Citation Nr: A25035683 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240725-458236 DATE: April 17, 2025 ORDER The issue of entitlement to an earlier effective date for the evaluation assigned to service-connected unspecified depressive disorder with unspecified trauma and stressor related disorder and cannabis use disorder (acquired psychiatric disorder) is dismissed. The issue of entitlement to an earlier effective date for the establishment of basic eligibility to Dependents' Educational Assistance based on permanent and total disability status (DEA) is dismissed. REMANDED Entitlement to a rating higher than 30 percent for acquired psychiatric disorder prior to July 24, 2023, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to an effective date earlier than July 24, 2023, for the establishment of basic eligibility to DEA is remanded. FINDINGS OF FACT 1. An October 23, 2023, rating decision denied an earlier effective date for the grant of service connection for acquired psychiatric disability and increased the rating to 100 percent effective July 24, 2023. 2. In November 2023, the Veteran requested a higher-level review of the decision and appealed the date the increased rating was granted; a concurrent brief indicated the Veteran was appealing the implicit denial of a rating higher than 30 percent for acquired psychiatric disability prior to July 24, 2023. 3. The issue of entitlement to an earlier effective date for the grant of service connection for an acquired psychiatric disability is not on appeal. 4. The issue of entitlement to an effective date earlier than July 24, 2023, for the grant of an increased rating for acquired psychiatric disability is subsumed in the claim for a rating higher than 30 percent for acquired psychiatric disability prior to July 24, 2023. 5. A claim for an earlier effective date for the award of a DEA is already pending before the Board of Veterans' Appeals. CONCLUSIONS OF LAW 1. The claim for an earlier effective date for the grant of service connection for an acquired psychiatric disability is dismissed. 38 U.S.C. § 7105. 2. The claim for an earlier effective date for the establishment of a DEA is duplicative of a claim currently before the Board and is dismissed. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to August 2005. The rating decisions on appeal were issued in October 2023, November 2023, and January 2024. In July 2024, the Board of Veterans' Appeals received VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), wherein the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board notes that the issues listed on the NOD from the October 2023 and November 2023 rating decisions (entitlement to a higher rating for acquired psychiatric disability prior to July 24, 2023, and an earlier effective date for DEA) are duplicative. The Board has characterized the issues accordingly. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the appeal, this additional evidence will be considered by the RO in the adjudication of those claims. 1. An earlier effective date for the grant of service connection for acquired psychiatric disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In October 2023, the AOJ issued a decision denying the claim of entitlement to an earlier effective date for the grant of service connection for acquired psychiatric disability. A November 2023 VA 20-0996 requested a higher-level review of the October 2023 rating decision which denied an earlier effective date for the grant of service connection for acquired psychiatric disability and granted an evaluation of 100 percent for the Veteran's acquired psychiatric disability effective July 24, 2023, specifically alleging clear error in the failure to grant a 100 percent rating prior to July 24, 2023. In a November 2023 brief, the Veteran's attorney argued that he was entitled to "an increased rating for unspecified depressive disorder with unspecified trauma and stressor related disorder and cannabis use disorder prior to July 24, 2023." See Third Party Correspondence at 4 (November 2023). Though the November 2023 HLR decision construed the issue to be entitlement to an earlier effective date for acquired psychiatric disability, a brief submitted with the Veteran's VA Form 10182 continued to seek a higher rating for acquired psychiatric disability prior to July 24, 2023. See VA Form 10182 Notice of Disagreement (June 2022). The record shows that the issue identified as entitlement to an earlier effective date for the grant of service connection for acquired psychiatric disability is actually entitlement to a higher rating for acquired psychiatric disability for the entire appeal period which is duplicative of the claim addressed in the REMAND section below. In light of the representative's statements, there remains no allegations of errors of fact or law for appellate consideration on this issue. Accordingly, the appeal is dismissed. 2. An earlier effective date for the establishment of DEA The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The record shows that the issue identified as entitlement to an earlier effective date for the grant of eligibility for Dependents' Educational Assistance under 38 USC chapter 35 is entirely duplicative of the appeal of the "effective date for basic eligibility to Dependents' Educational Assistance based on permanent and total disability status" addressed in the REMAND section below. Accordingly, there remains no allegations of errors of fact or law for appellate consideration on this issue. Accordingly, the appeal is dismissed. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. A rating higher than 30 percent for acquired psychiatric disability prior to July 24, 2023 The issue of entitlement to a rating higher than 30 percent for acquired psychiatric disability is remanded or correction of an AOJ error in satisfying a statutory duty and for the AOJ to readjudicate this claim in the first instance. See 38 C.F.R. § 20.802 ("[t]he Board may remand for correction of any other error by the [AOJ] in satisfying a regulatory or statutory duty"); see also 38 U.S.C. § 7104(a) ("All questions in a matter, which under section 511(a) of this title is subject to decision by the Secretary, shall be subject to one review on appeal to the Secretary"). A July 2022 rating decision granted service connection and assigned a 30 percent rating for acquired psychiatric disability. See Rating Decision. On his July 24, 2023, VA 20-0995, Supplemental Claim, the Veteran requested a review of the evaluation and effective date assigned in this decision. See VA Form 20-0995. Neither the November 2023 rating decision nor any subsequent decision addresses the Veteran's claim. Therefore, it is still pending adjudication by the AOJ in the first instance. 2. Entitlement to TDIU The Veteran seeks a TDIU. His attorney argues that psychiatric and back symptoms have prevented him from working since 2017. See VA Form 10182 Notice of Disagreement (July 2024). He contends that, as the Veteran has not worked since 2017 and has continuously pursued hus claim, TDIU should be awarded beginning August 10, 2021. Id. Because a decision on the remanded issue of entitlement to a rating higher than 30 percent for acquired psychiatric disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. Additionally, as the issue of entitlement to a TDIU is already remanded, the Veteran will be afforded the opportunity to assist with the development of his TDIU claim by submitting completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In March 2023, the Veteran notified VA that he was requesting virtual examinations as he lived in Gambia, Africa, and did not travel the United Sates for mental health reasons. See VA 21-4138 Statement in Support of Claim (March 2023). In June 2023, VA received a Supplemental Claim application and supporting statement from the Veteran. Of record is a private medical examination completed July 24, 2023, which based conclusions drawn on "interview with the Veteran." See VA Examination (August 2023). An October 2023 letter informed the Veteran that he might be eligible for a TDIU and encouraged him to complete VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits if he wished to pursue the benefit. See Subsequent Development Letter (October 2023). In November 2023, VA received an application for a TDIU signed by the Veteran. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In the concurrent letter, his attorney reported that the Veteran is unable to obtain the requested VA Form 21-4192, Request for Employment Information in Connection with Claim or Disability Benefits because he lived out of the country. Id. VA has not yet received the requested forms and information therein. As the Veteran was able to obtain representation in pursuit of benefits and complete the necessary documents to secure that representation and submit claims while living internationally, the Board sees no reason why he would be prevented from submitting the requested information and forms. This is further supported by evidence establishing that the Veteran is in communication with both his attorney and VA through email and/or telephone. The Veteran and his attorney are cautioned that VA's duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991) ("If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Veteran should cooperate and assist as requested in the development of these matters. 3. DEA prior to July 24, 2023 The Board also finds that the issue of entitlement to an effective date earlier than July 24, 2023, for DEA is inextricably intertwined with the issue of entitlement to a rating higher than 30 percent for acquired psychiatric disability and entitlement to a TDIU. For this reason, those claims must be resolved prior to resolution of the claim for an earlier effective date for DEA. See Harris v. Derwinski, 1Vet. App.180, 183 (1991) (noting that the prohibition against 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, a remand is required for the AOJ to adjudicate the inextricably intertwined issues. The matters are REMANDED for the following action: 1. Adjudicate the issue or entitlement to a rating higher than 30 percent for acquired psychiatric disability prior to July 24, 2023, in the first instance. 2. Send a letter to the Veteran, with a VA Form 21-4192, Request for Employment Information, requesting that the Veteran complete the form and provide any additional information to substantiate a claim of entitlement to TDIU. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Request the Veteran's tax returns to confirm his reported unemployment from 2017 to the present. 4. Adjudicate the inextricably intertwined issue of entitlement to an earlier effective date for DEA. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards, 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.