Citation Nr: 21066821 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-34 020A DATE: November 2, 2021 ORDER From August 27, 2015, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED The appeal as to whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a mental health condition is remanded. FINDING OF FACT From August 27, 2015, the Veteran's service-connected disabilities have precluded him from securing and maintaining a substantially gainful occupation. CONCLUSION OF LAW From August 27, 2015, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2016 and November 2016 rating decisions of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran's substantive appeal (VA Form 9) was received in July 2018, more than 60 days after the issuance of the April 2018 Statement of the Case (SOC). However, the Veteran requested additional time to submit a response, see June 2018 Report of General Information, and while no extension was formally granted the AOJ has accepted the Veteran's substantive appeal. The VA's 60-day time limit to perfect an appeal is not a statutory deadline and it is subject to wavier. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Here, VA has waived any objection to the timeliness of the Veteran's substantive appeal. In October 2020, the Veteran and his wife testified at a virtual hearing before the undersigned. 1. From August 27, 2015, entitlement to a TDIU is granted. The Veteran he asserts that he is unable to secure and maintain substantially gainful employment due to his service-connected disabilities, primarily his shoulders. See, e.g., Board Hearing Transcript; July 2018 VA Form 9. The Board agrees. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is in receipt of service connection for a left shoulder disability rated 50 percent disabling from September 19, 2009; a right shoulder disability rated 30 percent disabling from August 27, 2015; tinnitus rated 10 percent disabling from August 27, 2015; bilateral hearing loss rated zero percent disabling from August 27, 2015; and right shoulder scars rated zero percent disabling August 27, 2015. He is in receipt of a combined 80 percent disability evaluation from August 27, 2015 and thus he meets the schedular criteria for entitlement to a TDIU. Hence, the next question is whether his service-connected disabilities preclude him from securing and maintaining a substantially gainful occupation. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The evidence shows that the Veteran has not received income from employment during the appeal. See, e.g., August 2016 VA Form 21-8940. Thus, the economic component of entitlement to a TDIU is satisfied. With respect to the noneconomic component of a TDIU, the Veteran reports that he left high school in the twelfth grade without graduating and that he does not have a GED. See, e.g., VRE Records; Board Hearing Transcript. He stated that his last substantial employment was as a group home manager from 2000 to 2006. See, e.g., August 2016 VA Form 21-8940. He also reported a brief subsequent period of employment as a chef in an assisting living facility. See Board Hearing Transcript. He reported working delivering pharmaceuticals to nursing homes and hospitals prior to working in the group home. See id. Furthermore, he reported that after he stopped working in the group home he was offered a custodial job as his daughter's school, but that he declined the position because it involved physical labor that he believed was beyond his capability to perform on a routine basis. See id. With respect to the position as a group home manager, the Veteran reported that he enjoyed the helping aspect of this job. It involved taking care of activities of daily living for six men, including bathing and transportation. The job also involved taking care of money for the clients' shopping and responsibility for hiring and firing at the home. See Board Hearing Transcript at 3-4. At the Board hearing, the Veteran reported that he left his job at the group home after undergoing replacement surgery for his service-connected left shoulder disability, and moreover he began experiencing difficulty with management due to attending therapy. See id. at 4-5. VRE records from 2008 show that he reported leaving the job due to his worsening physical condition rendered him unable to perform the requirements of his job. The records note that the Veteran underwent left shoulder replacement in 2007. See VRE Records. A June 2007 VA rating decision states that the Veteran underwent a left shoulder hemiarthroplasty in December 2005 with continuing therapy. See June 2007 Rating Decision. An October 2007 rating decision states that the Veteran underwent left shoulder total arthroplasty (replacement) in May 2007. The Veteran applied for Social Security Administration (SSA) disability benefits in January 2007. In May 2007, the determined that the Veteran was not disabled due to osteoarthritis and affective disorder. In September 2007, the SSA determined that the Veteran was not disabled due to osteoarthritis and diabetes. In April 2009, the SSA determined that the Veteran was disabled, with a primary diagnosis of end stage arthritis of the left shoulder and a secondary diagnosis of osteoarthritis of the bilateral knees. See SSA Disability Determinations. The Veteran participated in VA vocational rehabilitation in 2008 but in March 2009 his file was closed due to his need to recover from his left shoulder replacement. See June 2008 VRE Email; March 2009 VRE Determination. In 2008, a vocational examiner noted that the Veteran's prognosis for vocational rehabilitation was "guarded at best" due to his service-connected left shoulder disability, as well as nonservice-connected knee and mental health disabilities. See August 2008 Vocational Assessment. In September 2016, a VA-contracted examiner reported on the Veteran's left shoulder disability. The examiner stated that the Veteran's left shoulder disability prevented the Veteran from reaching above shoulder level and was productive of chronic pain and significant weakness such that the Veteran could not lift an eight-pound gallon of milk from the top shelf of a refrigerator or tolerate the vibration of a riding lawnmower. The examiner did not discuss the additional impact of the Veteran's service-connected right shoulder disability or explain the functional impact of two service-connected shoulder disabilities. An August 2016 VA examiner stated that due to the Veteran's right shoulder disability, he could not engage in heavy or overhead use of the right arm. Here, the evidence of record shows that the Veteran's education, experience, and skills are only consistent with physical employment. Although his job as a group home manager involved some nonphysical tasks, the position also required physical tasks such as heavy lifting. Moreover, the Veteran's service-connected shoulder disabilities preclude him from securing and maintaining substantially gainful employment involving physical labor. Indeed, the Veteran's inability to lift a gallon of milk with his left arm, coupled with his inability to fully compensate with his other arm, demonstrate that he is precluded from any time of physical employment, and his inability to tolerate vibration demonstrates his inability to use equipment to compensate for these limitations. Thus, as the evidence shows that the Veteran is unable to secure and maintain a substantially gainful occupation, a TDIU is warranted. The Board acknowledges the Veteran's argument that the 2016 VA examinations are inadequate, as they did not include his full SSA records. While this omission limits the probative value of these examinations, it does not render them wholly inadequate. In this regard, the Veteran's shoulder disabilities are not shown to be improving, and thus while the SSA records could show a more severe disability picture, the Board finds that the examination reports can be relied on to establish a minimum level of impairment due to service-connected disability. As the level of impairment shown is consistent with entitlement to a TDIU, there is no need to remand the claim for further examinations. Additionally, the Board acknowledges that the Veteran has limitations from his nonservice-connected disabilities that contribute to his total disability picture. However, the Board has solely considered service-connected disabilities in determining that he is entitled to a TDIU. The Board emphasizes that this is consistent with the SSA determinations of record, which determined that the Veteran was not disabled due to conditions other than his left shoulder disability and that he was disabled primarily due to his end stage left shoulder arthritis. While a secondary nonservice-connected knee disability was also noted by the SSA when it granted disability benefits, the SSA did not consider the additional limitations from the Veteran's right shoulder disability. The Board acknowledges that no examiner has opined that the Veteran's service-connected disabilities preclude substantially gainful employment. However, whether a veteran is able to secure and maintain a substantially gainful occupation is a question for VA adjudicators, not a medical question. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Finally, the Board observes that decision on appeal relates back to the Veteran's May 2016 claim, notwithstanding that he filed his application for a TDIU in August 2016. See November 2016 Rating Decision. On August 27, 2015, the Veteran submitted an intent to file a claim for compensation; thus, the May 2016 formal claim relates back to August 27, 2015, which is also the date the Veteran meets the schedular criteria for a TDIU, and a TDIU is warranted from that date. REASONS FOR REMAND 2. The appeal as to whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a mental health condition is remanded. An August 2016 rating decision determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for a mental health condition. The Veteran filed a timely Notice of Disagreement (NOD) with that decision. See January 2017 NOD. Thus, remand is necessary for the AOJ to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board acknowledges that the AOJ informed the Veteran that this NOD was untimely as to the December 2012 denial of entitlement to service connection for an anxiety condition. See January 2017 Correspondence. However, this untimeliness determination did not address whether the NOD was timely with respect to the August 2016 rating decision. Indeed, it appears that the August 2016 rating decision was overlooked by the AOJ, as any determination that the January 2017 NOD was untimely with respect that decision would be clearly and unmistakably erroneous. The Board acknowledges that the May 2016 petition to reopen sought compensation for a "mental health condition" and did not specifically identify anxiety. However, the AOJ treated the May 2016 claim as seeking to reopen the claim of entitlement to service connection for anxiety that was denied in December 2012, and then denied reopening due to an absence of new and material evidence. Thus, it is unreasonable for the AOJ to then change its posture and treat the December 2012 decision and August 2016 decision as denying different claims. Additionally, the Board acknowledges that the date of notification appealed listed in the January 2017 NOD does not include the August 2016 rating decision. However, the NOD sought to appeal issues from multiple rating decisions issued in the prior year, and the VA's standard form did not include a space for additional dates of notification letters being appealed. In any event, it is clear that the Veteran was attempting to appeal the August 2016 decision. The matters are REMANDED for the following action: Issue an SOC addressing whether new and material evidence has been received to reopen service connection for a mental health condition, along with appellate rights. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.