Citation Nr: 21004948 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 181002-5457 DATE: January 28, 2021 REMANDED Entitlement to an effective date earlier than January 1, 2018 for the award of the grant of a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1989 to November 1991. The Veteran selected Higher-Level Review lane when she opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. See April 2018 Ramp Election. Accordingly, the July 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). In September 2019, the Board denied entitlement to an effective date prior to January 1, 2018 for the grant of TDIU. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court vacated the Board’s September 2019 decision and adopted the parties’ Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim. Entitlement to an effective date earlier than January 1, 2018 for the award of the grant of a TDIU Pursuant to the August 2020 JMR, the Board will remand the Veteran’s claim for an earlier effective date for TDIU. The JMR specifically noted that the Veteran’s participation in a Compensated Work Therapy (CWT) program, prior to the January 1, 2018 may have reflected marginal employment or a protected work environment. The rating period on appeal starts from June 26, 2016. Although service connection is in effect for allergic rhinitis, rated at 0 percent, the Veteran has only contended that her posttraumatic stress disorder (PTSD) renders her unemployable. The record shows that the Veteran’s PTSD was rated as 50 percent disabling, effective October 21, 2014; 100 percent disabling, per 38 C.F.R. § 4.29, effective August 24, 2015; 50 percent disabling, effective October 1, 2015; 100 percent disabling, per 38 C.F.R. § 4.29, effective October 5, 2015; 50 percent disabling, effective April 1, 2016; 100 percent disabling, per 38 C.F.R. § 4.29, effective July 31, 2017; and 70 percent disabling, effective January 1, 2018. The record reflects that from October 2016 to May 2017, the Veteran was part of CWT, a VA program that assists Veterans with seeking employment, obtaining employment through VA or in general, returning to work. As noted above, entitlement to TDIU was granted, effective January 1, 2018. See July 2018 Rating Decision. During the relevant appeal period prior to January 1, 2018, the Veteran does not meet the schedular criteria for a TDIU, as her rating for PTSD is only at 50 percent prior to July 31, 2017. However, it is the established policy of VA 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). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran’s service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The rating board did not refer this case for extraschedular consideration. Based on the JMR, the Board finds that the evidence which was of record at the time of the July 2018 rating decision on appeal, suggests that the Veteran’s service-connected psychiatric disability may have rendered her unemployable prior to January 1, 2018, and that referral of this claim on an extraschedular basis to the Director of Compensation Service was warranted. One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error and for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant’s claim. 38 C.F.R. § 20.802 (a). Accordingly, a remand is warranted to request referral for extraschedular consideration of a TDIU prior to January 1, 2018 to the Director of the Compensation Service under the provisions of 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Undertake any development deemed necessary to ascertain whether the Veteran’s participation in the CWT program, prior to the January 1, 2018 may have reflected marginal employment or a protected work environment. 2. After completing #1, refer this case to the Director of Compensation Service for consideration of whether the Veteran is entitled to a TDIU on an extraschedular basis   pursuant to 38 C.F.R. § 4.16(b) for appeal period prior to January 1, 2018. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.