Citation Nr: 21032026 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-00 390 DATE: May 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from September 8, 2018 to November 25, 2019 is granted. FINDING OF FACT The Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment for the period from September 8, 2018 to November 25, 2019. He has been in receipt of a combined 100 percent disability rating since November 25, 2019. CONCLUSION OF LAW The criteria for entitlement to a TDIU for the period from September 8, 2018 to November 25, 2019 are met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was previously before the Board, in August 2020. At that time, among other things, the Board remanded the Veteran's claim for service connection for memory loss to obtain a VA examination and remanded the TDIU claim as inextricably intertwined. The record reflects that the VA examination was conducted, and the RO granted service connection for a mild neurocognitive disorder in an April 2021 rating decision. As this is considered a full grant of benefits, the claim for service connection for memory loss is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board otherwise concludes that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). TDIU for the period from September 8, 2018 to November 25, 2019 The Veteran contends that his service-connected asthma, diabetes, degenerative arthritis of the lumbar spine, neck injury, radiculopathy and memory loss render him unemployable. In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran is service connected for, among other disabilities, diabetes with erectile dysfunction, sleep apnea with asthma, mild neurocognitive disorder, radiculopathy of the right upper extremity, a neck injury and degenerative arthritis of the lumbar spine. The Veteran has a combined disability rating of 70 percent from October 19, 2016, including a 50 percent rating for sleep apnea. The Veteran thus meets the schedular requirements for a TDIU as of that date. The record also reflects that the Veteran was employed until September 7, 2018. As the Veteran was gainfully employed as of that date, TDIU is not warranted prior to September 8, 2018. The Board also notes that the Veteran has a combined disability rating of 100 percent, effective November 25, 2019. As a 100 percent rating is the maximum available, the claim for a TDIU after that date is moot. The record reflects that the Veteran is a high school graduate and underwent Community College training for law enforcement. Following service, the Veteran was employed as a police officer in a County Sheriff Office from 2002 until he retired in 2018. The record reflects that the Veteran stopped working because his memory problems rendered him unable to safely perform his duties. As relevant here, VA examinations for the Veteran's service-connected conditions were conducted in November 2020. The examination for the Veteran's respiratory condition noted that his sleep apnea with asthma resulted in exertional dyspnea and a chronic cough that impacted his ability to work. The examination for the Veteran's neck condition noted that he had increased neck and right arm pain with lifting objects and weakness in his right arm with numbness and tingling that impacted his ability to work. The examination for the Veteran's back noted that he had impaired bending and pain with prolonged standing and sitting that impacted his ability to work. The VA examiner issued two Individual Unemployability statements, one indicating that the Veteran was at least as likely as not able to perform sedentary work and one indicating that the Veteran was at least as likely as not unable to perform sedentary work. A February 2019 private Disability Benefits Questionnaire (DBQ) noted that the Veteran's diabetes impacted his ability to work by requiring frequent fingersticks to ensure glucose control prior to driving and the need for snacks for exertion that could cause low glucose levels. A March 2021 Individual Unemployability Statement by the VA examiner for the Veteran's service-connected mild neurological disorder noted that the Veteran had "significant difficulty remembering instructions and details of work assignments." The Veteran consistently reported that he retired because his memory problems were affecting his ability to perform his duties as a deputy sheriff. The Veteran's employer submitted a statement noting that the Veteran's memory loss affected his job performance by rendering him unable to remember valuable information, assignments and operations. The employer noted that the Veteran retired due to medical reasons that made the job dangerous and rendered the Veteran unable to perform dangerous tasks. Affording the Veteran the benefit of the doubt, the Board finds that the preponderance of evidence weighs in favor of granting a TDIU for the time period from September 8, 2018 to November 25, 2019. The lay statements from the Veteran and his employer and the opinions of the VA examiners reflect that the Veteran's service-connected disabilities impacted his ability to perform the physical and mental requirements for employment. Specifically, the Veteran's back and neck conditions impacted his ability to engage in employment activities that required prolonged sitting, standing or excessive lifting and his memory problems caused significant difficulty remembering tasks and instructions. The opinion of the November 2020 VA examiner that the Veteran could perform sedentary work is contradicted by the opinion that he was unable to perform such work as well as the subsequent opinion that the Veteran would have significant difficulty remembering tasks and instructions. The impact of the Veteran's memory on this ability to be gainfully employed is competently and credibly described by the Veteran's former employer. Based on the foregoing, the Board finds that the VA examinations and lay statements establish that the Veteran's service-connected disabilities precluded him from performing any type of gainful employment, warranting a TDIU for the period from September 8, 2018 to November 25, 2019. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.