Citation Nr: 22054546 Decision Date: 09/24/22 Archive Date: 09/24/22 DOCKET NO. 07-03 944 DATE: September 24, 2022 REMANDED The issue of entitlement to an effective date prior to February 12, 1996, for the award of an increased rating for anxiety reaction with depressive features (psychiatric disorder) is remanded for further development. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 20, 2011, is remanded for further development. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1966 to December 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2006 and January 2008 decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). In the September 2006 rating decision, a VA RO denied entitlement to a TDIU. Comparatively, in January 2008, a VA RO continued a 50 percent rating for a service-connected psychiatric disorder. This adjudicative action was based upon VA receiving a VA mental disorders examination earlier that month. However, in February 2006, the Veteran had filed an informal claim seeking an increased rating for his psychiatric disorder in response to a prior rating decision from November 2005 that assigned a 50 percent rating for the psychiatric disorder, effective February 12, 1996. This November 2005 rating decision implemented an October 2005 Board decision that granted an increased rating of 50 percent for a psychiatric disorder, but did not assign an effective date. Thus, the RO's November 2005 decision to assign an effective date of February 12, 1996, for the award of a 50 percent rating constituted an initial determination as to this issue. Further, the January 2008 rating decision continued the assignment of a 50 percent rating for the Veteran's psychiatric disorder, effective February 12, 1996. In January 2011, the Board remanded the issues of entitlement to a disability rating greater than 50 percent for a psychiatric disorder and entitlement to a TDIU for further development. Thereafter, in May 2012, a VA RO issued a rating decision granting an increased 100 percent rating for the Veteran's psychiatric disorder, effective May 20, 2011. However, this award did not represent a total grant of the benefits sought on appeal. Accordingly, the issue of entitlement to a rating greater than 50 percent for a psychiatric disorder prior to May 20, 2011, remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In addition, the May 2012 rating decision also mooted the issue of entitlement to a TDIU from May 20, 2011, onward. However, entitlement to a TDIU prior to May 20, 2011, remained in appellate status. See Harper v. Wilkie, 30 Vet. App. 356 (2018). In December 2012 and June 2017, the Board remanded the issues of entitlement to a rating greater than 50 percent for a psychiatric disorder prior to May 20, 2011, and entitlement to a TDIU prior to May 20, 2011, for additional development. Subsequently, in March 2021, the Board issued a decision denying both issues. The Veteran disagreed with the Board's March 2021 decision and appealed it to the Court of Appeals for Veterans Claims (Court). In December 2021, the Veteran and the Secretary filed a Joint Motion for Remand (JMR) moving the Court to vacate the March 2021 Board decision and remand the case for additional proceedings. The Court granted the parties' JMR later that month. The case has now returned to the Board. 1. Psychiatric Disorder In August 2022, the Veteran's representative submitted a brief requesting entitlement to an earlier effective date for the award of an increased rating for the Veteran's psychiatric disorder. Specifically, the representative noted that, in January 1975, VA issued a rating decision that denied entitlement to a rating greater than 30 percent for the Veteran's psychiatric disorder. The Veteran then filed a timely notice of disagreement (NOD) in February 1975, and VA issued a statement of the case (SOC) on August 28, 1975. In this SOC, VA continued to evaluate the Veteran's psychiatric disorder as 30 percent disabling. In response to this SOC, the Veteran filed a VA Form 9 on October 2, 1975. The Veteran's representative contended in his August 2022 brief that a Board decision was never issued in response to the October 1975 VA Form 9 and, accordingly, the increased rating claim adjudicated in January 1975 remained open and pending. Accordingly, the representative argued that the period on appeal began on September 4, 1974, the date VA received the claim adjudicated in the January 1975 rating decision. After reviewing the evidence of record, the Board agrees with the contentions of the August 2022 brief regarding the September 4, 1974, claim being open and pending. Specifically, at the time the August 28, 1975, SOC was issued, a claimant could perfect an appeal by filing his or her substantive appeal within 60 days from the date of mailing of the SOC. See 38 C.F.R. § 19.118(b)(1) (1975). Here, the Veteran filed his VA Form 9 within 60 days of the August 28, 1975, SOC. Thus, he was entitled to a decision regarding entitlement to a disability rating greater than 30 percent for his psychiatric disorder. The Board did not issue such a decision until October 2005, when it awarded a 50 percent rating. Notably, the October 2005 Board decision did not specify an effective date for its award, thusly permitting the Agency of Original Jurisdiction (AOJ) to assign an effective date in the first instance. The AOJ did as such in the November 2005 rating decision, when it assigned February 12, 1996, for the award of a 50 percent rating. The Board notes that the Veteran filed an informal claim concerning his psychiatric disorder in February 2006within 1 year of the November 2005 rating decision. This claim was ultimately adjudicated in January 2008 when a VA RO issued a rating decision continuing the Veteran's 50 percent rating, effective February 12, 1996. As stated previously, the January 2008 rating decision is currently one of the two rating decisions on appeal. Significantly, the issue of entitlement to an effective date prior to February 12, 1996, has not yet been evaluated by the AOJ in the first instance. If the Board were to evaluate this effective date issueas well as the severity of the Veteran's psychiatric disorder for the period prior to February 12, 1996in the instant decision without prior AOJ consideration, it could possibly prejudice the Veteran by infringing upon his right to one review on appeal. See 38 U.S.C. § 7104; Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). Accordingly, the Board has recharacterized the issue on appeal as entitlement to an earlier effective date prior to February 12, 1996, for the award of an increased rating for a psychiatric disorder, and remands this issue to the AOJ for initial adjudication. 2. TDIU prior to May 20, 2011 Here, the issue of entitlement to a TDIU prior to May 20, 2011, may be impacted by the outcome of the remanded earlier effective date issue. Accordingly, entitlement to a TDIU prior to May 20, 2011, must also be remanded as it is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Adjudicate the issue of entitlement to an earlier effective date prior to February 12, 1996, for the award of an increased rating for a psychiatric disorder, considering the open and pending status of the September 4, 1974 claim leading to the current appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for a response. Thereafter, return the case to the Board for further appellate consideration. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.