Veteranclaims’s Blog

November 21, 2021

Snider v. McDonough, No. 19-6707 (Decided November 19, 2021); “reasonable possibility” standard; we hold that Ray’s “reasonable possibility” standard applies to the Board’s decision to grant or deny the referral. And because Ray applies to this case and the Board did not consider the evidence under the “reasonable possibility” standard when determining whether referral was warranted, remand is necessary for the Board to do so, especially because both parties agree that the Court cannot make this factual determination in the first instance.;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-6707
PATRICIA K. SNIDER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided November 19, 2021)
Sandra E. Booth, of Columbus, Ohio, for the appellant.
Mark D. Vichich, Appellate Attorney, with whom Richard J. Hipolit, Deputy General
Counsel; Mary Ann Flynn, Chief Counsel; and Megan C. Kral, Deputy Chief Counsel, were on
the brief, all of Washington, D.C., for the appellee.
Before PIETSCH, TOTH, AND FALVEY, Judges.
FALVEY, Judge: Patricia K. Snider, surviving spouse of deceased Army veteran Norman
J. Snider, through counsel, appeals a June 4, 2019, Board of Veterans’ Appeals decision denying a
total disability rating based on individual unemployability (TDIU). 1 In a July 16, 2021,
memorandum decision, the Court affirmed the part of the Board decision denying Mr. Snider
TDIU. On August 6, 2021, Ms. Snider timely moved for single-judge reconsideration or, in the
alternative, panel review. On October 5, 2021, the Court issued a panel order granting the motion
for panel review and withdrawing the July 16, 2021, single-judge decision.
In Ray v. Wilkie, 31 Vet.App. 58, 66 (2019), a case where the Board referred for
extraschedular TDIU consideration but later denied TDIU benefits, the Court held that the initial
extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient
evidence to substantiate a reasonable possibility that a veteran is unemployable because of serviceconnected
disabilities. We are asked to decide whether this holding applies to situations like in
Ms. Snider’s case, in which the Board denied both the referral for extraschedular TDIU
1 The Board also granted an initial 30% rating for sinusitis. This is a favorable determination that the Court
may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). Because a grant of this benefit is not an
adverse decision, the Court has no jurisdiction over this part of the Board decision. See 38 U.S.C. § 7261(a)(4).
2
consideration and TDIU benefits. Because granting or denying a referral for extraschedular TDIU
consideration addresses the same question—Is referral warranted?—we hold that Ray’s
“reasonable possibility” standard applies to the Board’s decision to grant or deny the referral.
And because Ray applies to this case and the Board did not consider the evidence under
the “reasonable possibility” standard when determining whether referral was warranted, remand is
necessary for the Board to do so, especially because both parties agree that the Court cannot make
this factual determination in the first instance.
Thus, we will set aside the part of the June 2019
Board decision denying TDIU and remand the matter for readjudication.
I. BACKGROUND
A. Facts
Mr. Snider served on active duty from November 1942 to February 1946. Record (R.) at

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-6707
PATRICIA K. SNIDER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided November 19, 2021)
Sandra E. Booth, of Columbus, Ohio, for the appellant.
Mark D. Vichich, Appellate Attorney, with whom Richard J. Hipolit, Deputy General
Counsel; Mary Ann Flynn, Chief Counsel; and Megan C. Kral, Deputy Chief Counsel, were on
the brief, all of Washington, D.C., for the appellee.
Before PIETSCH, TOTH, AND FALVEY, Judges.
FALVEY, Judge: Patricia K. Snider, surviving spouse of deceased Army veteran Norman
J. Snider, through counsel, appeals a June 4, 2019, Board of Veterans’ Appeals decision denying a
total disability rating based on individual unemployability (TDIU). 1 In a July 16, 2021,
memorandum decision, the Court affirmed the part of the Board decision denying Mr. Snider
TDIU. On August 6, 2021, Ms. Snider timely moved for single-judge reconsideration or, in the
alternative, panel review. On October 5, 2021, the Court issued a panel order granting the motion
for panel review and withdrawing the July 16, 2021, single-judge decision.
In Ray v. Wilkie, 31 Vet.App. 58, 66 (2019), a case where the Board referred for
extraschedular TDIU consideration but later denied TDIU benefits, the Court held that the initial
extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient
evidence to substantiate a reasonable possibility that a veteran is unemployable because of serviceconnected
disabilities. We are asked to decide whether this holding applies to situations like in
Ms. Snider’s case, in which the Board denied both the referral for extraschedular TDIU
1 The Board also granted an initial 30% rating for sinusitis. This is a favorable determination that the Court
may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). Because a grant of this benefit is not an
adverse decision, the Court has no jurisdiction over this part of the Board decision. See 38 U.S.C. § 7261(a)(4).
2
consideration and TDIU benefits. Because granting or denying a referral for extraschedular TDIU
consideration addresses the same question—Is referral warranted?—we hold that Ray’s
“reasonable possibility” standard applies to the Board’s decision to grant or deny the referral.
And because Ray applies to this case and the Board did not consider the evidence under
the “reasonable possibility” standard when determining whether referral was warranted, remand is
necessary for the Board to do so, especially because both parties agree that the Court cannot make
this factual determination in the first instance. Thus, we will set aside the part of the June 2019
Board decision denying TDIU and remand the matter for readjudication.
I. BACKGROUND
A. Facts
Mr. Snider served on active duty from November 1942 to February 1946. Record (R.) at 6895. VA granted him service connection for a hemorrhoidectomy with a 0% rating effective
February 1946. R. at 6851. VA later granted a 10% rating for hemorrhoids effective December
2003, R. at 5251, 5269, and then increased the rating to 20% effective July 2016, R. at 4610. VA
also granted service connection for sinusitis with a 10% rating effective March 1997. R. at 6186.
In an October 2017 statement, Mr. Snider explained that for his sinusitis he used Breathe
Right strips as well as a saline nasal spray six times a day and that if he did not do so his “sinuses
clog up and I cannot breathe.” R. at 4861. He stated that with this treatment he only had flare-ups
about four times a year, which included a sore throat, post-nasal drip, and headache pressure and
pain. Id.
In May 2019, Mr. Snider applied for TDIU. R. at 3603. The veteran noted that he completed
high school and attended business school for a year and a half but did not graduate. R. at 3604. He
stated that from 1971 to 1984 he oversaw a bowling alley bar and restaurant, working at least 40
hours a week, and he delivered flowers from 1986 to 1996, working about 20 hours a week. R. at
3604, 3606-07. He reported that his sinusitis and hemorrhoids worsened by the 1990s. R. at 3606.
He again stated that, to control his sinusitis symptoms, he used Breathe Right strips and followed
a rigorous schedule of using a saline solution six times a day for many years, requiring him to be
in a sitting position with his head tilted back and then nose blowing to clear the debris. Id. He noted
that even with this treatment, however, liquid sometimes dripped from his nose. Id. He reported
that he also regularly applied hemorrhoid ointments. R. at 3607. He stated that, based on his
3
experience in the food and beverage industry, a restaurant or bar would not hire him on a full – or
part-time basis because of his need to often use the bathroom to perform his sal ine cleansing
procedures and apply his hemorrhoid cream and because customers did not want to see his
unpleasant symptoms while eating and drinking. Id. He also stated that he did not have other skills
consistent with substantially gainful employment because, although he had delivered flowers parttime,
he would be unable to work full-time in such a job given his need for frequent bathroom
stops. Id.
B. Board Decision
In the June 2019 decision on appeal, the Board granted an initial 30% sinusitis rating but
denied TDIU. R. at 5. The Board found that referral for extraschedular TDIU consideration was
not warranted because the evidence did not support a finding that Mr. Snider’s service-connected
sinusitis and hemorrhoids rendered him unable to obtain or maintain substantially gainful
employment. R. at 12. The Board found that he did not have constant sinusitis symptoms but
experienced exacerbations or nonincapacitating episodes about four times a year and that he
regularly used saline and over-the-counter medications to prevent these exacerbations. Id. The
Board determined that, although Mr. Snider suggested that performing the saline regimen six times
a day and applying hemorrhoid cream multiple times a day would prevent him from gainful
employment, the evidence did not support this because those tasks did not take an extraordinary
amount of time each day and could be performed during non-work hours or while on breaks. Id.
The Board noted that, although some employers may not permit an employee to take multiple
breaks, the Americans with Disabilities Act (ADA) required that employers provide employees
with disabilities with reasonable accommodations that may include allowing an employee to work
a modified schedule to allow for such breaks. R. at 12-13. The Board then considered Mr. Snider’s
contention that he could not work in the food service industry due to mucous dripping from his
nose, but noted that he had experience working in other venues, such as delivering flowers, and
that his service-connected symptoms would not interfere with the tasks of a delivery person, such
as driving and carrying packages. R. at 13. The Board also determined that, because Mr. Snider
reported overseeing a bowling alley lounge and restaurant, he had some managerial skills and that,
although he may be unable to work as a manager in a restaurant or lounge, his management skills
were transferrable to other industries not involving food or extensive contact with customers. Id.
The Board concluded that, given Mr. Snider’s occupational history, he could work in occupations
4
other than those involving food service where symptoms such as dripping mucous and taking six
bathroom breaks a day would not interfere with the completion of work duties. Id.
C. Single-Judge Decision and Motion for Reconsideration or Panel Review
Previously, in the July 16, 2021, single-judge decision, the Court affirmed the part of the
Board decision denying TDIU. Relevant to the panel issue, the Court found:
[R]egardless of whether a lower, “reasonable possibility” standard or a higher, onthe-
merits standard applied, any Board error in failing to discuss that portion of Ray
when denying referral of Mr. Snider’s TDIU claim is harmless because the evidence
would not satisfy either standard. See 38 U.S.C. § 7261(b)(2) (providing that the
Court must take due account of the rule of prejudicial error). Like the Board, the
Court acknowledges Mr. Snider’s statements that performing the saline cleanse
regimen six times a day and applying hemorrhoid cream multiple times a day could
prevent him from gainful employment and that he could not work in the food
service industry, but, consistent with the Board’s appropriate inferences and
weighing of the evidence, see Bastien [v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir.
2010) (finding that “the evaluation and weighing of evidence and the drawing of
appropriate inferences from it are factual determinations committed to the
discretion of the fact-finder”), overruled on other grounds by Francway v. Wilkie,
940 F.3d 1304 (Fed. Cir. 2019)]; Owens [v. Brown, 7 Vet.App. 429, 433 (1995)
(holding that the Board is responsible for assessing the weight of evidence and that
the Court may overturn the Board’s decision only if it is clearly erroneous)], those
assertions alone did not substantiate a reasonable possibility that Mr. Snider was
unemployable due to his service-connected disabilities, see Ray, 31 Vet.App. at 66;
R. at 12-13 (the Board finding that the saline and hemorrhoid regimens did not take
a long amount of time and could be performed during non-work hours or while on
breaks, that the veteran had experience working in venues other than the food
industry, and that the skills Mr. Snider gained from overseeing a bowling alley
lounge and restaurant could be used in other industries). Thus, the Court f inds this
argument unpersuasive.
Snider v. McDonough, No. 19-6707, 2021 WL 3012326 at *5 (Vet. App. July 16, 2021).
On August 6, 2021, Ms. Snider timely moved for single-judge reconsideration or, in the
alternative, panel review, arguing that, because the “reasonable possibility” standard depends on
factual determinations, the Court may not make the initial decision about whether the evidence
was sufficient under the applicable legal standard. Appellant’s Motion (Mot.) at 6-7.
On August 12, 2021, the Court ordered the Secretary to respond to Ms. Snider’s motion
and for her to then reply to the Secretary. On September 2, 2021, the Secretary responded that he
agreed with Ms. Snider that, if the Board had erred, the Court inappropriately made a factual
finding in the first instance. Secretary’s Response (Resp.) at 1-2 (noting that the legal standard here
is a factual one and citing Pederson v. McDonald, 27 Vet.App. 276, 286 (2015)). But he maintains
5
that the Board did not err. Id. On September 16, 2021, Ms. Snider replied, reiterating that Ray’s
“reasonable possibility” standard applies and that the Board thus erred by not reviewing the
evidence under that standard. Appellant’s Sept. Reply at 1-5.
On October 5, 2021, the Court issued a panel order granting the motion for panel review
and withdrawing the July 16, 2021, single-judge decision.
II. PARTIES’ ARGUMENTS
Ms. Snider argues that the Board erred or provided inadequate reasons or bases for not
referring TDIU for extraschedular consideration because the Board did not address the veteran’s
claim under the “reasonable possibility” standard discussed in Ray, 31 Vet.App. at 66 (holding that
the initial extraschedular referral decision under § 4.16(b) addresses whether there’s sufficient
evidence to substantiate a reasonable possibility that a veteran is unemployable because of serviceconnected
disabilities). Appellant’s Brief (Br.) at 15-17, 24; Appellant’s Reply Br. at 1-6. Ms.
Snider also argues that, once the veteran submitted competent, credible evidence that his serviceconnected
disabilities interfered with his ability to obtain substantially gainful employment, the
burden of production shifted to VA and that, because the Board relied on its own conjecture rather
than evidence, its finding that it did not need to refer the TDIU claim was clearly erroneous.
Appellant’s Br. at 14-22 (asserting that there was no evidence that he could obtain or maintain
substantially gainful employment). Finally, Ms. Snider contends that VA failed to satisfy the duty
to assist because it did not provide an expert vocational opinion. Id. at 22-24.
As to whether the “reasonable possibility” standard applies, the Secretary argues that Ray
decided an issue different from the situation in this case, stating that Ray “framed the issue as ‘what
is the effect, if any, of the Board’s determination to refer a case for extraschedular consideration
under 38 C.F.R. § 4.16(b) when the Board later reviews the Director [of Compensation Services’s]
decision not to award an extraschedular TDIU rating?'” Secretary’s Br. at 8. The Secretary thus
asserts that, although Ray held that “the initial extraschedular referral decision under § 4.16(b)
addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a veteran
is unemployable by reason of his or her service-connected disabilities,” that holding must be read
in context. Id. He notes that Ray resolved the conceptual difficulty faced when the Board (which
may review the Director of Compensation Services’s decision and reach the ultimate benefits
decision), rather than the regional office (RO), refers a case. He argues that the Court in Ray
6
applied the “reasonable possibility” standard retrospectively, that is after the Board had referred
the matter. Id. at 11. But he asserts that where the Board denies a referral, such as in Ms. Snider’s
case, Ray is not on point; instead, Pederson is. Id. He contends that in Pederson, 27 Vet.App. at
287, the Board applied the standard from Thun v. Shinseki, 572 F.3d 1366, 1370 (Fed. Cir. 2009),
which held that the plain language of § 4.16(b) “requires such referrals to be made only when it
has been determined that the claimant is ‘unemployable by reason of service -connected
disabilities,'” and that the Pederson Court affirmed the Board’s referral denial. Secretary’s Br. at 7-

The Secretary also disputes Ms. Snider’s other arguments and urges the Court to affirm the
Board decision.
As to the panel matter, Ms. Snider responds that the issue in Thun was the correct
interpretation of 38 C.F.R. § 3.321(b)(1) and that it did not address the issue of the evidence
threshold required for the initial § 4.16(b) referral decision. Appellant’s Reply Br. at 5. She also
notes that Ray addressed Pederson and relied on it to reject the Secretary’s argument there that the
referral decision is not a factual finding. Id. She asserts that the holding in Ray is clear and leaves
no room for the Secretary’s current argument that the lower “reasonable possibility” evidentiary
standard applies when it favors the Secretary but does not apply when it is unfavorable to the
Secretary. Id. at 3. She states that, if the Secretary wanted to challenge Ray’s interpretation of
§ 4.16(b), he could have sought en banc review of the decision or appealed it to the U.S. Court of
Appeals for the Federal Circuit, but did not do so. Id. at 6.
III. ANALYSIS
A. Legal Landscape and Ray
TDIU will be awarded when a veteran cannot secure or follow a substantially gainful
occupation as a result of service-connected disabilities and meets certain rating requirements.
38 C.F.R. § 4.16(a) (2021). When the veteran does not meet those rating requirements, TDIU may
be granted on an extraschedular basis under 38 C.F.R. § 4.16(b), which instructs VA adjudicators
to refer to the Director of Compensation Services “all cases of veterans who are unemployable by
reason of service-connected disabilities.” 38 C.F.R. § 4.16(b); see Ray, 31 Vet.App. at 64.
In Ray, the Board referred for extraschedular TDIU consideration and, after the Director
of Compensation Services denied TDIU, the Board ultimately denied TDIU benefits. 31 Vet.App.
at 63. The veteran argued that the Board’s referral was a binding factual finding that the Board
7
impermissibly changed when it later denied benefits. Id. at 64. The Court in Ray agreed that the
referral decision was a factual finding but disagreed that the finding was binding on the Board so
that the Board could not later deny TDIU benefits. Id. at 65. The Court concluded that the referral
and benefits determinations necessarily employed different evidentiary standards and stated:
“[W]e hold that the initial extraschedular referral decision under § 4.16(b) addresses whether
there’s sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable
by reason of his or her service-connected disabilities.” Id. at 66.
As the Secretary notes, Ray addressed a slightly different scenario than the one in Ms.
Snider’s case—that is, it answered what was the effect of the Board’s earlier determination to refer
a case for extraschedular consideration under § 4.16(b) when the Board later reviews the Director
of Compensation Services’s decision not to award an extraschedular TDIU rating and ultimately
denies TDIU. 31 Vet. App. at 62. True enough. But Ray’s holding is clear—that when first deciding
whether extraschedular referral under § 4.16(b) is warranted, the evidence is considered under a
“reasonable possibility” standard—and this holding applies to all TDIU extraschedular referral
decisions. The Secretary’s attempt to distinguish an initial decision to refer from an initial decision
to deny referral is unpersuasive. Both are determinations by the Board on the same issue—that is,
whether or not referral for TDIU extraschedular consideration is warranted. And Ray determined
the standard for making that decision.
B. Thun
The Secretary argues that the Federal Circuit in Thun, 572 F.3d at 1370, held that the plain
language of § 4.16(b) requires that a referral be made only when VA has determined that the
claimant is “unemployable by reason of service-connected disabilities” and that this supports his
argument that the “reasonable possibility” standard does not apply when the Board denies TDIU
extraschedular referrals. See Secretary’s Br. at 9-12, 19; Secretary’s Resp. at 5. But in Ray, the
Court noted that the plain language of § 4.16(b) did not explain how the referral and ultimate
benefits decisions are different. 31 Vet.App. at 65. Thus, Ray considered § 4.16(b) within the
regulatory structure and scheme VA created to award extraschedular TDIU and determined that
the Board’s initial decision to refer necessarily could not be based on the same evidentiary standard
as that used to decide whether to ultimately award benefits; otherwise, the Board would be
prevented from denying TDIU when it had earlier referred a case. Id. at 64-65 (citing Atencio v.
8
O’Rourke, 30 Vet.App. 74, 82-83 (2018), for the propositions that the Court must avoid absurd
results when interpreting regulations and that regulation text cannot be taken in isolation).
The panel here, even if it could find Ray’s precedential determination incorrect, discerns
no error in its analysis of § 4.16(b) within the regulatory structure and scheme VA created to award
extraschedular TDIU. Nor do we find that applying Ray’s holding to the Board’s determination to
deny extraschedular TDIU referrals conflicts with Thun’s holding.
Thun’s plain language determination focused on referrals by the RO. 572 Fed. Cir. at 1370
(holding that VA’s interpretation of § 3.321(b)(1) (general extraschedular ratings) was supported
by § 4.16(b) because, under that regulation, a finding of unemployability is a condition precedent
to a referral by the RO and the RO thus makes a threshold inquiry before referral). The Secretary
states that § 4.16(b) appears to contemplate that the RO, rather than the Board, would be making
referrals and he then discusses the difference between the RO and the Board doing so; that is,
although the Board may review the RO’s or the Director of Compensation Services’s determination,
it cannot initially award extraschedular TDIU, but if the Director does not award extraschedular
TDIU, then the Board may determine whether to grant TDIU. Secretary’s Br. at 9. The Secretary
contends that Ray resolved this conceptual difficulty faced when the Board, rather than the RO,
referred a case and that the Court in Ray applied the “reasonable possibility” standard
retrospectively, that is after the Board had referred the matter, so that the Board’s initial referral
did not prevent it from ultimately denying benefits. Id. at 11.
We find that Ray addressed a question not considered by Thun—what the standard is for
determining whether to refer for extraschedular TDIU consideration under § 4.16(b) when that
determination is made by the Board, rather than the RO. And, although in Ray the Board
determined that a referral for extraschedular consideration was warranted and in this case the Board
determined that it was not, the Board was still faced with deciding whether to refer under § 4.16(b)
in both cases.
Thus, we find that Ray’s interpretation of § 4.16(b) and its holding—that the initial
extraschedular referral considers whether there’s sufficient evidence to substantiate a reasonable
possibility that a veteran is unemployable because of service-connected disabilities—applies
whether the Board referred the matter but ultimately denied benefits, or denied both the re ferral
and benefits in the same decision. We see no reason to apply a different standard when the Board
denies referral versus when it grants referral.
9
C. Bowling and Pederson
We find unpersuasive the Secretary’s argument that extending Ray to cases like Ms.
Snider’s would conflict with Bowling and Pederson. As Ms. Snider points out, the Court in Ray
was not only aware of Pederson, but it relied on that case to hold that a referral decision is a factual
determination. Similarly, the Court in Ray was aware of Bowling and, although it did not discuss
it like it did Pederson, the Board still cited that case. What’s more, the Secretary had a chance to
challenge Ray if he disagreed with its holding and how it fit with those line of cases, but he did not
do so.
As for the substance of those cases, Bowling reversed the Board’s determination that the
veteran’s claim was ineligible for referral because there was plausible evidence that the veteran
could not secure and follow substantially gainful employment and the Board had not relied on any
affirmative contrary evidence. The Secretary argues that this differs from reversing where the
plausible evidence reflects only that the veteran may be unemployable. Secretary’s Resp. at 6. We
acknowledge that Ray does seem to expand when the Court could reverse, or remand, the Board’s
decision to deny referral; that is, not just when the evidence shows that the veteran is unemployable
but also when it shows or could show a reasonable possibility that the veteran is unemployable.
But simply because a new evidentiary standard allows for reversal or remand where the evidence
satisfies or could satisfy that lower threshold does not mean that that case’s holding diverges from
prior cases. See also Appellant’s Sept. Reply at 4-5 (citing Webster v. Fall, 266 U.S. 507, 511
(1925), for the proposition that, because Bowling and Pederson did not address the legal standard
regarding referrals versus later entitlement to benefits, neither case was precedent on that issue and
thus does not conflict with Ray).
In Pederson, the Court found that the Board provided adequate reasons or bases for its
decision to deny referral, where the Board noted § 4.16(b) (that all veterans who cannot secure or
follow a substantially gainful occupation because of service-connected disabilities must be rated
as totally disabled), properly considered the veteran’s educational and occupational history, and
did not improperly consider his non-service-connected disabilities. The Secretary argues that the
Court in Pederson applied the standard in § 4.16(b) rather than the “reasonable possibility”
standard. But Ray had not yet introduced the “reasonable possibility” standard when Pederson was
decided, and simply because the Court affirmed on the facts in that case and the legal
10
understanding of the regulation at that time does not make applying Ray’s holding to referral
denials incompatible with past precedent.
D. A Determination Much Like McLendon
We note that, with the Court’s holding today, the Board, if it denies a referral, will be
making two determinations in its decision: (1) that a referral for extraschedular TDIU
consideration is not warranted because there is insufficient evidence to substantiate a reasonable
possibility that a veteran is unemployable because of service-connected disabilities; and (2) that
TDIU benefits are not warranted because service-connected disabilities did not render the veteran
unemployable. The Board makes similar determinations when it first concludes that a VA
examination is not warranted under McLendon v Nicholson, 20 Vet.App. 79 (2006), and then in
the same decision ultimately denies the claim. Indeed, Ray noted this similarity, stating that
McLendon supported its holding because in that case there were also different evidentiary
standards at different times in the analysis. 31 Vet.App. at 66.
We also note that McLendon held that the Board’s conclusion that speculative VA
examinations could not establish a nexus (higher standard for service connection) did not
necessarily mean that the evidence did not indicate that there may be an association between the
in-service injury and the current disability (lower standard for a VA examination). McLendon,
20 Vet.App. at 84. Similarly, because the standard for denying TDIU (unemployability) is higher
than the standard for denying the initial referral (reasonable possibility of unemployability), we
cannot say that a Board finding that the higher standard is not met necessarily means that the lower
standard would not be met for referral. Thus, in such instances, remand would likely be warranted
for the Board to first review the evidence under the lower evidentiary standard for referral.
E. VA’s Adjudications Procedures Manual (M21-1)
Before moving on to how the Court’s holding today applies to Ms. Snider’s case, we will
address the M21-1, a point of contention in the parties’ pleadings. Ray stated that VA’s own internal
guidance supported its holding, given that the “M21-1 provides that referral is appropriate, in part,
when ‘there is evidence that the Veteran may be unable to secure or follow a substantially gainful
occupation because of a service-connected disability.'” 31 Vet.App. at 66 (citing M21-1, pt. III,
subpt. iv, ch. 6, § B). As the Secretary points out, however, the part of the M21-1 that Ray cites
concerns whether the issue of extraschedular TDIU was raised, rather than whether the RO should
refer for extraschedular TDIU consideration. Secretary’s Resp. at 4. Indeed, that part of the
11
M21-1 instructs VA to “[c]onsider the issue of entitlement to an extra -schedular evaluation in
compensation claims under . . . § 4.16(b) whenever the issue is expressly stated, there is evidence
that the [v]eteran may be unable to secure or follow a substantially gainful occupation because of
[a service-connected] disability, and [TDIU] cannot be awarded on a schedular basis” and the note
to that section discusses the veteran raising extraschedular entitlement. M21-1, pt. III, subpt. iv,
ch. 6, § B.4.a. And other sections—M21-1, pt. III, subpt. iv, ch. 6, § B.4.b-c—concern referral and
state that only the Director of Compensation Services may approve extraschedular evaluations
under § 4.16(b) and that VA should “[s]ubmit compensation claims to Compensation Services for
extra-schedular consideration under . . . § 4.16(b) if . . . [a] total rating cannot be assigned solely
because the minimum schedular requirements of § 4.16 are not met and a total rating is considered
warranted.”
Although Ray cited a part of the M21-1 concerning whether extraschedular TDIU was
raised, rather than whether referral was warranted, its holding is still sound. This is so because Ray
did not rely solely on the M21-1; instead, it also considered § 4.16(b) within the regulatory
structure and scheme VA created to award extraschedular TDIU and found support in McLendon.
Additionally, there appears to be support in the M21-1 for Ray’s holding: a note to the part
concerning referrals instructs that “ROs are only required to refer claims for extra -schedular
consideration when that issue, whether or not argued by the claimant, is reasonably substantiated
by the evidence of record.” M21-1, pt. III, subpt. iv, ch. 6, § B.4.c (emphasis added); see also Ray,
31 Vet.App. at 66 (holding that the extraschedular referral decision addresses whether there is
sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable). And
finally, we again note that the Secretary had a chance to challenge Ray, including based on an
argument that the M21-1 provision on which that case relied was incorrect, but the Secretary did
not do so.
F. Application to Ms. Snider’s Case
As stated, the Court finds that Ray’s holding—that the initial extraschedular referral
decision under § 4.16(b) addresses whether there’s sufficient evidence to substantiate a reasonable
possibility that a veteran is unemployable because of service-connected disabilities—applies
whether the Board decides to refer or not to refer for extraschedular TDIU consideration because
both concern the same decision—whether referral is warranted.
12
In this case, the Board determined that referral for extraschedular TDIU consideration was
not warranted because the evidence did not support a finding that the veteran’s service-connected
sinusitis and hemorrhoids rendered him unable to obtain or maintain substantially gainful
employment. R. at 12. The Board did not consider the evidence under Ray’s “reasonable
possibility” standard when making its referral decision. Because that standard applies to all
extraschedular TDIU referral decisions, including this case, and because the Board here did not
employ that standard, remand is necessary for the Board to do so. See Tucker v. West, 11 Vet.App.
369, 374 (1998) (holding that remand is the appropriate remedy where the Board incorrectly
applied the law or did not provide an adequate statement of reasons or bases or where the record
is otherwise inadequate). As the parties agree, the Court cannot make the initial decision about
whether the evidence was sufficient under the “reasonable possibility” standard. Appellant’s Mot.
at 6-7; Secretary’s Resp. at 1-2; Appellant’s Sept. Reply at 1-5.
On remand, “the Board will ‘reexamine the evidence of record, seek any other evidence [if
the AOJ failed to satisfy its duty to assist] . . . and issue a timely, well-supported decision.'”
Andrews v. McDonough, 34 Vet.App. 151, 159 (2021) (quoting Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991) (first alteration in original)). And a remand must be performed in an expeditious
manner. 38 U.S.C. § 7112.
G. Ms. Snider’s Other Arguments
In her briefs, Ms. Snider argued that the Court should reverse the Board’s finding that the
evidence preponderated against referral for extraschedular TDIU consideration and then remand
with an order to the Board to refer the matter to the Director of Compensation Services. Appellant’s
Br. at 1, 14, 22, 26; Appellant’s Reply Br. at 13. In her motion for reconsideration and September
reply, she asserts that where the Board incorrectly applied the law, remand is the appropriate
remedy. Appellant’s Mot. at 4; Appellant’s Sept. Reply at 10 (asking the Court to remand for a new
decision on entitlement to a referral under § 4.16(b) applying the correct legal standard). Because
the Board did not apply Ray’s “reasonable possibility” standard when determining whether referral
for extraschedular TDIU consideration was warranted, remand is the proper remedy, see Tucker,
11 Vet.App. at 374, particularly because the Court cannot decide whether the evidence satisfied
that standard in the first instance, see Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013)
(explaining that reversal is appropriate only “where the Board has performed the necessary
13
factfinding and explicitly weighed the evidence”); Owens, 7 Vet.App. at 433 (holding that the
Board is responsible for assessing the weight of evidence).
Because we are remanding the TDIU matter for the Board to consider whether the evidence
warrants referral for extraschedular consideration under Ray’s “reasonable possibility” standard, it
would be premature to now address Ms. Snider’s other arguments: that once the veteran submitted
competent, credible evidence that his service-connected disabilities interfered, or there was a
reasonable possibility that they interfered, with his ability to obtain substantially gainful
employment, the burden of production shifted to VA and that, because the Board relied on its own
conjecture rather than evidence, its finding that it did not need to refer the TDIU claim was clearly
erroneous. Appellant’s Br. at 14-26 (also arguing that VA should have provided an expert
vocational opinion); Appellant’s Reply Br. at 1-13; Appellant’s Mot. at 7-13; Appellant’s Sept.
Reply at 5-10; see Best v. Principi, 15 Vet.App. 18, 19-20 (2001) (per curiam order). Thus, we
will not do so.
IV. CONCLUSION
On consideration of the above, the part of the June 4, 2019, Board decision denying TDIU
is SET ASIDE and the matter is REMANDED for readjudication consistent with this decision.
The rest of the appeal is DISMISSED.

  1. VA granted him service connection for a hemorrhoidectomy with a 0% rating effective
    February 1946. R. at 6851. VA later granted a 10% rating for hemorrhoids effective December
    2003, R. at 5251, 5269, and then increased the rating to 20% effective July 2016, R. at 4610. VA
    also granted service connection for sinusitis with a 10% rating effective March 1997. R. at 6186.
    In an October 2017 statement, Mr. Snider explained that for his sinusitis he used Breathe
    Right strips as well as a saline nasal spray six times a day and that if he did not do so his “sinuses
    clog up and I cannot breathe.” R. at 4861. He stated that with this treatment he only had flare-ups
    about four times a year, which included a sore throat, post-nasal drip, and headache pressure and
    pain. Id.
    In May 2019, Mr. Snider applied for TDIU. R. at 3603. The veteran noted that he completed
    high school and attended business school for a year and a half but did not graduate. R. at 3604. He
    stated that from 1971 to 1984 he oversaw a bowling alley bar and restaurant, working at least 40
    hours a week, and he delivered flowers from 1986 to 1996, working about 20 hours a week. R. at
    3604, 3606-07. He reported that his sinusitis and hemorrhoids worsened by the 1990s. R. at 3606.
    He again stated that, to control his sinusitis symptoms, he used Breathe Right strips and followed
    a rigorous schedule of using a saline solution six times a day for many years, requiring him to be
    in a sitting position with his head tilted back and then nose blowing to clear the debris. Id. He noted
    that even with this treatment, however, liquid sometimes dripped from his nose. Id. He reported
    that he also regularly applied hemorrhoid ointments. R. at 3607. He stated that, based on his
    3
    experience in the food and beverage industry, a restaurant or bar would not hire him on a full – or
    part-time basis because of his need to often use the bathroom to perform his sal ine cleansing
    procedures and apply his hemorrhoid cream and because customers did not want to see his
    unpleasant symptoms while eating and drinking. Id. He also stated that he did not have other skills
    consistent with substantially gainful employment because, although he had delivered flowers parttime,
    he would be unable to work full-time in such a job given his need for frequent bathroom
    stops. Id.
    B. Board Decision
    In the June 2019 decision on appeal, the Board granted an initial 30% sinusitis rating but
    denied TDIU. R. at 5. The Board found that referral for extraschedular TDIU consideration was
    not warranted because the evidence did not support a finding that Mr. Snider’s service-connected
    sinusitis and hemorrhoids rendered him unable to obtain or maintain substantially gainful
    employment. R. at 12. The Board found that he did not have constant sinusitis symptoms but
    experienced exacerbations or nonincapacitating episodes about four times a year and that he
    regularly used saline and over-the-counter medications to prevent these exacerbations. Id. The
    Board determined that, although Mr. Snider suggested that performing the saline regimen six times
    a day and applying hemorrhoid cream multiple times a day would prevent him from gainful
    employment, the evidence did not support this because those tasks did not take an extraordinary
    amount of time each day and could be performed during non-work hours or while on breaks. Id.
    The Board noted that, although some employers may not permit an employee to take multiple
    breaks, the Americans with Disabilities Act (ADA) required that employers provide employees
    with disabilities with reasonable accommodations that may include allowing an employee to work
    a modified schedule to allow for such breaks. R. at 12-13. The Board then considered Mr. Snider’s
    contention that he could not work in the food service industry due to mucous dripping from his
    nose, but noted that he had experience working in other venues, such as delivering flowers, and
    that his service-connected symptoms would not interfere with the tasks of a delivery person, such
    as driving and carrying packages. R. at 13. The Board also determined that, because Mr. Snider
    reported overseeing a bowling alley lounge and restaurant, he had some managerial skills and that,
    although he may be unable to work as a manager in a restaurant or lounge, his management skills
    were transferrable to other industries not involving food or extensive contact with customers. Id.
    The Board concluded that, given Mr. Snider’s occupational history, he could work in occupations
    4
    other than those involving food service where symptoms such as dripping mucous and taking six
    bathroom breaks a day would not interfere with the completion of work duties. Id.
    C. Single-Judge Decision and Motion for Reconsideration or Panel Review
    Previously, in the July 16, 2021, single-judge decision, the Court affirmed the part of the
    Board decision denying TDIU. Relevant to the panel issue, the Court found:
    [R]egardless of whether a lower, “reasonable possibility” standard or a higher, onthe-
    merits standard applied, any Board error in failing to discuss that portion of Ray
    when denying referral of Mr. Snider’s TDIU claim is harmless because the evidence
    would not satisfy either standard. See 38 U.S.C. § 7261(b)(2) (providing that the
    Court must take due account of the rule of prejudicial error). Like the Board, the
    Court acknowledges Mr. Snider’s statements that performing the saline cleanse
    regimen six times a day and applying hemorrhoid cream multiple times a day could
    prevent him from gainful employment and that he could not work in the food
    service industry, but, consistent with the Board’s appropriate inferences and
    weighing of the evidence, see Bastien [v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir.
    2010) (finding that “the evaluation and weighing of evidence and the drawing of
    appropriate inferences from it are factual determinations committed to the
    discretion of the fact-finder”), overruled on other grounds by Francway v. Wilkie,
    940 F.3d 1304 (Fed. Cir. 2019)]; Owens [v. Brown, 7 Vet.App. 429, 433 (1995)
    (holding that the Board is responsible for assessing the weight of evidence and that
    the Court may overturn the Board’s decision only if it is clearly erroneous)], those
    assertions alone did not substantiate a reasonable possibility that Mr. Snider was
    unemployable due to his service-connected disabilities, see Ray, 31 Vet.App. at 66;
    R. at 12-13 (the Board finding that the saline and hemorrhoid regimens did not take
    a long amount of time and could be performed during non-work hours or while on
    breaks, that the veteran had experience working in venues other than the food
    industry, and that the skills Mr. Snider gained from overseeing a bowling alley
    lounge and restaurant could be used in other industries). Thus, the Court f inds this
    argument unpersuasive.
    Snider v. McDonough, No. 19-6707, 2021 WL 3012326 at *5 (Vet. App. July 16, 2021).
    On August 6, 2021, Ms. Snider timely moved for single-judge reconsideration or, in the
    alternative, panel review, arguing that, because the “reasonable possibility” standard depends on
    factual determinations, the Court may not make the initial decision about whether the evidence
    was sufficient under the applicable legal standard. Appellant’s Motion (Mot.) at 6-7.
    On August 12, 2021, the Court ordered the Secretary to respond to Ms. Snider’s motion
    and for her to then reply to the Secretary. On September 2, 2021, the Secretary responded that he
    agreed with Ms. Snider that, if the Board had erred, the Court inappropriately made a factual
    finding in the first instance. Secretary’s Response (Resp.) at 1-2 (noting that the legal standard here
    is a factual one and citing Pederson v. McDonald, 27 Vet.App. 276, 286 (2015)). But he maintains
    5
    that the Board did not err. Id. On September 16, 2021, Ms. Snider replied, reiterating that Ray’s
    “reasonable possibility” standard applies and that the Board thus erred by not reviewing the
    evidence under that standard. Appellant’s Sept. Reply at 1-5.
    On October 5, 2021, the Court issued a panel order granting the motion for panel review
    and withdrawing the July 16, 2021, single-judge decision.
    II. PARTIES’ ARGUMENTS
    Ms. Snider argues that the Board erred or provided inadequate reasons or bases for not
    referring TDIU for extraschedular consideration because the Board did not address the veteran’s
    claim under the “reasonable possibility” standard discussed in Ray, 31 Vet.App. at 66 (holding that
    the initial extraschedular referral decision under § 4.16(b) addresses whether there’s sufficient
    evidence to substantiate a reasonable possibility that a veteran is unemployable because of serviceconnected
    disabilities). Appellant’s Brief (Br.) at 15-17, 24; Appellant’s Reply Br. at 1-6. Ms.
    Snider also argues that, once the veteran submitted competent, credible evidence that his serviceconnected
    disabilities interfered with his ability to obtain substantially gainful employment, the
    burden of production shifted to VA and that, because the Board relied on its own conjecture rather
    than evidence, its finding that it did not need to refer the TDIU claim was clearly erroneous.
    Appellant’s Br. at 14-22 (asserting that there was no evidence that he could obtain or maintain
    substantially gainful employment). Finally, Ms. Snider contends that VA failed to satisfy the duty
    to assist because it did not provide an expert vocational opinion. Id. at 22-24.
    As to whether the “reasonable possibility” standard applies, the Secretary argues that Ray
    decided an issue different from the situation in this case, stating that Ray “framed the issue as ‘what
    is the effect, if any, of the Board’s determination to refer a case for extraschedular consideration
    under 38 C.F.R. § 4.16(b) when the Board later reviews the Director [of Compensation Services’s]
    decision not to award an extraschedular TDIU rating?'” Secretary’s Br. at 8. The Secretary thus
    asserts that, although Ray held that “the initial extraschedular referral decision under § 4.16(b)
    addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a veteran
    is unemployable by reason of his or her service-connected disabilities,” that holding must be read
    in context. Id. He notes that Ray resolved the conceptual difficulty faced when the Board (which
    may review the Director of Compensation Services’s decision and reach the ultimate benefits
    decision), rather than the regional office (RO), refers a case. He argues that the Court in Ray
    6
    applied the “reasonable possibility” standard retrospectively, that is after the Board had referred
    the matter. Id. at 11. But he asserts that where the Board denies a referral, such as in Ms. Snider’s
    case, Ray is not on point; instead, Pederson is. Id. He contends that in Pederson, 27 Vet.App. at
    287, the Board applied the standard from Thun v. Shinseki, 572 F.3d 1366, 1370 (Fed. Cir. 2009),
    which held that the plain language of § 4.16(b) “requires such referrals to be made only when it
    has been determined that the claimant is ‘unemployable by reason of service -connected
    disabilities,'” and that the Pederson Court affirmed the Board’s referral denial. Secretary’s Br. at 7-
  2. The Secretary also disputes Ms. Snider’s other arguments and urges the Court to affirm the
    Board decision.
    As to the panel matter, Ms. Snider responds that the issue in Thun was the correct
    interpretation of 38 C.F.R. § 3.321(b)(1) and that it did not address the issue of the evidence
    threshold required for the initial § 4.16(b) referral decision. Appellant’s Reply Br. at 5. She also
    notes that Ray addressed Pederson and relied on it to reject the Secretary’s argument there that the
    referral decision is not a factual finding. Id. She asserts that the holding in Ray is clear and leaves
    no room for the Secretary’s current argument that the lower “reasonable possibility” evidentiary
    standard applies when it favors the Secretary but does not apply when it is unfavorable to the
    Secretary. Id. at 3. She states that, if the Secretary wanted to challenge Ray’s interpretation of
    § 4.16(b), he could have sought en banc review of the decision or appealed it to the U.S. Court of
    Appeals for the Federal Circuit, but did not do so. Id. at 6.
    III. ANALYSIS
    A. Legal Landscape and Ray
    TDIU will be awarded when a veteran cannot secure or follow a substantially gainful
    occupation as a result of service-connected disabilities and meets certain rating requirements.
    38 C.F.R. § 4.16(a) (2021). When the veteran does not meet those rating requirements, TDIU may
    be granted on an extraschedular basis under 38 C.F.R. § 4.16(b), which instructs VA adjudicators
    to refer to the Director of Compensation Services “all cases of veterans who are unemployable by
    reason of service-connected disabilities.” 38 C.F.R. § 4.16(b); see Ray, 31 Vet.App. at 64.
    In Ray, the Board referred for extraschedular TDIU consideration and, after the Director
    of Compensation Services denied TDIU, the Board ultimately denied TDIU benefits. 31 Vet.App.
    at 63. The veteran argued that the Board’s referral was a binding factual finding that the Board
    7
    impermissibly changed when it later denied benefits. Id. at 64. The Court in Ray agreed that the
    referral decision was a factual finding but disagreed that the finding was binding on the Board so
    that the Board could not later deny TDIU benefits. Id. at 65. The Court concluded that the referral
    and benefits determinations necessarily employed different evidentiary standards and stated:
    “[W]e hold that the initial extraschedular referral decision under § 4.16(b) addresses whether
    there’s sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable
    by reason of his or her service-connected disabilities.” Id. at 66.
    As the Secretary notes, Ray addressed a slightly different scenario than the one in Ms.
    Snider’s case—that is, it answered what was the effect of the Board’s earlier determination to refer
    a case for extraschedular consideration under § 4.16(b) when the Board later reviews the Director
    of Compensation Services’s decision not to award an extraschedular TDIU rating and ultimately
    denies TDIU. 31 Vet. App. at 62. True enough. But Ray’s holding is clear—that when first deciding
    whether extraschedular referral under § 4.16(b) is warranted, the evidence is considered under a
    “reasonable possibility” standard—and this holding applies to all TDIU extraschedular referral
    decisions. The Secretary’s attempt to distinguish an initial decision to refer from an initial decision
    to deny referral is unpersuasive. Both are determinations by the Board on the same issue—that is,
    whether or not referral for TDIU extraschedular consideration is warranted. And Ray determined
    the standard for making that decision.
    B. Thun
    The Secretary argues that the Federal Circuit in Thun, 572 F.3d at 1370, held that the plain
    language of § 4.16(b) requires that a referral be made only when VA has determined that the
    claimant is “unemployable by reason of service-connected disabilities” and that this supports his
    argument that the “reasonable possibility” standard does not apply when the Board denies TDIU
    extraschedular referrals. See Secretary’s Br. at 9-12, 19; Secretary’s Resp. at 5. But in Ray, the
    Court noted that the plain language of § 4.16(b) did not explain how the referral and ultimate
    benefits decisions are different. 31 Vet.App. at 65. Thus, Ray considered § 4.16(b) within the
    regulatory structure and scheme VA created to award extraschedular TDIU and determined that
    the Board’s initial decision to refer necessarily could not be based on the same evidentiary standard
    as that used to decide whether to ultimately award benefits; otherwise, the Board would be
    prevented from denying TDIU when it had earlier referred a case. Id. at 64-65 (citing Atencio v.
    8
    O’Rourke, 30 Vet.App. 74, 82-83 (2018), for the propositions that the Court must avoid absurd
    results when interpreting regulations and that regulation text cannot be taken in isolation).
    The panel here, even if it could find Ray’s precedential determination incorrect, discerns
    no error in its analysis of § 4.16(b) within the regulatory structure and scheme VA created to award
    extraschedular TDIU. Nor do we find that applying Ray’s holding to the Board’s determination to
    deny extraschedular TDIU referrals conflicts with Thun’s holding.
    Thun’s plain language determination focused on referrals by the RO. 572 Fed. Cir. at 1370
    (holding that VA’s interpretation of § 3.321(b)(1) (general extraschedular ratings) was supported
    by § 4.16(b) because, under that regulation, a finding of unemployability is a condition precedent
    to a referral by the RO and the RO thus makes a threshold inquiry before referral). The Secretary
    states that § 4.16(b) appears to contemplate that the RO, rather than the Board, would be making
    referrals and he then discusses the difference between the RO and the Board doing so; that is,
    although the Board may review the RO’s or the Director of Compensation Services’s determination,
    it cannot initially award extraschedular TDIU, but if the Director does not award extraschedular
    TDIU, then the Board may determine whether to grant TDIU. Secretary’s Br. at 9. The Secretary
    contends that Ray resolved this conceptual difficulty faced when the Board, rather than the RO,
    referred a case and that the Court in Ray applied the “reasonable possibility” standard
    retrospectively, that is after the Board had referred the matter, so that the Board’s initial referral
    did not prevent it from ultimately denying benefits. Id. at 11.
    We find that Ray addressed a question not considered by Thun—what the standard is for
    determining whether to refer for extraschedular TDIU consideration under § 4.16(b) when that
    determination is made by the Board, rather than the RO. And, although in Ray the Board
    determined that a referral for extraschedular consideration was warranted and in this case the Board
    determined that it was not, the Board was still faced with deciding whether to refer under § 4.16(b)
    in both cases.
    Thus, we find that Ray’s interpretation of § 4.16(b) and its holding—that the initial
    extraschedular referral considers whether there’s sufficient evidence to substantiate a reasonable
    possibility that a veteran is unemployable because of service-connected disabilities—applies
    whether the Board referred the matter but ultimately denied benefits, or denied both the re ferral
    and benefits in the same decision. We see no reason to apply a different standard when the Board
    denies referral versus when it grants referral.
    9
    C. Bowling and Pederson
    We find unpersuasive the Secretary’s argument that extending Ray to cases like Ms.
    Snider’s would conflict with Bowling and Pederson. As Ms. Snider points out, the Court in Ray
    was not only aware of Pederson, but it relied on that case to hold that a referral decision is a factual
    determination. Similarly, the Court in Ray was aware of Bowling and, although it did not discuss
    it like it did Pederson, the Board still cited that case. What’s more, the Secretary had a chance to
    challenge Ray if he disagreed with its holding and how it fit with those line of cases, but he did not
    do so.
    As for the substance of those cases, Bowling reversed the Board’s determination that the
    veteran’s claim was ineligible for referral because there was plausible evidence that the veteran
    could not secure and follow substantially gainful employment and the Board had not relied on any
    affirmative contrary evidence. The Secretary argues that this differs from reversing where the
    plausible evidence reflects only that the veteran may be unemployable. Secretary’s Resp. at 6. We
    acknowledge that Ray does seem to expand when the Court could reverse, or remand, the Board’s
    decision to deny referral; that is, not just when the evidence shows that the veteran is unemployable
    but also when it shows or could show a reasonable possibility that the veteran is unemployable.
    But simply because a new evidentiary standard allows for reversal or remand where the evidence
    satisfies or could satisfy that lower threshold does not mean that that case’s holding diverges from
    prior cases. See also Appellant’s Sept. Reply at 4-5 (citing Webster v. Fall, 266 U.S. 507, 511
    (1925), for the proposition that, because Bowling and Pederson did not address the legal standard
    regarding referrals versus later entitlement to benefits, neither case was precedent on that issue and
    thus does not conflict with Ray).
    In Pederson, the Court found that the Board provided adequate reasons or bases for its
    decision to deny referral, where the Board noted § 4.16(b) (that all veterans who cannot secure or
    follow a substantially gainful occupation because of service-connected disabilities must be rated
    as totally disabled), properly considered the veteran’s educational and occupational history, and
    did not improperly consider his non-service-connected disabilities. The Secretary argues that the
    Court in Pederson applied the standard in § 4.16(b) rather than the “reasonable possibility”
    standard. But Ray had not yet introduced the “reasonable possibility” standard when Pederson was
    decided, and simply because the Court affirmed on the facts in that case and the legal
    10
    understanding of the regulation at that time does not make applying Ray’s holding to referral
    denials incompatible with past precedent.
    D. A Determination Much Like McLendon
    We note that, with the Court’s holding today, the Board, if it denies a referral, will be
    making two determinations in its decision: (1) that a referral for extraschedular TDIU
    consideration is not warranted because there is insufficient evidence to substantiate a reasonable
    possibility that a veteran is unemployable because of service-connected disabilities; and (2) that
    TDIU benefits are not warranted because service-connected disabilities did not render the veteran
    unemployable. The Board makes similar determinations when it first concludes that a VA
    examination is not warranted under McLendon v Nicholson, 20 Vet.App. 79 (2006), and then in
    the same decision ultimately denies the claim. Indeed, Ray noted this similarity, stating that
    McLendon supported its holding because in that case there were also different evidentiary
    standards at different times in the analysis. 31 Vet.App. at 66.
    We also note that McLendon held that the Board’s conclusion that speculative VA
    examinations could not establish a nexus (higher standard for service connection) did not
    necessarily mean that the evidence did not indicate that there may be an association between the
    in-service injury and the current disability (lower standard for a VA examination). McLendon,
    20 Vet.App. at 84. Similarly, because the standard for denying TDIU (unemployability) is higher
    than the standard for denying the initial referral (reasonable possibility of unemployability), we
    cannot say that a Board finding that the higher standard is not met necessarily means that the lower
    standard would not be met for referral. Thus, in such instances, remand would likely be warranted
    for the Board to first review the evidence under the lower evidentiary standard for referral.
    E. VA’s Adjudications Procedures Manual (M21-1)
    Before moving on to how the Court’s holding today applies to Ms. Snider’s case, we will
    address the M21-1, a point of contention in the parties’ pleadings. Ray stated that VA’s own internal
    guidance supported its holding, given that the “M21-1 provides that referral is appropriate, in part,
    when ‘there is evidence that the Veteran may be unable to secure or follow a substantially gainful
    occupation because of a service-connected disability.'” 31 Vet.App. at 66 (citing M21-1, pt. III,
    subpt. iv, ch. 6, § B). As the Secretary points out, however, the part of the M21-1 that Ray cites
    concerns whether the issue of extraschedular TDIU was raised, rather than whether the RO should
    refer for extraschedular TDIU consideration. Secretary’s Resp. at 4. Indeed, that part of the
    11
    M21-1 instructs VA to “[c]onsider the issue of entitlement to an extra -schedular evaluation in
    compensation claims under . . . § 4.16(b) whenever the issue is expressly stated, there is evidence
    that the [v]eteran may be unable to secure or follow a substantially gainful occupation because of
    [a service-connected] disability, and [TDIU] cannot be awarded on a schedular basis” and the note
    to that section discusses the veteran raising extraschedular entitlement. M21-1, pt. III, subpt. iv,
    ch. 6, § B.4.a. And other sections—M21-1, pt. III, subpt. iv, ch. 6, § B.4.b-c—concern referral and
    state that only the Director of Compensation Services may approve extraschedular evaluations
    under § 4.16(b) and that VA should “[s]ubmit compensation claims to Compensation Services for
    extra-schedular consideration under . . . § 4.16(b) if . . . [a] total rating cannot be assigned solely
    because the minimum schedular requirements of § 4.16 are not met and a total rating is considered
    warranted.”
    Although Ray cited a part of the M21-1 concerning whether extraschedular TDIU was
    raised, rather than whether referral was warranted, its holding is still sound. This is so because Ray
    did not rely solely on the M21-1; instead, it also considered § 4.16(b) within the regulatory
    structure and scheme VA created to award extraschedular TDIU and found support in McLendon.
    Additionally, there appears to be support in the M21-1 for Ray’s holding: a note to the part
    concerning referrals instructs that “ROs are only required to refer claims for extra -schedular
    consideration when that issue, whether or not argued by the claimant, is reasonably substantiated
    by the evidence of record.” M21-1, pt. III, subpt. iv, ch. 6, § B.4.c (emphasis added); see also Ray,
    31 Vet.App. at 66 (holding that the extraschedular referral decision addresses whether there is
    sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable). And
    finally, we again note that the Secretary had a chance to challenge Ray, including based on an
    argument that the M21-1 provision on which that case relied was incorrect, but the Secretary did
    not do so.
    F. Application to Ms. Snider’s Case
    As stated, the Court finds that Ray’s holding—that the initial extraschedular referral
    decision under § 4.16(b) addresses whether there’s sufficient evidence to substantiate a reasonable
    possibility that a veteran is unemployable because of service-connected disabilities—applies
    whether the Board decides to refer or not to refer for extraschedular TDIU consideration because
    both concern the same decision—whether referral is warranted.
    12
    In this case, the Board determined that referral for extraschedular TDIU consideration was
    not warranted because the evidence did not support a finding that the veteran’s service-connected
    sinusitis and hemorrhoids rendered him unable to obtain or maintain substantially gainful
    employment. R. at 12. The Board did not consider the evidence under Ray’s “reasonable
    possibility” standard when making its referral decision. Because that standard applies to all
    extraschedular TDIU referral decisions, including this case, and because the Board here did not
    employ that standard, remand is necessary for the Board to do so. See Tucker v. West, 11 Vet.App.
    369, 374 (1998) (holding that remand is the appropriate remedy where the Board incorrectly
    applied the law or did not provide an adequate statement of reasons or bases or where the record
    is otherwise inadequate). As the parties agree, the Court cannot make the initial decision about
    whether the evidence was sufficient under the “reasonable possibility” standard. Appellant’s Mot.
    at 6-7; Secretary’s Resp. at 1-2; Appellant’s Sept. Reply at 1-5.
    On remand, “the Board will ‘reexamine the evidence of record, seek any other evidence [if
    the AOJ failed to satisfy its duty to assist] . . . and issue a timely, well-supported decision.'”
    Andrews v. McDonough, 34 Vet.App. 151, 159 (2021) (quoting Fletcher v. Derwinski, 1 Vet.App.
    394, 397 (1991) (first alteration in original)). And a remand must be performed in an expeditious
    manner. 38 U.S.C. § 7112.
    G. Ms. Snider’s Other Arguments
    In her briefs, Ms. Snider argued that the Court should reverse the Board’s finding that the
    evidence preponderated against referral for extraschedular TDIU consideration and then remand
    with an order to the Board to refer the matter to the Director of Compensation Services. Appellant’s
    Br. at 1, 14, 22, 26; Appellant’s Reply Br. at 13. In her motion for reconsideration and September
    reply, she asserts that where the Board incorrectly applied the law, remand is the appropriate
    remedy. Appellant’s Mot. at 4; Appellant’s Sept. Reply at 10 (asking the Court to remand for a new
    decision on entitlement to a referral under § 4.16(b) applying the correct legal standard). Because
    the Board did not apply Ray’s “reasonable possibility” standard when determining whether referral
    for extraschedular TDIU consideration was warranted, remand is the proper remedy, see Tucker,
    11 Vet.App. at 374, particularly because the Court cannot decide whether the evidence satisfied
    that standard in the first instance, see Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013)
    (explaining that reversal is appropriate only “where the Board has performed the necessary
    13
    factfinding and explicitly weighed the evidence”); Owens, 7 Vet.App. at 433 (holding that the
    Board is responsible for assessing the weight of evidence).
    Because we are remanding the TDIU matter for the Board to consider whether the evidence
    warrants referral for extraschedular consideration under Ray’s “reasonable possibility” standard, it
    would be premature to now address Ms. Snider’s other arguments: that once the veteran submitted
    competent, credible evidence that his service-connected disabilities interfered, or there was a
    reasonable possibility that they interfered, with his ability to obtain substantially gainful
    employment, the burden of production shifted to VA and that, because the Board relied on its own
    conjecture rather than evidence, its finding that it did not need to refer the TDIU claim was clearly
    erroneous. Appellant’s Br. at 14-26 (also arguing that VA should have provided an expert
    vocational opinion); Appellant’s Reply Br. at 1-13; Appellant’s Mot. at 7-13; Appellant’s Sept.
    Reply at 5-10; see Best v. Principi, 15 Vet.App. 18, 19-20 (2001) (per curiam order). Thus, we
    will not do so.
    IV. CONCLUSION
    On consideration of the above, the part of the June 4, 2019, Board decision denying TDIU
    is SET ASIDE and the matter is REMANDED for readjudication consistent with this decision.
    The rest of the appeal is DISMISSED.

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.