Citation Nr: 21012425 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 10-42 565 DATE: March 4, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disability, for the period beginning December 25, 2007, to prior to June 12, 2018, is granted, subject to regulations governing payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment beginning December 25, 2007, to prior to June 12, 2018. CONCLUSION OF LAW The criteria for an award of TDIU, for the period beginning December 25, 2007, to prior to June 12, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1966 to October 1968. The Veteran testified at a hearing before the undersigned in March 2013. A transcript of the hearing has been associated with the claims file. The case was most recently before the Board in May 2020. The Board finds there has been substantial compliance with the remand directives for the claim decided herein.  Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU due to service-connected disability, for the period prior to June 12, 2018. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and 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." Hatlestad 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 when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran reports that he stopped working December 24, 2007, and retired in January 2008. During the period on appeal after the Veteran was no longer employed, service connection was in effect for the following disabilities: coronary artery disease; right eye cataract and left eye pseudophakia associated with type II diabetes mellitus; type II diabetes mellitus; left knee limitation of extension; left knee instability; right foot callus; left knee degenerative joint disease; and kidney stones. From the date the Veteran stopped working to prior to February 1, 2010, the Veteran’s combined disability rating was 70 percent. From February 1, 2010, to prior to June 12, 2018, the combined rating was 80 percent. During both of these periods the Veteran’s type II diabetes mellitus and right eye cataract and left eye pseudophakia associated with type II diabetes mellitus disabilities had a combined evaluation of 40 percent disabling. Therefore, from April 30, 2007, to prior to June 12, 2018, the Veteran meets the schedular criteria for award of a TDIU. 38 C.F.R. § 4.16 (a). Beginning June 12, 2018, the Veteran is in receipt of a total evaluation for coronary artery disease, additional service-connected disabilities, and special monthly compensation. In records regarding an application for Social Security Administration (SSA) benefits the Veteran reported that his disability began in December 2007 and that he stopped working December 24, 2007. The Veteran reported that he could not work due to his heart problems, knees, and ankle. The Veteran has not submitted a completed VA Form 21-8940, Application for TDIU; however, SSA records include information as to his work and education history. The Veteran reported having completed college. He detailed his employment history from 1989 to December 2007 as working in law enforcement as an investigator, Field Representative investigator and Senior Special Agent with the state Department of Motor Vehicles. In performing that job, the Veteran said that over the course of each day, he would typically stand 6 hours, sit 2-3 hours and intermittently have to walk, stoop or climb. He reported that his disabilities prevented him from driving and standing or walking for very long. A physical residual functional capacity assessment noted that the Veteran could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for a total of 2 hours in an 8 hour workday with normal breaks; sit for a total of about 6 hours in an 8 hour workday; and was limited in pushing and/or pulling due to his lower extremities. He was able to occasionally climb, balance, stoop, kneel, and crouch. There were no manipulative, visual, or communicative limitations. The Veteran needed to avoid even moderate exposure to hazards, described as machinery and heights. In a statement dated in November 2013 a former supervisor noted that it was not unusual for the Veteran to be on his feet for 10 to 12 hours per day while working. He was aware of the medical condition involving the Veteran’s feet, legs, and knees. The Veteran had problems climbing up to the cab of trucks and viewing contents of the bed of the truck. The former supervisor stated that it was obvious that the Veteran was in extreme pain and discomfort. VA examinations identify that the Veteran’s knee and heart disabilities impair his ability to work. The examiners note impairments with repetitive squatting, prolonged walking, prolonged standing, kneeling, climbing, and operating foot pedals. The Veteran’s heart disability was noted to negatively impact his ability to do physically demanding work. See VA Examinations, June 2014, October 2014, January 2016, and June 2017. The VA examiner in June 2014 noted that the Veteran could sustain occupational responsibilities where these barriers are not present especially in a sedentary manner. A VA examiner noted that PTSD had minimal impact on the Veteran’s ability to work. See VA Examination, October 2014. VA examiners found that the Veteran’s kidney, eye, feet, shoulder, and skin disabilities did not have an impact on the Veteran’s ability to work. See VA Examinations, October 2014, and May 2016. Treatment records indicate that the Veteran worked around his rental properties. See VA Treatment, March 2016. The Board finds that entitlement to TDIU is warranted for the period on appeal beginning December 25, 2007, to prior to June 12, 2018. As noted above, the Veteran stopped working December 24, 2007. The Veteran’s service-connected disabilities meet the schedular criteria for TDIU for the period on appeal beginning December 25, 2007, to prior to June 12, 2018. Affording the Veteran the benefit of the doubt, his service-connected knee and heart disabilities prevent the Veteran from obtaining and maintaining substantially gainful employment due to the Veteran’s work history as an investigator and agent with the Department of Motor Vehicles and the impact of the impairment of his disabilities on his ability to stand, walk, squat, kneel, and climb on his ability to perform the work as described by the Veteran and his former supervisor. Beginning June 12, 2018, the Veteran is in receipt of an evaluation of 100 percent for coronary artery disease with cardiomyopathy. The Board notes a TDIU claim does not automatically become moot when a combined 100 percent schedular rating is assigned based on multiple service-connected disabilities because a separate award of TDIU predicated on a single disability could form the basis for an award of SMC under 38 U.S.C. § 1114 (s). However, the Board notes the Veteran is not indicating that a single service-connected disability makes him unemployable, rather his heart and knee disabilities. Moreover, the Veteran has already been granted SMC under 38 U.S.C. § 1114 (s), effective June 12, 2018. As such, entitlement to a TDIU from June 12, 2018, is considered moot, as the Veteran is already in receipt of SMC under 38 U.S.C. § 1114 (s) and a combined schedular evaluation of 100 percent, effective January 15, 2018. Therefore, entitlement to a TDIU for the period from December 25, 2007, to prior June 12, 2018, is granted, subject to regulations governing payment of monetary awards. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.