SSOC. See 38 C.F.R. §§ 19.31(a), 19.37(a). With regard to the issue of TDIU, as explained above, the Board finds that this matter has been raised by the record. See Rice, 22 Vet. App. at 543-54. The AOJ has not yet specifically adjudicated this matter, however. Thus, the Board also finds that, after giving the Veteran an opportunity to file a formal TDIU claim and developing this claim, the AOJ must address this matter in the first instance to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The matters are REMANDED for the following action: 1. Conduct any appropriate development concerning the Veteran's TDIU claim, including sending him a VA Form 21-8940, obtaining a complete post-employment history from him, and obtaining updated VA and private treatment records, if appropriate. 2. Thereafter, readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.