Citation Nr: 18131272
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-34 810
DATE:	August 31, 2018
ORDER
The reduction in the disability rating for a psychiatric disorder from 70 percent to 50 percent was not proper, and is void ab initio.  
A rating in excess of 70 percent for a psychiatric disorder is denied.
New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for a back disorder is denied, and the claim is not reopened.  
REMANDED
Entitlement to total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. A July 2011 rating decision proposed to reduce the assigned disability rating for the Veteran’s service-connected psychiatric disorder, from 70 percent to 30 percent. 
2. The proposed reduction was implemented in a February 2012 rating decision, effective May 1, 2012.  However, in a subsequent June 2012 rating decision, the Veteran’s disability rating was increased to 50 percent, effective May 1, 2012.   
3. The rating reduction (including the subsequent increase to 50 percent) for the Veteran’s assigned psychiatric disability rating was not carried out in accordance with applicable procedures and is void ab initio, and was also not supported by the evidence contained in the record at the time of the reduction.  
4. Throughout the period on appeal, the Veteran’s psychiatric disorder was manifested by occupational and social deficiencies in most areas; there is no showing of total occupational and social impairment.
5. In a November 2008 rating decision, the claim of entitlement to service connection for a back disorder was denied because it was not related to active duty service.  
6. The evidence added to the record since the November 2008 rating decision does not include information that was not previously considered, as well as relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back disorder, the absence of which was a basis of the previous denial.  
CONCLUSIONS OF LAW
1. The February and June 2012 rating decisions that reduced the Veteran’s disability ratings for his service-connected psychiatric disorder were not proper and the reductions are void ab initio.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e).  
2. The criteria for a rating in excess of 70 percent for a psychiatric disorder have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411.
3. The November 2008 rating decision that denied the Veteran’s claim for entitlement to service connection for a back disorder is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  
4. As the evidence received subsequent to the November 2008 rating decision is neither new nor material, the requirements to reopen the claim for entitlement to service connection for a back disorder have not been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1990 to May 1991.  
The Board observes that in its September 2015 statement of the case (SOC), the Regional Office (RO) did not discuss or address the propriety of the reduction in the Veteran’s psychiatric disability rating on appeal.  Specifically, the RO did not address or discuss if the rating reductions complied with the due process requirements under 38 C.F.R. § 3.105(e) and (i), or if there was actual improvement in the Veteran’s disabilities.  Instead, the RO essentially treated the Veteran’s appeal as one for entitlement to an increased rating.  Nevertheless, as the Board is restoring the Veteran’s full ratings, the Board finds that there is no prejudice in adjudicating this claim given that this is a full grant of the benefits sought on appeal.  
Further, the Board observes that the Veteran did not initially file an increased rating claim for his service-connected psychiatric disorder.  Instead, as discussed, the RO adjudicated the Veteran’s rating reduction claim as an increased rating claim, and therefore considered his notice of disagreement and substantive appeal as an appeal to its (partial) denial of an increased rating.  Nevertheless, the Board determines that the Veteran’s increased rating claim for a psychiatric disorder is also on appeal given that the RO led the Veteran to believe this issue was on appeal.  
The Board also notes that the RO received new medical treatment records that were not previously considered in its last statement of the case.  However, a review of these records reveals that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file and/or are redundant and cumulative of the records already on file.  As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required.  38 C.F.R. § 20.1304(c).  
Rating Reductions
1. Whether it was proper to reduce the Veteran’s disability rating from 70 percent to 50 percent for a psychiatric disorder for the period since May 1, 2012
In August 2011, the Veteran filed a new application for TDIU.  In a subsequent November 2011 rating decision, the RO proposed to reduce the Veteran’s service-connected psychiatric disorder from 70 percent to 30 percent.  In February 2012, the RO reduced the Veteran’s psychiatric disability rating to 30 percent, effective May 1, 2012.  However, in June 2012, the RO increased the Veteran’s psychiatric disability rating to 50 percent, effective May 1, 2012.  The Veteran asserts that his overall reduction was not proper.  
As an initial matter, where a reduction in an evaluation is warranted, and results in a reduction of overall compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. Moreover, the Veteran must be notified that he has 60 days to present additional evidence showing that compensation should be continued at the present level and that he has a right to a hearing to present evidence if he wishes.  38 C.F.R. § 3.105(e). 
Here, the Veteran was sent a letter in November 2011 accompanying the rating decision informing him of the proposed action, the reasons and bases therefore, and presented him with 60 days to present additional evidence and to testify at a hearing before the RO if he so wished.  Therefore, he was properly notified of his rights and given the appropriate time to submit evidence before his rating was reduced effective May 1, 2012.  As such, VA met the due process requirements under 38 C.F.R. § 3.105(e) and (i).
In addition to the due process requirements discussed above, prior to reducing a Veteran’s disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.  See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993).  These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.  Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 350 (2000). 
Moreover, in certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b).  These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension.  The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve.  Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating.  Here, the additional protections under 38 C.F.R. § 3.344 (a) and (b) are applicable.  
After a review of the evidence, the Board determines that the overall reduction in the disability rating for the Veteran’s psychiatric disability was not proper.
First and foremost, the Board finds that the February and June 2012 rating decisions demonstrate that the RO essentially analyzed the rating reduction issue just as it would a claim for an increased rating.  Specifically, in it is analysis, the RO failed to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344, as well as the substantive requirements under Faust.  Instead, the RO simply determined that the Veteran did not currently meet the requirements for a 70 percent psychiatric disability rating as of May 1, 2012.  Moreover, there was no discussion regarding any actual improvement of the Veteran’s disabilities since the date of the initial award of service connection in June 2006.  As such, given that a rating reduction appeal focuses on the propriety of the reduction, and is not the same as an increased rating issue, the rating reductions are void ab initio.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).
In any event, the Board notes that a comparison of the medical evidence on record at the time the Veteran’s psychiatric disability was originally assigned a 70 percent rating and at the time it was reduced to 50 percent, including the VA examinations from August 2007, April 2011, June 2011, and May 2012, reflect that the severity of the Veteran’s psychiatric disability has essentially remained the same.  Further, to the extent the Veteran does not currently meet the criteria for the initially assigned 70 percent rating, the Board observes that the Veteran also did not meet the criteria for a 70 percent rating at the time it was originally assigned.  Therefore, a reduction on this basis without a demonstration of actual improvement is not permissible.  
Specifically, the Board notes that the Veteran’s August 2007 VA examination (which was the basis for the originally assigned 70 percent rating) reflects that the Veteran’s psychiatric symptoms were “moderate.” Further, there was no evidence of a thought disorder, hallucinations, suicidal/homicidal ideations, or a psychosis.  Similarly, the Veteran’s April 2011, June 2011, and May 2012 VA examinations indicate that the Veteran still had moderate psychiatric symptoms associated with occupational and social impairment with reduced reliability and productivity.  Moreover, there was again no evidence of a thought disorder, hallucinations, suicidal/homicidal ideations, or a psychosis.  
Therefore, the RO has not sufficiently demonstrated that the Veteran’s disability has improved.  38 C.F.R. § 3.105.   Accordingly, the action to reduce the disability ratings for the Veteran’s service-connected psychiatric disorder is void, and the 70 percent rating is restored as though the reduction had not occurred.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  
Increased Ratings
2. Entitlement to a rating in excess of 70 percent for a psychiatric disorder
The Veteran is seeking an increased rating for his service-connected psychiatric disorder.  
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet.  App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).
Throughout the period on appeal, the Veteran’s psychiatric disorder has been assigned a disability rating of 70 percent under 38 C.F.R. § 4.130, DC 9411.  In order to warrant the next higher 100 percent rating, the evidence must demonstrate total occupational and social impairment due to such symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, DC 9411.
After a review of the evidence of record, the Board determines that a rating in excess of 70 percent is not warranted for any period on appeal.  Indeed, while the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms do not otherwise cause total occupational and social impairment.
Specifically, in an April 2011 VA examination, the Veteran presented as casually and neatly dressed.  He was noted as cooperative and pleasant.  On examination, he displayed symptoms of anxiety and depression, sleep trouble, nightmares, social isolation, irritability, and exaggerated startle response.  His speech and thought process were logical, coherent, and goal-directed.  His judgment and insight were adequate.  There was no evidence of suicidal ideations, thought disorder, or psychosis.  Additionally, the examiner noted that the Veteran may have been “exaggerating the extent and severity” of his symptoms.  At a June 2011 VA examination, the Veteran stated that his symptoms were “quite severe including poor sleep, frequent nightmares, frequent intrusive memories, and much anxiety and irritability, making it difficult to get along with people.”  However, the examiner noted that “there is a strong likelihood [the Veteran] is exaggerating the severity of his symptoms.”  In any event, he opined that “I do not believe it would be easy for this man to find or maintain gainful employment, but neither do I believe it would be impossible or nearly impossible if he made an honest effort.”  
In May 2012 VA examination, the Veteran endorsed symptoms of depression and anxiety.  The examiner opined that the Veteran’s psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity.  At an August 2012 VA examination, the Veteran presented with chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances.  Overall, the examiner reported that the Veteran’s symptoms were “mild to moderate and have persisted for a number of years and do not preclude employment.”  There was no evidence of suicidal ideations, delusions, hallucinations, neglect of personal appearance, intermittent inability to perform activities of daily living, thought disorder, or psychosis.  As such, the examiner opined that his symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  
In October 2013, the Veteran reported depression, anxiety, nightmares, and a “real bad” temper.  He was noted to be casually dressed and well-groomed.  He was cooperative and oriented in all spheres.  His speech and thought process were noted to be normal, logical, and goal-directed.  There was no evidence of suicidal ideations, thought disorder, or psychosis.  In an August 2014 VA treatment evaluation, the Veteran reported that he has depression, irritability, depression, nightmares, poor sleep, and social isolation.  There was no evidence of suicidal ideations, gross neglect of personal appearance and hygiene, thought disorder, or psychosis.  Similarly, in a November 2016 VA treatment evaluation, the Veteran indicated that he has irritability, nightmares, depression, and no energy or motivation.  He denied suicidal or homicidal ideations.  
However, in a November 2016 private evaluation, the Veteran endorsed symptoms of depression, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, suicidal ideations, impaired impulse control, persistent delusions and hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living.  On examination, the Veteran’s concentration and attention were normal.  His speech and thought content were normal and appropriate with goal directed thoughts.  His judgment was noted to be average.  Therefore, his private psychiatrist opined that his symptoms cause occupation and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  
In view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 70 percent for the period on appeal.  Specifically, the Board finds that while the Veteran stated that he has at times had thoughts of suicide, the medical evidence indicates that the Veteran had only sporadic and fleeting reports of suicidal ideations that were not characterized as active and/or with intent or plan.  Moreover, the Veteran denied thoughts of suicide at this most recent November 2016 VA treatment evaluation.  As such, there is not sufficient evidence that the Veteran’s suicidal ideations are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013).  
In arriving at this conclusion, the Board also notes that while the Veteran endorsed/exhibited some additional symptoms of a higher rating during his November 2016 private treatment evaluation,  including hallucinations, delusions, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, VA must nevertheless engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected mental disorder.  See Vazquez-Claudio, 713 F.3d at 115-17.  In this case, the Board determines that these symptoms alone are insufficient to warrant an increased rating given the otherwise relatively mild-moderate array of symptoms and impact on the Veteran – especially in light of the fact that the Veteran was alert oriented in all spheres and displayed essentially normal speech and thought processes without any signs of a psychosis, or thought disorder.  Moreover, the Board determines that the moderate symptoms reported by the Veteran’s VA medical providers, as well as the VA examiners, are more consistent with his overall disability picture given that the Veteran only reported the aforementioned symptoms of a higher rating during a single treatment evaluation.  Additionally, to the extent the Veteran reported more severe symptoms in his November 2016 private evaluation, the Board finds his statements to be less probative given that the VA examiners previously determined that he exaggerated his symptoms in order to get a higher rating.  In any event, the Veteran’s November 2016 private medical provider specifically stated that his symptoms did not causes total social and occupational impairment.  
Next, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as gross impairment of the thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place.  See Mauerhan, 16 Vet. App. 436, 444 (2002).
In this regard, the Veteran’s disorder reflects a moderate impact on his social and occupational functioning.  Nevertheless, the evidence does not indicate that a rating in excess of 70 percent is warranted.  Specifically, the Veteran’s November 2016 VA treatment records reflect that the Veteran has a close and supportive relationship with his sister.  Moreover, the August 2012 VA examiner opined that while the Veteran has “mild to moderate” symptoms, his symptoms “do not preclude employment.”  Finally, as discussed, the Veteran’s November 2016 private medical provider noted that his symptoms did not cause total occupational and social impairment.  Therefore, he did not display total social and occupational impairment even when factoring in other relevant criteria outside of the rating code.  Mauerhan, 16 Vet. App. 436, 444.
In considering the appropriate disability rating, the Board has also considered the statements from the Veteran and his ex-wife, that his service-connected psychiatric disorder is worse than the ratings he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.  While the Veteran and his ex-wife are competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, they are not competent to identify a specific level of disability of his acquired psychiatric disability and ankle disorder according to the appropriate diagnostic codes.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).  
On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.  Specifically, while the Veteran reported symptoms such as irritability, social isolation, depression, anxiety, memory impairment, and sleep difficulties, these symptoms were discussed and addressed by the VA examiners and treating medical providers.  
The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).
In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.  See Thun v. Peake, 22 Vet. App. 111 (2008).  
In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above.  Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board’s analysis.  As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria.  
Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
 
New and Material Evidence
3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a back disorder
In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991).
Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers.  “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999).
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied.  Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement.  See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).
Here, the Veteran is claiming entitlement to service connection for a back disorder.  The claim was previously denied by the RO in November 2008 on the basis that his back disorder was not related to service.  He did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it.  See Buie v. Shinseki, 24 Vet. App. 242 (2011).  This represents the last final denial of the claim. 
After a review of the additional evidence submitted since the November 2008 denial, the Board finds that new and material evidence has not been added to the record to reopen the claim.  The evidence added to the record since the last final denial includes medical treatment records and lay statements.  In this case, the treatment records only serve to confirm that the Veteran has a current back disorder.  Moreover, the medical records added to the record do not indicate a relationship between service and his back disorder.  Similarly, the lay statements added to the record only restate the Veteran’s previous contentions that his back disorder is related to service.  
As the additional records are cumulative of the evidence already in the record, the Board finds that they are not new.  Moreover, the additional evidence fails to demonstrate the disorder’s existence in service or a relationship with service.  Therefore, the Board finds that reopening the bilateral shoulder claim is not warranted.
REASONS FOR REMAND
1. Entitlement to TDIU is remanded.
In this case, given that the Board has restored the Veteran’s 70 percent rating, along with the fact that the RO has obtained additional relevant records on the issue of TDIU, the relevant facts have changed, and the issue of entitlement to TDIU should be reevaluated.  Therefore, the issue of entitlement to TDIU should be remanded for additional consideration by the RO.  
The matter is REMANDED for the following action:
The RO should undertake any additional action it deems necessary in order to properly adjudicate the TDIU claim, including any additional VA examinations.  If the claim is not fully granted, a supplemental statement of the case should be issued on the issue of entitlement to TDIU, and the claims file should be returned to the Board for further appellate consideration.

 
B.T. KNOPE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Meyer, Associate Counsel 
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