Snider v. McDonough, Case Number 19-6707, was decided November 19, 2021 and involves an extension of Ray v. Wilkie, which addresses referral for extraschedular TDIU consideration.
The court summarized the result as stating:
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 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.
Id. at *1-2.
The veteran sought TDIU based on service connected disabilities of sinusitis and hemorrhoids. The Board found referral for extraschedular TDIU consideration was not warranted. The Court noted “[t]he 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. at *3-4.
Before the Court, the veteran argued “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.” Id. at *5.
The Court concluded by finding:
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.
Id. at *12.
This seems like particularly unnecessary decision and can only wonder why the VA defended. It is barely an expansion of Ray and its analysis regarding referral for extraschedular consideration.
Decision by Judge Falvey and joined by Judges Pietsch and Toth.
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