Citation Nr: 23027079 Decision Date: 05/07/23 Archive Date: 05/07/23 DOCKET NO. 16-15 445A DATE: May 7, 2023 ORDER The appeal with respect to whether the Veteran filed a timely Notice of Disagreement as to a September 8, 2016 rating decision is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from November 22, 2022, is granted. REMANDED Entitlement to a TDIU prior to November 22, 2022, is remanded. FINDINGS OF FACT 1. A September 8, 2016, decision notice was mailed to the incorrect address for Veteran's then-representative and the presumption of regularity is rebutted. 2. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's Notice of Disagreement received on December 12, 2018, was received as timely with regard to the September 8, 2016, rating decision. 3. From November 22, 2022, the Veteran meets the basic schedular criteria for a grant of TDIU, and his service-connected disabilities combine to render him unemployable. CONCLUSIONS OF LAW 1. The criteria for filing a timely substantive appeal in response to the September 8, 2016, rating decision have been met. 38 C.F.R. §§ 20.202, 20.302. 2. From November 22, 2022, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision and a December 2018 decision letter issued by a Department of Veterans Affairs (VA) Regional Office (RO). As was explained in earlier decisions subject to this docket number, the TDIU claim was previously included as part and parcel of increased rating appeals previously before the Board under the holding in Rice v. Shinseki, 22 Vet. App. 477 (2009). Although the associated increased rating claims have since been decided, the TDIU appeal has been remanded for additional development. It is now returned to the Board for further appellate review. The question of the timeliness of the Veteran's Notice of Disagreement with a September 2016 rating decision was appealed separately and has been merged into the earlier docket number. The Board notes that during the pendency of the appeals, the Veteran's former attorney withdrew as power of attorney in all matters. On March 13, 2023, VA sent correspondence to the Veteran notifying him of the withdrawal of his attorney as representative and allowing him the opportunity to appoint new representation. He did not respond to that request and the Board will proceed with the Veteran unrepresented. Timeliness of Appeal When VA mails decisions and other correspondence to applicants and their representatives, there is a presumption of regularity in the law to the effect the presumption of regularity supports the official acts of public officers. In the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). The presumption of regularity is applied to procedures of the Agency of Original Jurisdiction (AOJ). Mindenhall v. Brown, 7 Vet. App. 271 (1994). An appellant may rebut the presumption of regularity by producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. See Woods v. Gober, 14 Vet. App. 214, 220 (2000); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Where the appellant has presented clear evidence to rebut the presumption of regularity, the burden shifts to VA to establish proper mailing. Baxter v. Principi, 17 Vet. App. 407, 410 (2004). Where VA fails to carry its burden of showing compliance with mailing procedures, "the period for filing [an . . .] Appeal does not begin to run until the defect is cured." Crain v. Principi, 17 Vet. App. 182, 187 (2003). 1. Whether the appellant filed a timely Notice of Disagreement as to the September 8, 2016, rating decision. The RO issued a rating decision on August 31, 2016, which denied claims of service connection for right shoulder pain, allergies, a cerebrovascular accident, gastroesophageal reflux disease (GERD), hypertension, lumbar strain, Paget's disease, scars due to frostbite, tobacco abuse, ulcers, and entitlement to a TDIU. The RO sent notification of that rating decision on September 8, 2016, to the Veteran and his representative. The Veteran did not file a Notice of Disagreement (NOD) within one year of the issuance of that rating decision but did submit two NODs with that decision on December 11, 2018, with the explanation that the Veteran's then-attorney did not receive a copy of the rating decision, as it was mailed to the wrong address. On December 28, 2018, the RO issued the decision letter now on appeal rejecting those NODs. The appellant appeals the decision as to the timeliness of the NODs. The Veteran's former attorney argued that she did not receive a copy of the rating decision, as it was not mailed to her correct address. A review of the evidence of record reveals that the street number listed for the Veteran's former attorney's address on the notice letter sent on September 9, 2016, was incorrect. Although the letter was not returned as undeliverable, it is quite clear from the record that it was mailed to the wrong address, and the Veteran's attorney asserted that it was not received. An appellant's bare statement of non-receipt of mail, without more, is not the type of "clear evidence" that can rebut the presumption of regularity. However, the presumption of regularity may be rebutted where there is (1) evidence that VA used an incorrect address on the mailing, or (2) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the decision. See, e.g., Davis v. Principi, 17 Vet. App. 29, 37 (2003); Clark v. Principi, 15 Vet. App. 61, 63 (2001). In this case, as there is evidence that VA used an incorrect address for the representative on the mailing and did not subsequently cure that mailing error, the Board finds that the presumption of regularity has been rebutted in this matter. Once the presumption of regularity is rebutted by the appellant, the Secretary has the burden to show that the Board [or RO] decision was mailed in the appropriate manner "or that the appellant actually received a copy of the decision." Sthele v. Principi, 19 Vet. App. 11, 19 (2004); see Fluker v. Brown, 5 Vet. App. 296, 298 (1993). In this case, VA has not provided any evidence that the rating decision in question was subsequently provided to the correct address, or that the Veteran's then-attorney actually received the rating decision. In the August 2019 VA Form 9 associated with this appeal, the Veteran's former attorney asserted that the Veteran also did not receive notice of the decision in 2016. Failure to correctly mail a VA decision in accordance with VA laws and regulations may render the decision not final. See Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (indicating that because the Veteran never received notice of the denial in accordance with 38 U.S.C. § 7105 (b)(1), the one-year period in which to file an NOD did not begin to run and therefore the decision was not final); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (noting that as the Board did not mail the decision in accordance with 38 U.S.C. § 7104 (e) and 7266 the 120-day period within which to appeal to the Veterans Court did not begin to run). In Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en banc), the Federal Circuit noted the period of time for a claimant to act after a RO decision may be tolled, leaving the case in a nonfinal status when the Secretary has failed (1) to notify a claimant of the denial of a claim, see Hauck v. Brown, 6 Vet. App. 518, 519 (1994); (2) to mail a claimant a copy of the Board decision pursuant to 38 U.S.C. § 7104 (e), see Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992); (3) to provide notice to the claimant of appellate rights, see In the Matter of the Fee Agreement of Cox, 10 Vet. App. 361, 375 (1997), vacated on other grounds, 149 F.3d 1360 (Fed. Cir. 1998); or (4) to issue the claimant a SOC, see Tablazon v. Brown, 8 Vet. App. 359, 361 (1995); Kuo v. Derwinski, 2 Vet. App. 662, 666 (1992). In light of the specific facts of this case, the Board finds that the presumption of regularity is rebutted and there is no evidence that the Veteran's then-attorney actually received the rating decision in question, or that the prior failure to correctly mail that rating decision was cured. As such, the Board is satisfied that the December 2018 Notices of Disagreement were timely, and an SOC should have been issued as to the issues appealed therein. To this extent, the appeal is granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. TDIU A TDIU is assigned when a veteran's service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). 1. Entitlement to TDIU from November 22, 2022 The Veteran seeks entitlement to a TDIU. For the reasons addressed herein, the Board will grant the claim effective November 22, 2022, but will remand the appeal for further consideration prior to that date. Effective November 22, 2022, the Veteran is service connected for right upper extremity neuropathy with a rating of 40 percent disabling, residuals of a cold weather injury affecting the right lower extremity with a rating of 30 percent, and residuals of a cold weather injury affecting the left lower extremity with a rating of 30 percent. His combined rating for that period is 70 percent with a single disability ratable at 40 percent, which meets the schedular criteria for TDIU. The Veteran asserts that he has not been employed since 1994, as a result of his leg and hand injuries. He attests to one year of college with no further education or training since that time. His most recent employment in 1994 was listed as an "assistant manager." The evidence also suggests that he is unable to work due to other nonservice-connected disabilities, to include the residuals of a cerebrovascular accident. An October 2019 VA examination report noted functional impact that the Veteran is unable to do any work due to his cerebrovascular accident and not due to his ulnar neuropathy (right upper extremity). A medical opinion offered in June 2021 found the Veteran's hand injury with deformity, numbness and weakness combined with his residuals of cold injuries that included pain, numbness, and tingling, as well as a nonservice-connected cerebrovascular accident resulted in pain all over his body and joints that locked up in cold weather. Other disabilities which prevented employment included nonservice-connected Paget's disease and left shoulder pain. The examiner determined that the service-connected disabilities caused problems with pain, numbness and tingling overall as well as problems with weakness in his right hand causing functional effects. However, his other conditions also resulted in an inability to engage in physical or sedentary work. A November 2021 opinion noted symptoms affecting grip strength, cold sensitivity, other and symptoms affecting the feet and hands. The reviewer concluded that the evidence suggested that a July 2013 cerebrovascular accident and cervical spine condition are much more a factor in the Veteran's inability to work than any of the sum of his service-connected problems. Because the 2021 opinions did not consider the Veteran's service-connected disabilities alone, a new opinion was requested. In September 2022, a VA examiner stated that the Veteran's residuals of a cold injury would limit employment in cold weather without adequate protection, thus limiting outdoor activities in the winter, but not indoor activities. His neuropathy would not significantly limit employment. In December 2022, a VA examiner, upon review of the Veteran's October 2019 examination report, noted the conclusion of that examiner and concurred with that opinion, but also found that the Veteran's ulnar neuropathy "does not help," and that he had numbness in that area. The examiner stated that the combined effects of the Veteran's service-connected disabilities severely limited the type of work he would be able to physically do. She stated that, considering a December 2001 disability determination evaluation, the Veteran would be limited to part time employment due to obvious functional issues with the right arm, which pre-existed his 2013 cerebrovascular accident. She concluded that his ability to feel, grasp, and process through the limbs affected by his cold injury would preclude him from working a full shift in physical or sedentary employment, even including a desk job. VA examination reports throughout the appeal period show symptoms such as significant decrease in grip strength affecting the Veteran's dominant hand, tingling, other nerve symptoms, pain, weakness, and deformity. Affording the Veteran the benefit of the doubt, the Board finds the December 2022 opinion to be persuasive. This opinion was given by a medical specialist in contemplation of the complete medical picture, to include past examination reports and prior medical opinions. It considers the Veteran's service-connected disabilities as separate and pre-existing his other presently nonservice-connected disabilities and provides a reasoned description of the Veteran's service-connected symptoms alone, determining that, while the nonservice-connected cerebrovascular accident does preclude gainful employment, the Veteran's service-connected symptoms alone also likely precluded substantially gainful employment. The question of whether functional limitations identified by medical examiners result in TDIU is an adjudicative determination committed to the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, from November 22, 2022, the Veteran meets the schedular criteria for TDIU, and the Board finds that the functional limitations caused by his service-connected disabilities, alone and independent of his nonservice-connected disabilities, combine to prevent him from obtaining and maintaining gainful employment. As such, entitlement to a TDIU is warranted, and the claim is granted effective November 22, 2022. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Entitlement to a TDIU prior to November 22, 2022 is addressed in the remand portion of this decision, below. REASONS FOR REMAND Inasmuch as the Board regrets further delay in the adjudication of this portion of the TDIU appeal, an additional remand is necessary to ensure proper development. 1. Entitlement to TDIU prior to November 22, 2022, is remanded. The Veteran does not presently meet the schedular criteria for a TDIU prior to November 22, 2022, even considering the various means of establishing "one disability" for purposes of 38 C.F.R. § 4.16. However, the Veteran's claim for a TDIU was addressed in the rating decision at the heart of the timeliness question addressed above. Although the RO did not find the Veteran's appeal timely, entitlement to a TDIU was nonetheless included as part and parcel of other increased rating appeals and developed subject to an earlier docket date. The NODs which the Board has now found to be timely include claims of service connection for various disabilities, to include right shoulder pain, allergies, a cerebrovascular accident, gastroesophageal reflux disease (GERD), hypertension, lumbar strain, Paget's disease, scars due to frostbite, tobacco abuse, and ulcers. Thus, to the extent that the outcome of those appeals may have a direct bearing on the Veteran's basic schedular entitlement to TDIU, particularly his claim of service connection for cerebrovascular accident, the Board must remand this appeal pending any further development of those appeals. Further, even assuming that the service connection claims appealed from the September 2016 rating decision remain denied, the Board cannot grant TDIU on an extraschedular basis in the first instance. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). As the medical evidence and positive opinion of record-which was not time-limited-amount to sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities prior to November 22, 2022, but the Veteran does not currently meet the percentage standards for schedular TDIU during that period, remand is warranted to refer his TDIU claim for extraschedular consideration in the first instance. The matter is REMANDED for the following action: To the extent that development of the issues included in the Veteran's 2018 NODs does not result in the schedular criteria for a TDIU being met prior to November 22, 2022, refer the Veteran's claim for a TDIU prior to November 22, 2022 to VA's Director of Compensation Service for extraschedular consideration in the first instance. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, 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.