Citation Nr: 21028545 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-01 406 DATE: May 11, 2021 ORDER A total disability rating due to individual unemployability (TDIU) effective March 7, 2012, is granted. FINDING OF FACT The Veteran's disabilities have caused unemployability for the entire period on appeal. CONCLUSION OF LAW The criteria are met for a TDIU effective March 7, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to January 1972. This appeal is from a December 2012 rating decision. In November 2019, the Board denied this appeal. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims, which granted a Joint Motion for Remand (JMR) asking the Court to vacate the denial and send the issue back to the Board for additional consideration. Specifically, the JMR indicated that the Board had not discussed the Veteran's functional diarrhea in their decision, which he had reported was one of the things that led him to retire. After review of the evidence, the Board finds that a TDIU is warranted, as discussed below. A total disability rating due to individual unemployability (TDIU) effective March 7, 2012, is granted. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). For the period under consideration, the Veteran has a 50 percent rating for one of his disabilities and a combined 80 percent rating, therefore he meets the eligibility criteria. The remaining inquiry is whether his disabilities preclude him from obtaining substantial and gainful work consistent with his previous training and experience. The record shows he worked as a sheriff's deputy for 30 years. He has three years of college, and no other training. He stopped working in 2005. The Board finds that it does. The Veteran's PTSD would preclude him from being able to perform many of the physical and mental acts required to be a police officer. The record shows his intrusive symptoms are triggered by helicopters, which are not an uncommon thing to encounter in law enforcement, and would interfere with his ability to work around practically any emergency incident. He has chronic sleep impairment and trouble concentrating, which would negatively impact his ability to complete his work. His PTSD causes him to have trouble establishing effective relationships, and make him nervous around crowds. He is also suspicious and hypervigilant, all of which would affect working with other people and the public. His hypervigilance causes him to persistently hear noises, which he must then check up on, and which have not resulted in anything. These symptoms would interfere with him being able to work with people, complete work assignments, and deal with certain types of public safety incidents. He is service-connected for CAD. During this period, it was rated as 30 percent disabling. The VA examiner found that activities such as climbing one flight of stairs would cause dizziness, shortness of breath, and chest pain. Being unable to climb one flight of stairs without experiencing heart symptoms is incompatible with being a police officer, or any other position that would require some physical stamina, which a police officer would need to investigate and apprehend criminals. Finally, his hearing loss makes it difficult for him to hear while on the phone, and his tinnitus makes it difficult for him to hear the radio. These are essential means of communication for police officers. His hearing trouble would cause him to be unable to consistently work on or use these devices, which would prevent him from doing both patrol duties and station duties. There is no indication from the record that the Veteran has training or skills that could be transferred to a position that would allow him to work alone, without using the phone, and without requiring some physicality, which would still be considered substantial and gainful. Accordingly, the Board finds that a TDIU is warranted effective from the date of his claim, March 7, 2012. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.