Citation Nr: 22014131
Decision Date: 03/15/22	Archive Date: 03/15/22

DOCKET NO. 18-20 877
DATE: March 15, 2022

ORDER

Entitlement to a disability rating in excess of 30 percent for major depressive disorder 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 August 1993 to September 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran a rating in excess of 30 percent for her major depressive disorder.

A Board hearing was held in November 2021.  A transcript is of record.

The Veteran maintains that her major depressive disorder is more severe than her current disability rating would indicate and is productive of unemployability.

Governing statutes provide that waiver of initial Agency of Original Jurisdiction (AOJ) review of evidence submitted by the Veteran or her representative to the AOJ or the Board is presumed in cases where, as here, the substantive appeal was filed after February 2, 2013.  See 38 U.S.C. § 7105(e) (2016); VA Fast Letter 14-02 (May 2, 2014).  Conversely, there is no automatic waiver of AOJ review where evidence is obtained by VA rather than the Veteran.

Additional evidence, to include relevant VA treatment records and a VA examination report concerning the Veteran's major depressive disorder, have been associated with the evidentiary record since the March 2018 statement of the case (SOC).  Although the Veteran's substantive appeal was filed after February 2, 2013, VA obtained treatment records and an examination report thereafter.  Thus, there is no automatic waiver of AOJ review, and the claim must be remanded for adjudication by the AOJ and the issuance of a supplemental statement of the case (SSOC).

The Board also notes that the Veteran has described receiving treatment, to include services provided by a psychiatrist on a monthly basis and therapy on a weekly basis.  See January 2022 DBQ, August 2019 Veteran's statement, October 2017 VA examination report.  Specifically, the Veteran receives psychiatrist treatment from the Kansas University Medical Center and therapy from a social worker, C.P.  See October 2017 VA examination report.  On remand, the AOJ should make attempts to request these documents from the Veteran.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for her major depressive disorder that are not already of record.  All obtained records should be associated with the evidentiary record.  If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified, and the record clearly documented.

2. Obtain any outstanding relevant private treatment records, to include from Kansas University Medical Center and Therapist C.P.  The Veteran's assistance should be requested as needed.  All obtained records should be associated with the evidentiary record.  If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified, and the record clearly documented.

3. After the above has been completed to the extent possible, readjudicate the claims.  If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board.

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Strickland

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.