Citation Nr: A21008736 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 191010-36767 DATE: May 4, 2021 ORDER Entitlement to an earlier effective date for service connection for right shoulder degenerative arthritis with rotator cuff repair, subacromial decompression, and distal clavicle resection, status post dislocation (dominant) (claimed as right shoulder disability), is granted effective August 30, 2013. Entitlement to an earlier effective date for service connection for right shoulder scars is granted effective March 20, 2018. Entitlement to a rating in excess of 20 percent for a right shoulder disability, since August 13, 2019, is denied. Entitlement to a compensable rating (0 percent) for right shoulder scars, since August 13, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), since August 13, 2019, is denied. REMANDED In addition, the following issues are remanded to the agency of original jurisdiction (AOJ): assignment of an initial disability rating for a right shoulder disability for the period between August 30, 2013 and August 13, 2019; assignment of an initial disability rating for right shoulder scars for the period between March 20, 2018 and August 13, 2019; and entitlement to a TDIU for the period from August 30, 2013 to August 13, 2019. FINDINGS OF FACT 1. Service connection was denied for a right shoulder disability in a September 2006 rating decision, with a notification letter mailed October 2006. The Veteran did not appeal. 2. Since filing a claim for service connection for a right shoulder disability on August 30, 2013, the Veteran has continuously prosecuted his claim until it was granted in a September 2019 rating decision. 3. The Veteran's right shoulder scars are related to his service-connected right shoulder disability and have been present since March 20, 2018. 4. The probative evidence of record demonstrates that the Veteran's right shoulder disability manifests in symptomology of limitation of motion to the shoulder level, but not limited to midway between the side and shoulder level. 5. The Veteran's right shoulder scars were not tender, unstable, or had underlying soft tissue damage. In total, the estimated total area of scarring was less than 144 square inches. 6. Since August 13, 2019, the Veteran's service-connected disabilities have not prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience CONCLUSIONS OF LAW 1. The criteria for an earlier effective date for service connection for a right shoulder disability have been met effective August 30, 2013. 38 U.S.C. § 5107, 5110, 7105; 38 C.F.R. §§ 3.155, 3.157, 3.160, 3.2400, 3.2500, 3.2501. 20.302, 20.1103. 2. The criteria for an earlier effective date for service connection for right shoulder scars have been met effective March 20, 2018. 38 U.S.C. § 5107, 5110, 7105; 38 C.F.R. §§ 3.155, 3.157, 3.160, 3.2400, 3.2500, 3.2501. 20.302, 20.1103. 3. The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met since August 13, 2019. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, 4.71a, Diagnostic Code 7201. 4. The criteria for a compensable disability rating for right shoulder scars have not been met since August 13, 2019. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7802. 5. Since August 13, 2019, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 1979 to July 1982. The Veteran's claims for service connection were granted in a September 2019 rating decision. In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Such evidence was submitted and will be considered by the Board. Earlier Effective Date 1. Entitlement to an earlier effective date for service connection a right shoulder disability 2. Entitlement to an earlier effective date for service connection for right shoulder scars The Veteran contends that service connection for a right shoulder disability and associated right shoulder scars should be granted effective August 30, 2013 because the Veteran's service connection claim has been continuously prosecuted since that time. Except as otherwise provided, the effective date of an evaluation and an award of compensation based on a claim for service connection will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Where a claim is subject to the modernized review system under the Appeals Modernization Act (AMA), provisions exist that permit an effective date based on date of claim to be "preserved" following issuance of a decision. See 38 C.F.R. §§ 3.2400, 3.2500. In particular, a veteran "may continuously pursue a claim or an issue by timely and properly filing [an enumerated] administrative review [option]" following issuance of a decision by a RO, the Board, or the Court of Appeals for Veterans Claims. See § 3.2500(c), (h). An effective date will be preserved if a Veteran files for administrative review within one year of any decision. § 3.2500(h). However, while the date of claim is preserved when a claim is continuously pursued, the proper effective date is still subject to a finding regarding when entitlement to the benefit sought arose. The procedural history in the instant case is somewhat complex as it relates to determining the period on appeal. The Board must review the procedural history both before and after the Veteran opted-into the AMA review system. a. Legacy System In November 2005, the Veteran filed a claim for service connection for a right shoulder disability. It was denied in a rating decision dated September 28, 2006. However, the notification of the rating decision was not issued until October 4, 2006. After the rating decision was issued and prior to the notification, the Veteran filed another claim for service connection for his right shoulder, received September 30, 2006. Importantly, under the legacy system, while a veteran has one year to note his or her disagreement with a rating decision, the notice of disagreement must be filed within one year from the date of the mailing of notice of the decision of the AOJ. 38 U.S.C. § 7105(b)(1)(A). The Veteran did not file a notice of disagreement nor submit any new and/or material evidence related to his claims within one year of the notice. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. Because the Veteran did not initiate a formal appeal of this rating decision by filing a notice of disagreement nor did he submit new medical evidence within one year of this rating decision which would render the rating decision non-final for VA purposes under 38 C.F.R. § 3.156(b), the September 2006 rating decision is final. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Regardless, the effective date of an award for compensation based on a claim reopened after a final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. After the September 2006 rating decision, the Veteran filed a claim to reopen on August 30, 2013. This was adjudicated in a June 2014 rating decision, which continued to deny service connection for the shoulder disability. The Veteran timely filed a notice of disagreement in October 2014, which was acknowledged by the agency of original jurisdiction (AOJ) in a January 2015 letter. The Veteran immediately elected the Decision Review Officer Process. From there, it is unclear why the AOJ failed to act. However, no statement of the case was issued, as would have been procedurally appropriate under the legacy system. Thus, the legacy appeal continued to remain open. b. Appeals Modernization Act (AMA) system During the course of the appeal, major legislation was passed that changed VA's appeals process significantly. Prior to the February 2019 implementation date of that change to the AMA, VA offered Veterans the opportunity to opt into the new system, whereby withdrawing their legacy appeal and having their appeal adjudicated under the new laws instead. While opting into the new system withdraws the legacy appeal, it does not negate the history of that appeal, meaning, that the appeal continues to stem from the original legacy application, which in this case was in August 2013. In March 2018, the Veteran opted into the modernized review system by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. The AOJ issued a RAMP supplemental claim decision in May 2018, which continued to deny service connection. Well within the one-year time period to seek review, the Veteran requested review of the May 2018 decision by submitting a second supplemental claim through the RAMP opt in process in September 2018. The AOJ did not acknowledge this claim, nor act on it any way. Thus, this claim remained open and remained attached to the original August 2013 legacy claim and appeal because it was a continuous prosecution of that claim. The Veteran again submitted a supplemental claim in August 2019. This claim spurred the AOJ into action, and the September 2019 decision was issued, granting service connection for the shoulder disability and scars, and establishing an August 2019 effective date, based on the most recent claim. The rating decision notes that an earlier effective date could be not established because VA "did not receive your reopened claim within one year of the notification of the last denial." However, this statement does not acknowledge the prior appeal, or the unanswered second supplemental claim in September 2018, which was within one year of the last denial in May 2018. As stated above, 38 C.F.R. § 3.2500 allows Veterans to preserve an effective date based on an initial date of claim as long as they continuously pursue a claim by timely filing for administrative review within one year of an adverse decision. A supplemental claim is one of the enumerated administrative review options. The AOJ issued an adverse decision in May 2018 following the Veteran's choice to opt-into the modernized review system from his August 2013 claim and subsequent appeal of the denial. The Veteran preserved his initial claim date from the legacy appeals system when he timely filed for review under the supplemental claim lane in September 2018. While this supplemental claim was not separately adjudicated, the Veteran had still filed for administrative review within one year of the May 2018 rating decision. Thus, any subsequent rating decision must necessarily address this period because the appeal remains open; the AOJ did not do this in this case. Based on the above facts, the Board finds that when the Veteran opted-into the AMA review system in March 2018, he continuously prosecuted his claim and the initial legacy date of claim was preserved under the new AMA rules. Although his November 2005 claim was finally decided in September 2006, his August 2013 claim was not decided until the September 2019 rating decision granting the claim. Thus, August 30, 2013 is the proper effective date for the grant of the Veteran's claim for service connection for a right shoulder disability. As for the Veteran's associated right shoulder scar, the evidence is clear that it is the result of a surgery dated March 20, 2018. Service connection for a disability cannot be established before that disability existed. Thus, the date entitlement arose for the scars in this case is March 20, 2018 the date of the surgery causing the scars. Therefore, the appropriate effective date of service connection for those scars must be established for that date. Increased Ratings The Veteran contends that he should have increased ratings for both his right shoulder and right shoulder scar disabilities. As discussed in the remand section below, the Board cannot assign ratings in the first instance. Thus, the Board will adjudicate the ratings from August 13, 2019 forward. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Right shoulder disability The Veteran's representative contends that the Veteran should be awarded a higher rating. Specifically, he asserts that from April 2019 forward, the Veteran had limited abduction to 5 degrees and severe loss of internal rotation. See Medical Treatment Record - Non-Government Facility, received January 7, 2020. The representative also raises arguments for the rating prior to the period on appeal. The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). During the pendency of this appeal, VA amended the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a), effective from February 7, 2021. The descriptions of limitation of motion were clarified in this amendment. Limitation of motion of the arm at "the shoulder level" means flexion and/or abduction limited to 90 degrees. Limitation of motion of the arm "midway between the side and shoulder" is flexion and/or abduction limited to 45 degrees. Limitation of motion of the arm to 25 degrees from side is based on flexion and/or abduction. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Analysis While the Veteran's file contains many records that pre-date August 13, 2019, there is only one medical record that addresses the Veteran's functioning of his right shoulder during the appeal period: the September 2019 VA examination. The Veteran reported sharp pain in his right (dominant) shoulder that occurred on a daily basis. He reported flare-ups of pain during any lifting activity. As for functional loss, he stated he could not lift overhead. Upon range of motion testing, his right shoulder was limited to 70 degrees abduction and 80 degrees flexion. Upon repetitive use and during flare-ups, those numbers decreased to 60 degrees abduction and 70 degrees flexion. The Veteran had a slight reduction in strength in his right shoulder. A Hawkins impingement test was positive on the right. The examiner found a history of infrequent episodes of recurrent dislocation, but the Veteran did not endorse current episodes. Given the above, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for his right shoulder disability. The evidence of record shows that the Veteran is right-handed. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that any sort of lifting would cause pain would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level (45 degrees). At most, during flare-ups and repetitive use, the Veteran would have 60 degrees abduction and 70 degrees flexion. The Board has considered the Veteran's argument that his shoulder is limited to five degrees of abduction and severe loss of internal rotation. See Medical Treatment Record - Non-Government Facility, received January 7, 2020. However, the record to which the representative directs the Board's attention is not based on an in-person examination such that an accurate range of motion measurement could be taken. Further, considering the evidence the clinician had available to him, the most recent record would have been from January 2019, eight months prior to the Veteran's application, during which time the Veteran was recovering from surgery. See Medical Treatment Record - Non-Government Facility, received August 13, 2019. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the probative medical record does not substantiate greater limitations for the period on appeal and the Board finds the medical record more probative than the Veteran's lay statements. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for a right shoulder disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Right shoulder scars The Veteran is service-connected for scars of his right shoulder associated with a surgery performed in March 2018. He is in receipt of a noncompensable (0 percent) rating under Diagnostic Code 7802. The diagnostic codes related to scars have been amended three times: August 30, 2002, October 23, 2008, and August 13, 2018. The Veteran's claim has been pending since March 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under Diagnostic Code 7802 because the Veteran's right shoulder scars do not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. The most probative evidence is from the September 2019 VA scar examination of the Veteran's right shoulder. Neither of his right shoulder scars were tender, unstable, or had underlying soft tissue damage. The examiner estimated that total area to be less than 144 square inches (929 sq. cm.): anterior scar, 0.75 cm by 0.75 cm; posterior scar, 0.5 cm x 0.5 cm. The Board has considered the other diagnostic codes pertaining to scars. However, the Veteran's right shoulder scars are not of the head, face, or neck, are not deep and non-linear, and are not associated with underlying soft tissue damage. Moreover, the Veteran's right shoulder scars are not unstable or painful. Therefore, DCs 7800, 7801, and 7804, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre-and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, medical treatment records do not show that the Veteran's right shoulder scars manifest in additional symptomology or in an area or areas of 144 square inches (929 sq. cm.) or greater. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for his right shoulder scars. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU 5. Entitlement to a TDIU since August 13, 2019 A TDIU has been raised by the record related to the Veteran's service-connected right shoulder disability. See Medical Treatment Record - Non-Government Facility, received January 7, 2020. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). The Board may only adjudicate TDIU from the date of the AOJ decision and the assigment of initial ratings have not yet been made. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Factors to be considered in determining whether unemployability exists are the Veteran's education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran's age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total (100 percent) disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a). A total disability rating may be assigned under a Diagnostic Code where the Diagnostic Code associated with a disability prescribes a 100 percent disability rating. Additionally, regulations provide other methods by which TDIU may be awarded. TDIU may be assigned to a veteran who is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities," provided that he has received a disability rating of 60 percent or greater, or if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40 percent, and the combined disability rating for all disorders is at least 70 percent. 38 C.F.R. § 4.16(a). Since August 13, 2019, the Veteran's service-connected disabilities combine to form a 20 percent rating, as follows: 20 percent for right shoulder disability; and 0 percent for right shoulder scars. Thus, for the period on appeal, the Veteran does not meet the schedular criteria for entitlement to a TDIU. However, the Veteran may still be entitled to a TDIU on an extraschedular basis if his service-connected disabilities render him factually unemployable. The Board does not so find. The only service-connected condition with any functional limitation is the Veteran's right shoulder which limits his ability to perform work that requires lifting or reaching/working overhead. This alone does not so diminish the Veteran's ability to be gainfully employed because his ability to sit, walk, take direction, attend to tasks and supervision, interact with coworkers and the public, and maintain attention are unaffected. The Board has considered the opinions of vocational experts in the file. See Medical Treatment Record - Non-Government Facility, received August 13, 2019; Medical Treatment Record - Non-Government Facility, received January 7, 2020. However, these opinions include consideration of the Veteran's shoulder prior to the period on appeal. Thus, they are not probative to the Veteran's functioning since August 13, 2019 and are given little probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds that the Veteran is not factually unemployable since August 13, 2019 and his service-connected disabilities have not rendered him unable to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (in a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator); see also Gilbert, supra. Therefore, the Veteran is not entitled to a TDIU for this period. REASONS FOR REMAND 6. Assignment of an initial rating for a right shoulder disability for the period between August 30, 2013 and August 13, 2019 is remanded. 7. Assignment of an initial rating for right shoulder scars for the period between March 20, 2018 and August 13, 2019 is remanded. 8. Entitlement to a TDIU for the period between August 30, 2013 and August 13, 2019 is remanded. As discussed above, the Board is granting an earlier effective date for the awards of service connection for a right shoulder disability and an initial rating for right shoulder scars. The Board's review of the evidence is limited to the appeal period addressed by the AOJ: since August 30, 2019. As the AOJ has not considered evidence in the first instance and no waiver of this prior evidence has been submitted by the Veteran, the Board cannot assign a rating in the first instance. See e.g. 38 C.F.R. §§ 19.37; see also See 38 C.F.R. § 20.903; Thurber v. Brown, 5 Vet. App. 119 (1993). The Board may only remand a claim to correct a duty to assist error by the AOJ. 38 U.S.C. § 5103A governs the duty to assist claimants. 38 U.S.C. § 5103A(h) states: "nothing in this section shall be construed to require the Secretary to readjudicate a claim that has been disallowed except when new and relevant evidence is presented or secured." Here, the Veteran presented new and relevant evidence to reopen his claim for service connection and the AOJ did not fully assist the Veteran in substantiating his claim for an initial rating, to include providing assistance in obtaining private records. The Veteran submitted private medical opinions from Dr. K.D. and Dr. J.M., but the AOJ did not inform the Veteran of the need to submit treatment records from these providers in support of his claim for service connection and an increased rating. Given this duty to assist error, a remand is required. Further, a TDIU has been raised by the record. See Medical Treatment Record - Non-Government Facility, received January 7, 2020. See Rice, supra. Because a decision on the remanded issues of initial ratings could significantly impact a decision on the issue of entitlement to a TDIU for the period between August 30, 2013 and August 13, 2019, the issues are inextricably intertwined. Thus, a remand of the claim for a TDIU for this period is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers who treated the Veteran for his right shoulder since August 30, 2013. Make two requests for the authorized records from the identified providers, unless it is clear after the first request that a second request would be futile. 2. Thereafter, effectuate the grants of earlier effective dates for the Veteran's right shoulder disability (to include a period of convalescence) and right shoulder scar and assign initial ratings for these conditions. Further, adjudicate the Veteran's entitlement to a TDIU since August 30, 2013. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.