Citation Nr: 21071354 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 09-48 384 DATE: November 30, 2021 ORDER A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) from December 20, 2002, to March 27, 2007, is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's educational background includes high school and two years of college; he last worked full time in December 2002, as a clerk. 2. Multiple VA examiners and treating clinicians have opined that the Veteran was unable to work due to his psychiatric symptoms and his orthopedic symptoms. 3. Between December 20, 2002, and March 27, 2007, the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU are met effective as of December 20, 2002. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1967 to June 1969. His military decorations include the Purple Heart Medal. The Veteran died in January 2011. The appellant is his surviving spouse who has been substituted in this appeal. The appellant is unrepresented in this appeal. In April 2021, she filed a power of attorney form with VA. She did not sign the form, however. In October 2021, the Board of Veterans' Appeals (Board) mailed her a letter informing her that her apparent attempt to appoint a representative was ineffective, and providing her with options for representing herself, of executing a proper power of attorney in favor of a representative or an attorney. In the letter she was informed that if VA had not received a response from here within thirty days, we would assume she wishes to represent herself. She has not responded to the letter or communicated with VA in any way since then. We will therefore proceed on the assumption that the appellant does not wish professional representation and will represent herself in this matter. This case has a lengthy procedural history. In May 2019, the Board granted a TDIU effective in December 2002. However, in January 2021, the Board reviewed the May 2019 decision on its own motion and determined the decision had been tainted by clear and unmistakable error insofar as the grant of TDIU prior to March 2007 was improper under law. Thus, the effective date for the grant of TDIU was revised to be effective from March 27, 2007. In March 2021, the Board remanded the question of whether the Veteran may have been entitled to a TDIU on an extra-schedular basis prior to March 27, 2007, ordering that an opinion on this matter be obtained from the Director of VA's Compensation Service. This was accomplished in May 2021 and the matter has been returned to the Board for further appellate review. In written argument of April 2021, the appellant has expressed her strong views that the Veteran was indeed unemployable due primarily to his service-connected PTSD during that time frame. The purpose of this Board decision is to review the grant of TDIU effective from December 2002. As explained in the January 2021 decision, the grant had been improper because an extra-schedular opinion had not been obtained prior to awarding the grant. However, this error has now been cured with the May 2021 review and opinion by the Director of VA's Compensation Service. The Board may now properly proceed to review the Veteran's entitlement to TDIU between December 2002 and the current effective date in March 2007. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The Veteran's educational background includes high school and two years of college; he last worked full time in December 2002, as a clerk. Prior to his death, the Veteran consistently reported that he was prevented from working by his service-connected PTSD, shoulder injury, and diabetes. See, e.g., TDIU Applications dated March 2007 (Veteran prevented from working by PTSD and arm injury), November 2008 (Veteran forced to leave job due to psychiatric symptoms and pain with lifting), November 2010 (Veteran prevented from working by PTSD and diabetes). The Veteran's reports are corroborated by the opinions of VA examiners and clinicians throughout the claim period. For instance, A September 2007 VA examiner noted that the Veteran was unemployed from work as a furniture mover due to orthopedic problems and depression. In October 2007, a VA psychiatrist wrote a letter stating that the Veteran was unable to work due to his psychiatric symptoms, which prevented him from adhering to a regular schedule and from working with people and impaired his focus. The appellant has also written eloquently about the Veteran's inability to perform self-care and other functions required for normal employment during this time period. Accordingly, the Board holds that all procedural requirements have been followed, and the substantive requirements for TDIU have been met. The evidence supports a grant of TDIU from December 20, 2002, the date he last worked, and March 27, 2007, the currently assigned effective date. The appeal is granted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.