Citation Nr: 21006036 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-58 507 DATE: February 3, 2021 ORDER A rating in excess of 20 percent for hemiparesis of the left upper extremity is dismissed. A rating in excess of 10 percent for hemiparesis of the left lower extremity, with involvement of the anterior crural, posterior tibial, internal popliteal, anterior tibial, musculocutaneus, and external popliteal nerve, is dismissed. A rating in excess of 10 percent for hemiparesis of the left lower extremity, with involvement of the sciatic nerve, is dismissed. A compensable rating for hemiparesis of the left lower extremity, with involvement of the external cutaneous nerve, is dismissed. A compensable rating for hemiparesis of the left lower extremity, with involvement of the ilio-inguinal nerve, is dismissed. A compensable rating for hemiparesis of the left lower extremity, with involvement of the obturator nerve, is dismissed. A total disability rating based on unemployment (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. On October 15, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through her authorized representative, that a withdrawal of her appeals for a rating in excess of 20 percent for left upper extremity hemiparesis; a rating in excess of 10 percent for hemiparesis of the left lower extremity, with involvement of the anterior crural, posterior tibial, internal popliteal, anterior tibial, musculocutaneus, and external popliteal nerve; a rating in excess of 10 percent for hemiparesis of the left lower extremity, with involvement of the sciatic nerve; a compensable rating for hemiparesis of the left lower extremity, with involvement of the external cutaneous nerve; a compensable rating for hemiparesis of the left lower extremity, with involvement of the ilio-inguinal nerve; and a compensable rating for hemiparesis of the left lower extremity, with involvement of the obturator nerve, was requested. 2. The weight of the evidence supports finding that the Veteran’s service-connected disabilities has precluded her from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal for the claims seeking a rating in excess of 20 percent for left upper extremity hemiparesis; a rating in excess of 10 percent for hemiparesis of the left lower extremity, with involvement of the anterior crural, posterior tibial, internal popliteal, anterior tibial, musculocutaneus, and external popliteal nerve; a rating in excess of 10 percent for hemiparesis of the left lower extremity, with involvement of the sciatic nerve; a compensable rating for hemiparesis of the left lower extremity, with involvement of the external cutaneous nerve; a compensable rating for hemiparesis of the left lower extremity, with involvement of the ilio-inguinal nerve; and a compensable rating for hemiparesis of the left lower extremity, with involvement of the obturator nerve, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1995 to September 1998 and from July 2001 to August 2015. The Veteran requested a Board hearing in her November 2016 Form 9. However, an October 15, 2020 correspondence received by VA shows that the Veteran waived her request for a Board hearing, instead requesting that a decision is made based on the evidence of record. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by their authorized representative. 38 C.F.R. § 20.204. Here, the Veteran, through her authorized representative, has withdrawn the appeal, as to her increased ratings claims for hemiparesis of the left upper and lower extremities and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, as they pertain to her increased ratings claims, and they are dismissed. TDIU VA received the Veteran’s increased ratings claims for hemiparesis of the left upper and lower extremities on January 21, 2016. As such, the relevant period on appeal begins on January 21, 2016. Although the Veteran has withdrawn her increased ratings claims, the Board notes that she now seeks a TDIU. VA received correspondence from the Veteran, during the period on appeal, that raised the issue of whether she was unemployable due to her service-connected disabilities. See VA Form 21-8940 received April 6, 2017 and Correspondence received October 15, 2020. As such, the Board takes jurisdiction of the issue of entitlement to a TDIU because it was part and parcel to the increased ratings claims on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Total disability will be considered to exist 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. Here, the Veteran is service-connected for adjustment disorder, rated at 50 percent; asthma and bronchiectasis, rated at 30 percent; migraine headaches, rated at 30 percent; hemiparesis of the left upper extremity rated at 20 percent; a right knee disability, rated at 10 percent; hemiparesis of the left lower extremity (sciatic nerve), rated at 10 percent; hemiparesis of the left lower extremity (anterior crural nerve), rated at 10 percent; hypertension, rated as noncompensable; generalized edema, rated as noncompensable; anemia, rated as noncompensable; hemiparesis of the left lower extremity (obturator nerve), rated as noncompensable; hemiparesis of the left lower extremity (external cutaneous nerve), rated as noncompensable; and hemiparesis of the left lower extremity (ilio-inguinal nerve), rated as noncompensable. The effective date for all of the Veteran’s service-connected disabilities is August 28, 2015, the date after she separated from the military. The Veteran has a combined 90 percent rating, with at least one service-connected disability rated at 40 percent or more. As such, the Veteran has met the schedular criteria for a TDIU, for the entire period on appeal. A review of the competent evidence of record, which includes lay statements, VA examination reports, and a private vocational assessment report; when taken in total, establishes that the Veteran is unable to obtain or maintain substantially gainful employment on account of her service-connected disabilities. As an initial matter, the Board notes that during the Veteran’s active duty service, on December 8, 2013, she had a headache that would not resolve. She went to the emergency room, where she was diagnosed with a subarachnoid hemorrhage (stroke). The stroke caused her to develop the hemiparesis of the left upper and lower extremities. On February 25, 2015, the Veteran was found to be physically unfit to continue military service due to the following conditions; migraine headaches, left hemiparesis, and unspecified anxiety disorder. See Physical Evaluation Board Proceedings dated February 25, 2015. The Veteran’s military occupational specialty (MOS) was food service specialist and she performed those duties for fourteen years. See DD-214. She was found to be unable to continue doing her MOS because she was unable to lift and carry pots and pans, move equipment, or even stand for long hours. Her migraines were also found to have a major impact on her ability to perform her MOS because she could not come to work about 2-3 times a week. Id. While still on active duty service, the Veteran’s vocational impairment was assessed. See VA Form 28-1902b Counseling Record dated June 8, 2015. The examiner listed the following disabilities, which have since become service-connected; adjustment disorder, asthma, migraine headaches, a right knee disability and hemiparesis. The examiner reported that due to the Veteran’s service-connected disabilities, she was unable to continue in the occupation she was doing in the military. The examiner reported that the Veteran had not overcome the effects of her impairments and needed employment that was consistent with her limitations. Her current disabilities precluded work requiring physical tasks and her limitations interfered with her ability to obtain and maintain suitable civilian employment. The examiner concluded by finding that the Veteran met the criteria for an employment handicap because her service-connected disabilities contributed to a substantial part of the vocational impairment and the Veteran had not overcome the effects of the impairment through further education, transferable skills, or obtaining and maintaining suitable work. VA received the Veteran’s application for increased compensation based on unemployability on April 6, 2017. She reported that she has not been employed since her separation from the military. She indicated that she attended a culinary arts program, which began in 2015 during her active duty service, but was unable to continue, due to her physical and mental disabilities. The Veteran was afforded VA examinations for her psychiatric disability in December 2014 and in August 2017. The December 2014 VA examiner found that the Veteran was diagnosed with adjustment disorder and had the following symptoms; depressed mood, anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances. The August 2017 VA examiner reported that the Veteran’s symptoms of depression and anxiety limited her ability to function in an occupational environment due to trouble dealing with strangers and crowds, being prone to getting anxious, having low motivation to engage in tasks, and trouble dealing with stress, in general. The Veteran was afforded VA examinations for her migraine headaches in December 2014 and in August 2017. Both VA examiners reported that she had characteristic prostrating attacks of migraine pain, but that her migraines would not affect her ability to work. The Veteran was afforded VA examinations for her hemiparesis in December 2014, September 2016, and August 2017. The December 2014 examiner reported that the Veteran’s hemiparesis affected her ability to work because her hand weakness limited lifting and holding, while the leg weakness limited walking and climbing. The September 2016 and August 2017 VA examiner’s found that the Veteran had incomplete paralysis, due to various nerve sections, and the Veteran reported at both examinations that she had trouble picking up her young daughter and holding her for extended periods of time; however, both examiners reported that the hemiparesis would not impact the Veteran’s ability to work. The Veteran provided a private vocational assessment report from September 2019. The vocational rehabilitation consultant reviewed the Veteran’s entire claims file, as they cited to and provided a very thorough and impressive summary and discussion of the Veteran’s service treatment records (STRs) and the VA examination reports of record. After an extensive review of the Veteran’s claims file, the vocational rehabilitation consultant opined that the Veteran was unable to secure, perform, and/or maintain any significant gainful occupation, since her separation from the military in 2015. The consultant explained that a review of the medical records since December 2014 indicates that her functional limitations have not improved and have remained the same throughout the years. With consideration to the combination of both psychological and behavioral symptoms, and medical limitations, the Veteran has not been able to perform or maintain any substantially gainful occupation since her separation from the military. Here, the Board finds that the Veteran is entitled to a TDIU. The Veteran was discharged from the military due to the effects of a stroke in 2013. She developed hemiparesis due to the stroke, which caused her to be unable to perform the duties of her MOS. After developing hemiparesis, she could no longer lift and carry pots and pans, move equipment, or even stand for long hours. The Veteran has provided a private vocational assessment from a competent medical professional, who has opined that the Veteran is unable to secure and maintain substantially gainful employment, due to her service-connected disabilities. Further, during the Veteran’s active duty service, she underwent a vocational assessment by a medical officer and they found that her current disabilities precluded work requiring physical tasks and her limitations interfered with her ability to obtain and maintain suitable civilian employment. The Board notes that since the Veteran’s separation from the military, she has not been employed. The Board also notes that the vocational rehabilitation consultant reported that the Veteran’s functional limitations have not improved and have remained the same throughout the years. The Board acknowledges the VA examiners for migraines and the September 2016 and August 2017 VA examiners found that the Veteran’s respective disabilities would not impact her ability to work. However, the Board notes that the contemporaneous evidence of record contradicts these findings. For example, although reporting at the August 2017 VA examination that she had her migraines 2-3 times a week, which lasted up to half a day, and the fact that the examiner reported that she had characteristic prostrating attacks of migraine pain; the examiner nonetheless reported that her migraines would not impact her ability to work. The Board finds that the Veteran’s credible reports of her migraine episodes, in conjunction with the examiner’s finding that her migraines were prostrating, the Board finds that her migraines, do impact her ability to work. The Board notes that whether a TDIU is warranted is a legal and not medical determination, and must take into account all of the medical and lay evidence. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The September 2016 and August 2017 VA examiners for hemiparesis both opined that the condition would not impact her ability to work. However, the contemporaneous medical evidence of record does not indicate that the Veteran’s hemiparesis has improved since her separation from the military. For example, neither the September 2016 or August 2017 VA examination reports indicated that the Veteran’s condition has improved; and the Veteran reported that she had trouble picking up her daughter and carrying her for extended periods of time. Although several VA examiners have reported that the Veteran’s various service-connected disabilities would not impact her ability to work, the Board finds that the medical officer who performed the in-service vocational counseling assessment and the private vocational rehabilitation specialist great probative weight. Specifically, the private vocational rehabilitation specialist extensively reviewed the Veteran’s claims file and provided a well-reasoned explanation for their conclusion that the Veteran was unable to secure and maintain substantially gainful employment. Here, the Veteran has both mental and physical disabilities which impact her ability to work. The August 2017 psychiatric VA examiner reported that the Veteran’s symptoms of depression and anxiety limited her ability to function in an occupational environment due to trouble dealing with strangers and crowds, being prone to getting anxious, having low motivation to engage in tasks, and trouble dealing with stress, in general. The Veteran’s migraine would cause her to take time from work, when she had migraine headaches and the symptoms of hemiparesis impacts her ability to lift/carry heavy objects and to walk/climb. The Board has also taken into account the Veteran’s education, training, and experience. Her MOS was food service specialist and underwent culinary arts training during her active duty service, but could not finish due to her stroke. She was found to be medically unfit for service due to the hemiparesis and was discharged in 2015. She has reported that she has been unable to secure and maintain employment since her medical discharge from the military. She has provided a private vocational assessment, which found that she is unable to secure and maintain substantially gainful employment. Here, the evidence of record is at least in relative equipoise that the Veteran is entitled to a TDIU, as a result of her service-connected mental and physical disabilities. As such, the Board resolves reasonable doubt in favor of the Veteran. See 38 C.F.R. § 3.310 (a). Accordingly, the Veteran’s claim for a TDIU is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.