Citation Nr: 21041713 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-43 426 DATE: July 13, 2021 ORDER Entitlement to service connection for a memory loss disability, as due to a 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 Resolving all reasonable doubt in the Veteran's favor, his memory loss is proximately due to his service-connected CVA. CONCLUSION OF LAW The criteria for entitlement to service connection for a memory loss disability, as due to a CVA, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 2005 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision which granted service connection for residuals of a CVA and awarded a noncompensable rating. The Veteran timely appealed. In November 2018, the Board issued a decision which increased the initial rating to 20 percent based on objective findings of minimal left side upper and lower extremity weakness and abnormal deep tendon reflexes. It also added the issue of entitlement to a TDIU to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2007) and remanded it for additional evidentiary development. The Veteran appealed the November 2018 Board decision to the U.S. Court of Appeals for Veterans Claims (Court), arguing that the Board did not appropriately consider the Veteran's subjective claims of left lower extremity symptoms and memory loss as related to his CVA. In January 2020, the parties to this appeal entered into a Joint Motion for Partial Remand (JMPR) in which they moved the Court to vacate and remand the portion of the decision that declined to increase the Veteran's initial rating beyond 20 percent. In a February 2020 Order, the Court granted the parties' Joint Motion for Remand (JMR). In May 2020, the Board remanded the issues of entitlement to separate disability ratings for left lower extremity symptoms and memory loss for additional evidentiary development pursuant to the JMR. The Regional Office (RO) issued a rating decision which granted service connection and awarded a separate disability rating for the Veteran's left lower extremity symptoms in November 2020. As such, the issues of service connection for a memory loss disability as due to CVA and entitlement to a TDIU remain on appeal and have been appropriately returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a memory loss disability, as due to a CVA, is granted. The Veteran maintains entitlement to service connection for a memory loss disability as a residual of his service-connected CVA. As the Veteran only claims service connection on a secondary basis, the Board will only address that theory. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran suffered a CVA in October 2011 and is service-connected for residuals of that incident, including mild incomplete paralysis of the radial nerve with left hemiparesis due to central nervous system lesions and peripheral neuropathy of the external popliteal nerve of the left lower extremity. The medical evidence of record demonstrates that the Veteran experienced noticeable cognitive impairment immediately following the CVA. Although his symptomatology profiled as mild, treating physicians observed that they were likely to impact the Veteran's ability to perform complex activities. Further, a treating speech-language pathologist observed that the Veteran would benefit from "cognitive treatment targeting memory and executive functions." During an October 2016 VA examination, the Veteran continued to describe memory problems and the examiner noted that these problems had "improved to some degree" but had "not completely resolved." The Veteran was most recently evaluated in March 2021. Mild memory loss continued to be a reported symptom as shown on the March 2021 VA examination, although the Veteran was not diagnosed with a separate neurocognitive disability. The Board finds that the preponderance of the evidence weighs in favor of a finding that the Veteran does in fact have cognitive impairment/memory loss symptomatology that developed due to his CVA that has been both subjectively and objectively identified. Thus, the second and third elements of service connection are met. Considering the foregoing, the Board finds that service connection for memory loss as due to a CVA is warranted. See 38 C.F.R. § 3.310 (a). The Board notes that service connection is warranted, notwithstanding the fact that the Veteran has already been compensated for memory loss as a symptom of his service-connected PTSD. To this point, the Board finds that the potential for pyramiding of ratings for memory loss is a downstream concern that is relevant regarding the rating to be assigned for the now service-connected memory loss. See 38 C.F.R. § 4.14. Generally, the rule against pyramiding, which is part of the general policy in rating on the schedule for rating disabilities, comes into question when a disability rating is assigned, not when VA is determining whether service connection is warranted. The appeal is granted. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran maintains entitlement to a TDIU, as he avers that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. It is unclear whether the Veteran is still employed, and if so, whether that work constitutes marginal employment. While he was provided the VA Form 21-4192 to submit to his previous employers, he indicated that he was unable to obtain all requested information due to COVID-19 closures. In the interest of justice, the Board remands this issue to allow the Veteran another opportunity to secure this information. Additionally, the last supplemental statement of the case (SSOC) concerning entitlement to a TDIU was issued in October 2020. Since that time, additional VA examination reports and treatment records have been added to the claims file documenting the current severity of the Veteran's service-connected disabilities. This information is potentially relevant to the Veteran's TDIU claim. Further, there is no evidence that the Veteran or his representative have waived his right to RO consideration of these records. Accordingly, as the Board is already remanding the claim for a TDIU, consideration of this evidence and the issuance of an SSOC pursuant to 38 C.F.R. §§ 19.31, 19.37 may be undertaken as well. The matter is REMANDED for the following action: 1. Send a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, to each of the Veteran's former employers (as listed on the VA Form 21-8940), including AgLogic Chemical, AT&T, TEK Partners, Cracker Barrel, and Detreds. The Board notes while it did receive two responses from AgLogic, they provided conflicting information, and would like to request the completion of the form again for clarifying information. 2. Ask the Veteran to provide information concerning his earnings for the period for which he seeks a TDIU, such as IRS tax returns or Social Security income statements, for review in conjunction with his claim. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.