Citation Nr: 21075133 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-57 631 DATE: December 17, 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 has active service from August 1979 to January 1992. This matter is on appeal from a May 2014 rating decision. In March 2019, the Veteran presented sworn testimony before the undersigned. In March 2019, the Board increased the rating for the Veteran's left lower leg lymphedema to 20 percent and remanded the issue of entitlement to a TDIU. In December 2020, the Board denied to a higher rating for the Veteran's left lower leg lymphedema and entitlement to a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which in an August 2021 order, granted the parties' joint motion for remand (JMR), vacating the December 2020 decision to the extent that the Board denied entitlement to a TDIU and remanding the claim for compliance with the terms of the JMR. The parties to the JMR agreed that in December 2020 the Board erred when it did not provide an adequate statement of reasons or bases regarding whether remand was warranted for referral to the Director, Compensation Service (Director) for consideration of whether TDIU could be awarded on an extraschedular basis. 1. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Veteran has been awarded service connection for left lower leg lymphedema at an initial rating of 20 percent from January 30, 2006. This is the only disorder for which service connection has been awarded. In his March 2019 TDIU application, the Veteran indicates that he cannot work because of his left lower leg lymphedema. The August 2020 VA artery and vein examination indicates that the Veteran's left leg disorder impacts his ability to work, in that his left leg starts throbbing after about 10 minutes of standing, after which he must sit down. He requires help climbing stairs and "can walk no more than a half block before he has to stop and sit down due to the pain, swelling, throbbing leg, fall risk." The evidence discussed above suggests that the Veteran's left lower leg lymphedema renders him unable to obtain and maintain substantially gainful employment. However, the Veteran does not meet the percentage rating standards to be considered for individual unemployability. 38 C.F.R. § 4.16(a). Nevertheless, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Recently, in Snider v. McDonough, No. 19-6707 (Nov. 19, 2021), held that if the Board denies a referral, it must make two determinations: (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. Here, in light of Snider, the Board finds that a remand to the Director, Compensation Service, is necessary to adjudicate this appeal. The matters are REMANDED for the following action: 1. Obtain all VA treatment records from August 2020 to the present. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his left lower leg lymphedema and the impact of this condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Refer the issue to the Director, Compensation Service, for a determination in the first instance as to assignment of a TDIU on an extraschedular basis. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.