Citation Nr: 21020754 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-46 809 DATE: April 8, 2021 ORDER Entitlement to service connection for loss of use of the right upper extremity, to include as secondary to cerebellar hemorrhage stroke, is granted. Entitlement to service connection for loss of use of the right lower extremity, to include as secondary to cerebellar hemorrhage stroke, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to February 11, 2013, is granted. FINDINGS OF FACT 1. The Veteran’s current diagnoses of loss of use of the right upper and right lower extremities are etiologically related to his service-connected stroke disability. 2. For the period prior to February 11, 2013, the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for loss of use of the right upper extremity, as secondary to service-connected stroke, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for establishing entitlement to service connection for loss of use of the right lower extremity, as secondary to service-connected stroke, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. For the period prior to February 11, 2013, the criteria for establishing entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from May 1968 to August 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded the instant issues on appeal for further development. While the matter was in remand status, in a December 2020 rating decision, the RO granted service connection for tremors of the right upper extremity, combining it with the service-connected neuropathy of the right upper extremity to avoid pyramiding. The RO also granted service connection for numbness of the left upper extremity, combining it with the service-connected peripheral neuropathy of the left upper extremity to, again, avoid pyramiding. Finally, the RO granted entitlement to service connection for sciatic nerve peripheral neuropathy with numbness and balance impairment. Thus, these issues have been granted in full and are no longer before the Board. The remaining issues have returned to the Board for further appellate consideration. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for loss of use of the right upper extremity, to include as secondary to cerebellar hemorrhage stroke, is granted. See Argument Below 2. Entitlement to service connection for loss of use of the right lower extremity, to include as secondary to cerebellar hemorrhage stroke, is granted. The Veteran seeks entitlement to service connection for loss of use of the right upper extremity and loss of use of the right lower extremity. He asserts that his current disabilities are associated with his stroke. The Board notes that the Veteran is service connected for a stroke disability. Based on the evidence of record, the Board finds that service connection for loss of use of the right upper extremity and right lower extremity, as secondary to the service-connected stroke disability is warranted. See 38 C.F.R. § 3.310(a). As an initial matter, the Veteran has current diagnoses of loss of use of the right upper and right lower extremities. See January 2020 VA examination report and July 2020 VA addendum opinion. Thus, the first element of service connection is met. In January 2020, the Veteran underwent a VA examination for central nervous system and neuromuscular diseases. The examiner indicated that the Veteran developed loss of use of the right upper and right lower extremities as a result of his stroke. The examiner, therefore, opined that the loss of use of the right upper and right lower extremities is proximately caused by the Veteran’s service-connected stroke disability. In July 2020, a VA addendum opinion was obtained to address whether the Veteran’s loss of use of the right upper and right lower extremities was separate and distinct from his service-connected diabetic neuropathy of the bilateral upper and lower extremities. The examiner clarified that the Veteran does have upper and lower extremity loss of use that is separate and distinct from his service-connected diabetic neuropathy of the bilateral upper and lower extremities. The examiner further stated that the loss of use involves the right upper and lower extremities and is caused by the hemorrhagic stroke that occurred in July 2009. In November 2020, the Veteran underwent a VA examination for peripheral nerves conditions. The examiner noted that the Veteran’s neuropathy is not related to his stroke. The examiner further noted that the weakness in the Veteran’s right upper and lower extremities is likely a result of the damage to the motor nerves from the brain, which is separate from the sensory nerves in the periphery. The above medical evidence shows that the Veteran’s loss of use of the right upper and lower extremities is associated with his service-connected stroke disability. Thus, the Board finds that service connection is warranted for these disorders on a secondary basis. Thus, based on the foregoing, the Board finds that service connection for loss of use of the right upper extremity and loss of use of the right lower extremity, as secondary to his service-connected stroke disability, is warranted. Entitlement to a TDIU 3. Entitlement to a TDIU, prior to February 11, 2013, is granted. The Veteran contends that he is unable to work due to the symptomatology associated with his service-connected disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Currently, the Veteran’s total combined evaluation for his service-connected disabilities is 70 percent from September 4, 2009, 80 percent from February 17, 2011, and 100 percent from February 11, 2013. The Veteran is in receipt of special monthly compensation effective February 11, 2013. Thus, entitlement to a TDIU is rendered moot from February 11, 2013, forward. However, the claim for a TDIU remains on appeal for the period prior to February 11, 2013. The Veteran is service connected for the following disabilities: cognitive disorder, depressive disorder, and vascular neurocognitive disorder (rated 100 percent from February 11, 2013); coronary artery disease (rated 10 percent from February 11, 2013, and increased to 100 percent from January 29, 2015); peripheral neuropathy of the right upper extremity with tremors (rated 20 percent from February 17, 2011, and increased to 40 percent from November 24, 2020); sciatic nerve peripheral neuropathy with numbness and balance impairment (rated 40 percent from November 24, 2020); diabetes mellitus, type II (rated 20 percent from September 4, 2009); peripheral neuropathy of the left upper extremity with numbness (rated 20 percent from February 17, 2011); peripheral neuropathy of the left lower extremity (rated 30 percent from September 4, 2009, and decreased to 20 percent from March 18, 2015); peripheral neuropathy of the right lower extremity (rated 30 percent from September 4, 2009, and 20 percent from March 18, 2015); and, cerebellar hemorrhagic stroke (rated 10 percent from February 11, 2013). As such, the Veteran met the objective criteria under 38 C.F.R. § 4.16a(2) for consideration of TDIU as of September 4, 2009. The central inquiry therefore lies in whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad, 5 Vet. App. at 529. On the Veteran’s VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in February 2011, he reported that he last worked full-time in 2008. He identified his sole prior employment as a plant manager. The Veteran reported that he had completed one year of college. In a January 2020 VA examination, the examiner noted that the Veteran was a tool designer, supervisor, and division manager. He was a plant manager and vice president of a company. In an October 2017 examination for aid and attendance, the examiner noted that the Veteran had difficulty with walking due to neuropathy and stroke. The examiner further noted that the Veteran had diabetic neuropathy, which affected both legs, his balance, and the ability to walk. The examiner indicated that the Veteran could only leave the home with the assistance of another person, in part due to his physical disabilities. Resolving all doubt in the Veteran’s favor, the Board finds, based on consideration of the cumulative record, that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. The Veteran has not participated in gainful employment since 2009. The Veteran has a limited education. Furthermore, his work history since separation from service has consisted of his sole prior employment as a plant manager, which requires physical labor to carry out the necessary duties associated with such a position. The foregoing evidence of record shows that the Veteran is limited from such work. The Board finds that the symptoms described by the Veteran due to his service-connected disabilities have rendered him unemployable. Thus, based on the foregoing, the Board finds that the Veteran’s service-connected disabilities imposed significant functional impact required to maintain gainful employment. Thus, resolving reasonable doubt in the appellant’s favor, the Board finds that prior to February 11, 2013, the Veteran was unable obtain and retain substantially gainful employment due to his service-connected disabilities. Thus, for the period prior to February 11, 2013, entitlement to a TDIU is granted. S. Sorathia Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.