Citation Nr: 21062010 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-22 516 DATE: October 6, 2021 REMANDED Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1976 to May 1979. In a March 2020 statement, the Veteran withdrew his request for a hearing with a Veterans' Law Judge. See 38 C.F.R. § 20.704(e) The Board notes that the Veteran has appealed the rating and effective date he has received for his now service-connected acquired psychiatric disorder, which is to be processed under the rules of the Appeals Modernization Act, and will be addressed separately. Veteran's counsel seeks to have the Veteran's inferred claim moved to the AMA docket with his PTSD rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, it is unclear to the Board that Rice should apply to appeals brought to the Board pursuant to the AMA. As the Court of Appeals for Veterans Claims has recently pointed out, the AMA is an entirely new, Congressionally-mandated structure for processing appeals. It is possible, indeed likely, that many of the old precedents will not apply under the new framework. Andrews v. McDonough, 34 Vet. App. 151 (2021) (Addressing the submission of additional evidence following a Court remand). To be clear, the Board is not aware of any part of the AMA or the subsequent regulatory scheme that overrides Rice. Indeed, Rice remains applicable under the pre-AMA procedures. However, as the Court noted in Andrews, this is a "new administrative appellate structure," and the question is whether the Court's "existing precedent should be extended to this new system." Id. at 70. In this regard, one of the core purposes of the AMA was to restore the Veterans Benefits Administration's (VBA) role as primary adjudicator of claims, while reestablishing the Board as an appellate body. The logic being that veterans were served more efficiently and more accurately when a veteran was able to address evidentiary deficiencies and submit additional evidence at the Regional Office level. See 84 Fed. Reg. 138 (January 18, 2019). Moreover, the Board notes that declining to consider TDIU under Rice in this claim does not materially prejudice the Veteran. Indeed, while the issue is being remanded here, there is nothing to prevent the Veteran from opting into AMA after the issuance of a supplemental statement of the case. 1. Entitlement to TDIU. According to the evidence of record, the Veteran was denied entitlement to TDIU most recently in a July 2019 statement of the case (SOC). He submitted a timely substantive appeal, via a VA Form-9 later that month. However, since this claim was appealed, the Veteran was granted service connection for an acquired psychiatric disorder, and receives a 50 percent rating prior to October 1, 2019, and a 70 percent rating since that date. This is also the only disorder for which the Veteran is service-connected. Obviously, the grant of service connection for an acquired psychiatric disorder represents a material change in the Veteran's disability picture, and it would be prejudicial to the Veteran to adjudicate this appeal in the first instance, thereby depriving the Veteran the opportunity to present additional evidence and argument in view of his current disability picture. The matters are REMANDED for the following action: 1. The RO should ensure that all VA treatment records not currently of record are associated into the claims file. If the Veteran has any additional evidence related to his employability that is not of record, he should be afforded an appropriate period of time to submit such evidence. 2. After the above development is completed, in addition to any other development deemed necessary by the RO, the issue of entitlement to TDIU should be readjudicated and, if entitlement is denied for any portion of the appeal period, a supplemental statement of the case should be sent to the Veteran. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals