Citation Nr: 18147994 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-43 426 DATE: November 7, 2018 ORDER Entitlement to an initial rating of 20 percent, and no higher, for left hemiparesis due to cerebrovascular accident (CVA) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The residuals of left hemiparesis are manifested by subjective complaints of left side upper and lower extremity weakness and memory loss; objective findings consist of minimal left side upper and lower extremity weakness and abnormal deep tendon reflexes. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 20 percent, and no higher, for left hemiparesis have been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8514-8009 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2005 to June 2008. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher disability rating includes a claim for TDIU where a veteran asserts that a service-connected disability prevents employment. In a November 2016 statement, the Veteran raised a claim for entitlement to TDIU and the Board has characterized the issues on appeal to include a claim for entitlement to TDIU. 1. Left Hemiparesis Due to CVA A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Left hemiparesis is not specifically listed in the rating schedule. An unlisted condition may be rated under the Diagnostic Code for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). Neurological conditions, except as otherwise provided, will be rated in accordance with a schedule of ratings set out at 38 C.F.R. § 4.124a, which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consideration is to be given to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rating shall be by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. A Note to 38 C.F.R. § 4.124a provides that it is required for the minimum ratings for residuals under diagnostic codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as the bases of evaluation can be cited, in addition to the codes identifying the diagnoses. Diagnostic Code 8009 provides a disability rating of 100 percent for the six months following a cerebrovascular accident. Thereafter, residuals are to be rated under the appropriate diagnostic code, with a minimum rating of 10 percent under Diagnostic Code 8009. 38 C.F.R. § 4.124a. Given that the majority of the associated residuals were attributed to left side weakness, the AOJ utilized Diagnostic Code 8514. The Veteran is right handed, and therefore the minor ratings are applicable. Under DC 8514, a 20 percent rating is warranted for mild incomplete paralysis of the radial nerve, moderate incomplete paralysis warrants a 20 percent disability rating, and severe incomplete paralysis warrants a 40 percent disability rating. A 60 percent disability rating is warranted for complete paralysis. See 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Veteran experienced a CVA in October 2011, after which he was unable to move the left side of his body, and underwent one month of in-patient physical rehabilitation. See December 2012 Private treatment records. At the time of his discharge he had supervised eating, bed mobility, and comprehension/expression; modified independent grooming, hygiene, dressing, and social interaction; minimal assist with problem solving and memory, and had standby assist for sitting, standing, and walking. VA treatment records show that by January 2012, the Veteran had shown no neurological deficits since he left the hospital, he had a normal gait, and had strength of 4/5 in his upper left extremity, 3/5 strength in his left wrist; 4/5 strength in his left hip. His reflexes were 3+. In March 2012, the same month VA received the Veteran's claim for benefits, VA treatment records show that the Veteran had weakness on his left side and was using a cane, but had increased tone in both his left upper and lower extremities. A July 2012 VA examiner diagnosed resolving left hemiparesis due to CNS lesions of unclear etiology. The Veteran stated that he was improved since the October 2011 incident, but not fully improved. The Veteran reported muscle weakness and abnormal gait due to left lower extremity weakness. On objective examination, the Veteran had normal strength in both his upper and lower left extremities. He had increased deep tendon reflexes in his left bicep. In a summary, the examiner noted the Veteran had no upper or lower extremity muscle weakness, noting that the Veteran's motor strength on the left side was 5- out of 5. The examiner found no additional conditions due to the Veteran's CNS condition, including no mental health manifestations or cognitive impairment. The examiner commented that the Veteran had significant improvement in his left sided weakness and had very minimal neurological deficit. During an October 2016 VA examination, the Veteran reported that at the time of the incident, he could not move his left arm and to a lesser degree the left leg. In addition, he reported that he had associated slurring of speech and difficulty swallowing. He also reported that he had associated drooping of left face and memory problems. But he reported significant improvement since then, stating that the weakness in his left arm and leg and memory problems had improved but not totally resolved. He stated that he had difficulty playing sports with his children, cutting grass, washing dishes, and cleaning floors. The examiner found no signs or symptoms of conditions associated with the Veteran's CNS condition. The Veteran had normal speech, normal gait, and normal strength. Objective examination found decreased deep tendon reflexes in the Veteran's left bicep, triceps, brachioradialis, knee, and ankle. However, the Veteran did not have any left upper or lower extremity muscle weakness attributable to his CNS condition and had no mental health manifestations. In a November 2016 statement, the Veteran asserted that he had lost strength and stamina on the left side of his body, could not stand for long periods of time without feeling weak and unstable, and he could not lift more than 60 pounds. He asserted that he suffered from significant memory loss, that made him appear incompetent to his supervisors and peers and resulted in termination from his previous employment. He asserted it was therefore difficult for him to hold a steady job and provide for his family. Initially, although the Veteran's claim for benefits was received less than six months after his October 2011 CVA, there is no basis to find that the Veteran had any identifiable active vascular disease at any specific point during the pertinent appeal period, such as to warrant a 100 percent for a six-month period pursuant to 38 C.F.R. § 4.124a, DC 8009. Next, while the Veteran has made subjective reports of continuing significant memory loss, the Veteran's medical treatment providers have found no evidence of cognitive deficit since January 2012. Additionally, although the Veteran has made subjective reports that he has experienced continued weakness in his left side upper and lower extremities, both VA examiners found that the Veteran had normal strength, and the Veteran himself has reported that he is able to play both basketball and football with his children, albeit with some difficulty. Nevertheless, considering the severity of the Veteran’s reported loss of stamina, as well as the finding of abnormal reflexes in the Veteran's left upper extremity by both VA examiners, the Board finds that the Veteran has suffered from, at most, mild symptoms during the entire appeal period. As such, the Board finds that the Veteran’s symptoms most closely approximate the criteria contemplated for mild incomplete paralysis of the radial nerve for the entirety of the appeal period. The Board has also considered the Veteran's complaints of lower left extremity weakness and fatigability. However, there is no indication that the residuals of the Veteran's left hemiparesis have resulted in symptoms indicative of a moderate to severe incomplete paralysis of any of the nerves of the lower extremities, and, as such, a higher disability rating pursuant to those complaints is not warranted. See 38 C.F.R. §4.124a, Diagnostic Codes 8520 through 8530. REASONS FOR REMAND TDIU is remanded. In his November 2016 statement, the Veteran asserted that as a result of the residuals of his left hemiparesis due to CVA, he was terminated from a job, and has had difficulty holding a steady job to provide for this family. Additionally, in a December 2016 statement, the Veteran's representative asserted that the Veteran had not worked since 2006. As such, the case must be remanded so that the Veteran’s full employment history can be obtained. The matter is REMANDED for the following action: 1. Develop the Veteran’s claim for TDIU, to include obtaining a complete employment and educational history. Ensure that all notification and development action required by 38 U.S.C. §§ 5102, 5103 and 5103A are fully complied with and satisfied with respect to the issue of entitlement to TDIU. 2. Then readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel