Citation Nr: 21074325 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 03-18 060 DATE: December 14, 2021 ORDER Entitlement to service connection for a nasal disorder is denied. Entitlement to service connection for bilateral hearing loss, to include as secondary to a nasal disorder or to head trauma is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's sinusitis and rhinitis are not etiologically related to his military service. 2. The Veteran has a congenital defect of deviated nasal septum that pre-existed service and there was no superimposed disability during active duty. 3. Bilateral hearing loss is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a nasal disorder, to include sinusitis and rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. 2. The criteria for entitlement to service connection for a deviated nasal septum are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.303, 4.9. 3. The criteria for entitlement to service connection for bilateral hearing loss, to include as secondary to a nasal disorder or to head trauma have not been met. 38 U.S.C. §§ 1112, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1959 to July 1967. The Veteran passed away in August 2015. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2003 and February 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2009, the Veteran testified before a Veterans Law Judge at a video conference hearing who is no longer employed by the Board. The Veteran was afforded a second hearing before the undersigned Veterans Law Judge in June 2015. Copies of the transcripts have been associated with the claims file. In May 2009, the Board remanded the claims for additional development. A March 2012 Board decision denied the abovementioned claims for service connection. The Veteran appealed the March 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2013, the Court issued a Memorandum Decision that vacated the portion of the Board's decision that denied service connection for the abovementioned disabilities and remanded the claims to the Board for further proceedings. In September 2014 the Board, in part, determined that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was part and parcel of an increased rating claim for headaches because it had been reasonably raised by the record, see Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the TDIU issue for further development. In June 2015, the Board remanded the appeal on the bilateral hearing loss and nasal disorder issues to the RO for additional development. In February 2021, the Board remanded the appeal on all issues captioned above to the RO for additional development. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, including organic diseases of the nervous system such as bilateral hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. Congenital or developmental defects (in contrast with congenital diseases) are not diseases or injuries, and therefore they may not be service-connected. 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). The presumption of soundness does not apply to congenital or developmental defects. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). 1. Entitlement to service connection for a nasal disorder The Appellant asserts that the Veteran's diagnosed nasal disorder was related to his active duty service. The Board notes that the Veteran had diagnoses of rhinitis and sinusitis, as well as a deviated nasal septum. There are multiple VA examinations of record for the Veteran's nasal disorder. Most recently, a September 2021 addendum opinion was associated with the record pursuant to the February 2021 Board remand. For the reasons below, the Board finds that the September 2021 addendum is the most probative evidence regarding the Veteran's diagnosed nasal disorders. Sinusitis and Rhinitis Regarding the Veteran's rhinitis and sinusitis, the September 2021 examiner provided a review of the clinical history. The examiner noted that upon induction in 1959, the Veteran was noted to have a deviated nasal septum which resulted in almost complete obstruction on the right and which was clear on the left. The examiner also reviewed service treatment records (STRs) from February 1961, January 1962, and May 1962 that indicated nasal congestion due to viral syndrome or upper respiratory infection (URI). Regarding these records, the examiner explained: Nasal congestion occurs during viral syndrome/URI with or without nasal obstruction. However it may be accentuated in someone with an anatomical defect of the nose during the time of illness. However based on my review of records, these are transient acute illnesses that are not expected to cause any permanent worsening of the septal deviation nor are they chronic conditions inherently. This is evinced by STR ENT exam 2/16/66 that noted the septal deviation causing almost obstruction of the R nostril. However it also documents that patient is "asymptomatic" and reluctant to have surgery. This solidifies the expected medical understanding that the previous viral syndrome/URI did not cause any chronic worsening, and are acute, transient conditions. This evaluation was also done towards the end of active duty. The intermittent nasal congestion causing more nasal obstruction in the setting of septal deviation is not inherently a chronic condition. It is a normal manifestation of acute transient URI's. When the nose becomes runny or congested in the setting of URI, it is "rhinitis", when sinuses become congested in URI, it is "sinusitis". Neither represents a chronic condition in the setting of a viral syndrome/ URI. The September 2021 examiner also noted a private treatment record which shows that the Veteran underwent a septoplasty in 1992. In September 2002 the Veteran's private doctor indicated that the Veteran still had a 40 percent obstruction which he suspected still caused occasional symptoms, especially with underlying URI. The September 2021 examiner opined that these statements reflected a normal manifestation of acute transient URIs, no different than the Veteran's in service URIs and did not represent a chronic condition. The September 2021 examiner also noted diagnoses of a separate condition, allergic rhinitis, which is considered chronic, in the Veteran's VA treatment records. However, the examiner noted that there is no evidence that the Veteran had allergic rhinitis during active duty service. The examiner further clarified the findings of a March 1960 x-ray which showed "low-grade sinusitis". The examiner opined as follows that this x-ray finding is not evidence of chronic sinusitis or rhinitis during activity duty service: Skull series xray 3/8/60 was done for the purpose of injury, not because of sinus issues. This makes the "low grade sinusitis" seen on L maxillary antrum an incidental finding. One must remember that sinusitis is a clinical diagnosis, and not a radiographic one. Incidental findings on imaging of sinusitis is commonplace, and not indicative of whether someone has sinusitis. "Sinusitis" found on imaging is very common. I can speak to this personally as an emergency physician doing CT scan for various issues such as headaches, blunt trauma, seizures, altered mental status, and incidental "sinusitis" shows up. In an article "Prevalence of Incidental Abnormalities on Computed Tomographic Scans of the Paranasal Sinuses" (Arch Otolaryngol Head Neck Surg. 1988;114(8):856-859.), it states " Abnormality of one or more of the paranasal sinuses was reported in 42.5% of scans done for other conditions and not for sinus problems. It concludes "The high frequency of reported radiologic abnormalities in asymptomatic patients highlights the importance of correlation with the clinical presentation when interpreting computed tomographic scans of the paranasal sinuses." Furthermore, with a deviated septum to the right, if it was going to cause another chronic problem such as chronic sinusitis, it is expected to cause specifically R sided sinusitis whereas the skull series xray noted L side. Altogether, this xray represents an incidental finding and not indicative of chronic sinusitis. In summary, I do not find any evidence of any chronic condition of sinusitis or rhinitis during activity duty, and only evidence of congestion with URI/viral syndrome which is not a chronic condition. Less likely than not sinusitis/rhinitis as a chronic condition was incurred in active duty. While there are multiple medical opinions of record, the Board finds the addendum opinion given by the September 2021 VA examiner to be the most probative evidence of whether the Veteran's rhinitis and sinusitis were the result of military service. The VA examiner based his opinion on a complete review of the claims file, to include consideration of the Veteran's in-service diagnosis and treatment for acute respiratory conditions, and previous examination reports. The examiner opined that the Veteran's rhinitis and sinusitis, both during service and since discharge, were acute in nature. The findings are consistent with the medical facts contained in the service treatment records, examinations in service, and treatment records since service. Significantly, neither the Appellant nor her representative has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for a rhinitis or sinusitis. Also, allergic rhinitis and sinusitis are not chronic diseases as contemplated by 38 C.F.R. § 3.309(a). In any event, there is no persuasive evidence that the Veteran's rhinitis, sinusitis, or allergic rhinitis manifested to a compensable degree within a year of discharge or were persistent since the Veteran's military service. The only other opinions in this matter come from the Appellant and the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. Deviated nasal septum The Veteran asserted that his deviated nasal septum caused difficulty breathing during active duty service. See February 2009 Hearing Transcript. The Veteran's March 1959 enlistment examination notes a deviated nasal septum with an almost completely obstructed right and no obstruction on the left. In the September 2021 VA addendum opinion, the examiner noted a February 1966 STR which noted that the Veteran had septal deviation since childhood with no definite history of trauma. The examiner stated that the lack of evidence of trauma suggested that the Veteran's septal deviation was congenital in nature. The examiner stated the following regarding the Veteran's STRs: Induction exam 3/12/59 prior to enlistment documents deviated nasal septum with almost completely obstructed right, while left is clear. Deviated septum is an anatomical finding and this documentation already suggests that the preexisting condition is just about as severe as it can be without causing complete obstruction. I found several STRs, that indicate nasal congestion due to viral syndrome/URI. STR 2/28/61, STR 1/5/62, STR 5/18/62. Nasal congestion occurs during viral syndrome/URI with or without nasal obstruction. However it may be accentuated in someone with a anatomical defect of the nose during the time of illness. However based on my review of records, these are transient acute illnesses that are not expected to cause any permanent worsening of the septal deviation. This is evinced by STR ENT exam 2/16/66 that noted the septal deviation causing almost obstruction of the R nostril. However it also documents that the patient is "asymptomatic" and reluctant to have surgery. This solidifies the expected medical understanding that the previous viral syndrome/URI did not cause any chronic worsening, and are acute, transient conditions. This evaluation was also done towards the end of active duty. Records do show that eventually, he underwent septoplasty in 9/1992, 25 years after active duty. The examiner again opined that the deviated septum to the right, if it were to cause another chronic problem such as chronic sinusitis, would be expected to cause right sided sinusitis. Instead, an in-service x-ray series noted that the Veteran had left sided sinusitis. The examiner reinforced his opinion that the Veteran's in-service x-ray findings are incidental and did not indicate chronic sinusitis. Ultimately, the examiner opined that: the lack of obvious trauma to the nose causing the septal deviation, suggests that vet's septal deviation is congenital. However regardless of etiology, in taking all the evidence into account, it is less likely than not the deviated septal deviation was aggravated beyond natural progression during active duty, and less likely than not that the deviated septum led to additional superimposed disease. In the case, the examiner has essentially determined that the Veteran's deviated nasal septum was a congenital defect and that there was no superimposed disease or injury during military service. The Board notes that for the purposes of entitlement to service connection, a deviated nasal septum must be the result of trauma or subject to superimposed injury or disease in service. The September 2021 examiner noted that there is no evidence of such trauma in the evidentiary record, and that the condition far preceded the Veteran's active duty service and thus was congenital in nature. Further, neither the Veteran nor the Appellant has asserted that the deviated nasal septum is due to trauma. The examiner discussed the deviated nasal septum noted at entrance, stating that it is an anatomical finding and noting that the Veteran's nasal congestion noted during service "may be accentuated in someone with an anatomical defect of the nose during the time of illness" and that the Veteran's in service transient, acute URIs and viral syndrome would not cause permanent worsening of the Veteran's septal deviation. The examiner further noted that the Veteran had almost complete obstruction of the right nostril at entrance in March 1959 and on examination in February 1966 towards end of active duty service, which further solidified the expected medical understanding that the in-service viral syndrome and URIs did not cause any chronic worsening and were acute, transient conditions. The Board finds this opinion to be highly probative, as it was authored by an examiner who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159(a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and explains its findings through citation to pertinent medical principles and the facts of the Veteran's case. The only other opinions in this matter come from the Appellant and the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. The Board notes that, ultimately, the Appellant has presented no credible persuasive evidence supporting her contention that the Veteran's sinusitis or rhinitis had its onset in service. Further, no credible evidence has been presented to support a finding that the Veteran's deviated nasal septum, determined to be a congenital defect, was traumatic in nature or resulted in a superimposed disease or injury during military service. The Board notes that the Veteran's statements regarding his deviated nasal septum consist of general statements of difficulty breathing. See February 2009 Hearing Transcript. Based on the above, the Board finds that the Veteran's deviated nasal septum is a congenital defect, and that it is less likely than not that an injury or disease was superimposed over this defect that caused additional disability. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 2. Entitlement to service connection for bilateral hearing loss, to include as secondary to a nasal disorder or to head trauma The Appellant asserts that the Veteran's bilateral hearing loss was caused by head trauma suffered during an in-service motor vehicle accident. In the alternative, the Appellant asserts that the Veteran's bilateral hearing loss was caused by his nasal disorder. As the Appellant's claim for entitlement to service connection for a nasal disorder has been denied above, service connection for bilateral hearing loss on a secondary basis may not be established. The Veteran had a diagnosis of bilateral sensorineural hearing loss. The Veteran's STRs show injuries from an April 1962 motor vehicle accident consisting of lacerations of the scalp and left knee and abrasions of both hands and face. The Veteran was rendered unconscious for an unknown period of time. Upon examination, no neurological deficits were noted and no other abnormalities were found. At a February 2009 Board hearing, the Veteran testified that his doctor told him that his hearing loss was related to in-service head trauma. The Veteran testified that his hearing problems began in 1987. On examination in March 2010, the VA audiologist stated that the opinion requested as to whether the Veteran's hearing loss was related to his in-service head injury should be given by a medical physician and not an audiologist, as it was beyond the competence of an audiologist. At a February 2015 Board hearing, the Veteran testified that he could not remember if his hearing loss started with the in-service motor vehicle accident but that he had hearing problems for a "long time." An addendum opinion from a VA medical doctor was associated with the record in September 2020. The September 2020 VA examiner noted that the STRs did not show any manifestation of hearing loss at the time of the head injury sustained during the April 1962 motor vehicle accident. The examiner explained that symptoms of head trauma would have manifested proximal to the time of said injury. Further, the examiner noted that the 2011 VA examiner diagnosed the Veteran's hearing loss as sensorineural and determined that his hearing loss was "comparable to typical hearing loss consistent with the Veteran's age". The September 2020 examiner opined that based on the onset and severity of the Veteran's hearing loss, and recognizing that the Veteran's hearing loss was gradual in nature, it was not related to his April 1962 in-service head trauma. The Board finds the September 2020 addendum opinion to be highly probative because it is based on a review of the file, consideration of the Veteran's contentions, and is supported by a rationale based on sound medical principles. The Veteran and Appellant are competent to report observable symptoms such as hearing difficulties, but they are not competent to link the Veteran's hearing loss to in-service noise exposure because the facts in this case are medically complex. The lay statements about the cause of the Veteran's hearing loss, unsupported by competent clinical evidence, are insufficient to place the evidence near or in relative equipoise on the nexus question presented in this case. There is no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed hearing loss manifested to a compensable degree within a year of his separation from service or that it had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. The claim for entitlement to service connection for bilateral hearing loss is denied. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Appellant contends that the Veteran was entitled to a TDIU as a result of his service-connected disabilities. A TDIU claim, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a September 2014 decision, the Board found that the issue of entitlement to a TDIU was raised by the record as part and parcel of an increased rating claim for service-connected headaches. Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies); provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a Veteran fails to meet the percentage standards set forth in § 4.16(a) but is unemployable by reason of service-connected disabilities, the claim may be submitted for extraschedular consideration. 38 C.F.R. § 4.16 (b). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of employment and the reason for termination. 38 C.F.R. § 4.16. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran's service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). The phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 (b) has both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the veteran is able to "secure or follow" gainful employment. Id. In determining whether a veteran can secure or follow a substantially gainful occupation, the Board should consider the veteran's history, education, skill, and training; whether he or she "has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required" to work in a substantially gainful occupation, and "whether the veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id. During the period on appeal, service connection was in effect for the following disabilities: post concussion headache with a 50 percent rating assigned from October 2002; scar, left forehead with a 10 percent rating from October 2001; tinnitus with a 10 percent rating from November 2002; and scar, lateral aspect of left knee with a noncompensable rating assigned from March 2007. The schedular criteria for TDIU have not been met. 38 C.F.R. § 4.16 (a) (2018). Accordingly, the Veteran does not meet the eligibility requirement for a TDIU on a schedular basis. If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, but evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board must consider whether to remand a case for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU. Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An affidavit from a vocational rehabilitation counselor, S.M., was associated with the record in March 2015. Upon a partial review of the Veteran's claims file, S.M. noted that a July 2011 VA examiner noted daily headaches of moderate stabbing type pain to the left parietal, frontal and the back of the eyes that lasted approximately 30 minutes and occurred four to ten times per day. S.M noted symptoms of photophobia and occasional nausea and vomiting. S.M. further observed that an April 2012 VA examiner determined that the Veteran's headaches were more closely analogous in severity to migraines. Specifically, S.M. noted that the April 2012 VA examiner determined that the Veteran experienced characteristic prostrating attacks which occurred on average once a month over the last several months. S.M. noted the Veteran's statements that he experienced whole head pain with tenderness over the left side of his head and pain in the left eye; constant head pain; worsening pain with sun exposure; intermittent daily headaches; and that he was in bed three to four hours per day since 1989. S.M. also noted that the Veteran was unable to take medication for his headaches due to heart and kidney problems. Given the Veteran's 50 percent disability rating for headaches, S.M. determined that the Veteran would be precluded from all work. Applying Social Security standards, S.M. also found that the Veteran's need to take frequent, unpredictable breaks and to miss more than one day of work per month would render him unable to maintain "concentration, persistence, and pace through an eight hour day and 40 hour work week without significant interference from physical or emotion symptoms; to maintain attendance and miss nor more than one day of work per month; and not to take an unreasonable number of length of breaks." At a March 2010 VA examination, the Veteran reported that he was disabled due to his heart condition. The examiner noted that his non-service connected condition of cardiomyopathy significantly impaired any employment. The Veteran filed for Social Security Administration (SSA) disability benefits in October 1988. The SSA found that the Veteran was unemployable due to coronary artery disease and ischemic cardiomyopathy. The Board is cognizant of a new decision rendered by the United States Court of Appeals for Veterans Claims (CAVC) in Snider v. McDonough, No. 19-6707 (November 19, 2021). The Court found that pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), entitlement to an extraschedular TDIU must be referred to the Director of Compensation Service for an initial determination where there is sufficient evidence to substantiate a "reasonable possibility" that a veteran is unemployable due to service-connected disabilities. The Court found that when denying an extraschedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extraschedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. The Appellant did not provide the requested VA Form 21-8940. Thus, the Veteran's file lacks complete information about the Veteran's educational history and employment history. The Board will afford the Appellant another opportunity to provide this information. Failure to submit the completed form may result in denial of the claim. The matters are REMANDED for the following action: 1. Ask the Appellant to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) for the period of October 2002 to August 2015. 2. Thereafter, refer the case to the Director of Compensation Service for extra-schedular consideration. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, Associate 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.