Citation Nr: 22014292 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-23 707 DATE: March 12, 2022 REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The claim of entitlement to service connection for arthritis of the right shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to July 2007, including in the Southwest Asia theater of operations during the Persian Gulf War. He has received multiple awards for this service, including a Combat Action Ribbon. His appeal originates from an August 2015 Department of Veterans Affairs (VA) rating decision. The Veteran and his caregiver testified in support of these claims during a hearing held before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ) in May 2019. In September 2020, the Board, in pertinent part, denied service connection for arthritis of the right shoulder and increased the rating assigned the Veteran's bipolar disorder with posttraumatic stress disorder (PTSD) to 70 percent. The Veteran then appealed the Board's denial to the United States Court Of Appeals For Veterans Claims (Court) as well as what the Court described as an effective denial of a TDIU, raised as a component of the claim for an increased rating for bipolar disorder with PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for a TDIU, once raised, becomes part of claim for benefits for underlying disability). In September 2021, based on Joint Motion For Partial Remand (JMPR), the Court remanded these claims to the Board for action consistent with the terms of the JMPR. Entitlement to a TDIU The Veteran initially filed a TDIU application in September 2015, alleging that his migraines and bipolar disorder had affected his full-time employment since July 2007. The Agency of Original Jurisdiction denied this claim in August 2015 and November 2015, denials the Veteran did not appeal. The Veteran filed another TDIU application in March 2021, claiming that all of his service-connected disabilities, considered collectively, hindered him from performing any job satisfactorily. Despite the 2015 unappealed denials, because the TDIU claim was raised, in part, as a component of the claim for an increased rating for the psychiatric disability now on appeal, it remains in appellate status before the Board. Payne v. Wilkie, 31 Vet. App. 373 (2019) (when TDIU claim is raised as a component of an increased rating claim, claimant need not appeal AOJ's denial of claim for it to remain in appellate status); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). During this appeal, the Veteran received vocational rehabilitation benefits and pursued college (2014 to 2017), and secured employment. The record conflicts regarding whether the Veteran is still working at the job he last obtained in April 2017, and whether and at what point(s) during the time period at issue in this case, such work may be considered gainful employment. According to a July 2018 statement of the Veteran's supervisor and a January 2019 statement of YO, M.D, the Veteran's psychiatrist, as of early 2019, the Veteran was on medication that kept him stable and was under no restriction or limitations at work. During a December 2019 treatment visit, Dr. YO indicated that, although the Veteran's PTSD symptoms were hard, he was still able to work. According to the Veteran's and his caregiver's October 2020 statements, as of May 2020, with the exception of one week in August, the Veteran was unable to work and on FMLA (family leave) due to a mental health crisis and related conditions. The Veteran's FMLA application, signed by a doctor, requests 30 to 60 days of leave from September 3, 2020, for cardiology and psychiatry treatment. However, in describing in more detail the basis of the request, the Veteran indicated that certain physical activities could worsen his symptoms, that a combination of those symptoms were concerning for coronary artery disease, and that before he resumed his duties, he needed to be evaluated by a cardiologist. He then indicated that his employer should restrict certain activities and allow him to attend his appointments. In August 2020, during a consultation with a veterans' hotline, the Veteran indicated that he was in the process of negotiating a return to work. However, in November 2020, he applied for additional vocational rehabilitation benefits with the goal of continuing to provide for his family by gaining the knowledge, skills, and aptitudes required professionally. He indicated that he wished to pursue a degree in Occupational Safety and obtain at least two years of experience in the field. He noted that he already had five years of experience in safety and four years of experience in environmental work, wanted to train other employees in workplace safety, and enjoyed helping the team succeed. During a VA PTSD examination in January 2021, the Veteran indicated that he was working in customer service at a lounge on base (likely referring to Hornet's Nest, where he became employed in 2017) but had only shown up one of the last six months. He claimed that his employer had asked him to stay away given that he was a high COVID risk. In February 2021, the Veteran visited Dr. YO, initially requesting a certificate of diagnosis so that he could work part time. Later the same day, he returned, indicating that he thought part-time work would be difficult, was thinking about enrolling in a distance learning school, and needed a physician's signature. Dr. YO subsequently submitted a statement to VA indicating that the Veteran could not work due to his service-connected injuries. In April 2021, the Veteran's employer submitted a form indicating that the Veteran was still working there but part time, with greatly reduced hours. The employer confirmed that the Veteran had previously taken 12 weeks of FMLA and safety leave on account of COVID. Given this timeline and the fact that TDIU may not be assigned when a Veteran is gainfully employed, it is crucial that VA contact the Veteran's employer directly to determine the Veteran's employment status during the entire time period at issue in this case. Entitlement to service connection for arthritis of the right shoulder In a September 2021 Summary of Issues, the Veteran contends that the Board has failed to translate all "foreign language documents", to include potentially relevant records. He identifies these documents by numbers presumably assigned when the case was appealed to the Court. The Board is not privy to these numbers and is unclear as to which documents the Veteran is referring. The file includes May 23, 2019, July 8, 2019, and July 27, 2019, submissions of documents written in Japanese, most appearing to be bills (one actually includes handwritten notation identifying document as a bill). The file also includes a recent submission of treatment records from Dr. YO, which have been translated. The Board is unsure whether the Veteran has seen the translations, which are now part of the record. Further clarification is needed. These matters are REMANDED for the following action: 1. Contact the Veteran and ask him to identify by provider the documents to which he referred in September 2021 as needing translations. Determine whether any remain that need to be translated, and if so, translate such documents and associate the translations with the record. 2. Contact the Veteran's place of employment, Single Marine Program, Hornet's Nest, in Iwakuni, Japan, directly. Ask the employer to do the following: a. indicate in writing when the Veteran began working full time at the Hornet's Nest and how much pay he received weekly; b. identify all periods of part-time work and the weekly pay the Veteran received during those periods; c. identify all periods of leave, including FMLA and Covid-related, and indicate whether the leave was paid or unpaid; d. indicate whether the Veteran is still working and, if so, identify the numbers of hours he works and his weekly pay; (Continued on the next page) e. discuss whether, due to mental health issues, you requested the Veteran to begin working part time or take leave or whether the Veteran requested the change on his own initiative; and f. discuss whether and to what extent, prior to the change, the Veteran was able to accomplish the tasks his job required. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.