Citation Nr: 21073502 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-19 255 DATE: December 8, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from May 1985 to December 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in July 2019. A transcript of the hearing is of record. In a January 2021 decision, the Board added the issue of entitlement to TDIU due to service-connected disabilities because the issue was raised in the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). The Board remanded the issue for further development in the January 2021 decision. Entitlement to TDIU is remanded. The Veteran is service connected for post phlebitic syndrome right femoral vein, rated as 40 percent disabling; and residuals of stress fracture right third metatarsal, rated as 10 percent disabling. The combined rating for the Veteran's service-connected disabilities has been 50 percent since October 3, 2011, the date VA received the Veteran's application for increased ratings for his service-connected disabilities. Thus, the schedular requirements for a TDIU rating are not met throughout the appeal period. See 38 C.F.R. § 4.16(a). However, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Under VA's regulations rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). By regulation this submission will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Here, a July 2013 VA examination report for his post phlebitic syndrome right femoral vein disability reflects that the functional impact of the disability is that he cannot sit, stand, or lie down due to his leg becoming edematous and painful. A February 2020 VA examination report reflects that the functional impact is that the Veteran cannot walk around due to right leg pain and swelling. In addition, in a June 2014 written statement in which entitlement to TDIU was raised by the record, the Veteran indicated he was having problems retaining employment due to the symptoms of his post phlebitic syndrome right femoral vein disability. Furthermore, the Veteran stated at his July 2019 Board hearing that his post phlebitic syndrome right femoral vein disability causes problems when he has to walk or sit for any length of time, and that it hurts to walk on the right lower extremity depending on the severity of the swelling. Upon consideration of this evidence, the Board finds that the Agency of Original Jurisdiction (AOJ) should have referred this case for extraschedular TDIU consideration. In the March 2021 supplemental statement of the case, the AOJ did not refer to the Director of Compensation the issue of entitlement to a TDIU on an extraschedular basis where the evidence showed that it met the test under Ray v. Wilkie. Thus, a remand is required for referral to the Director, Compensation Service as there is at least a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities alone. The matter is REMANDED for the following action: The AOJ should submit the Veteran's case to the Director, Compensation Service, for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16(b). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.