[00:00:00] Speaker 02:
Alright.

[00:00:05] Speaker 02:
The United States Court of Appeals of the Federal Circuit is now open and in session.

[00:00:22] Speaker 02:
God save the United States and the honorable court.

[00:00:25] Speaker 01:
Thank you.

[00:00:26] Speaker 01:
Peace, Jason.

[00:00:30] Speaker 01:
This case involves the proper interpretation of 38 CFR section 4.16.

[00:00:54] Speaker 04:
That regulation requires two key inquiries in adjudicating entitlement to TDIU.

[00:01:01] Speaker 04:
First, VA must look to whether a veteran is physically capable of working, and second, it must determine whether the veteran is vocationally able to secure and follow a substantially gainful occupation.

[00:01:15] Speaker 04:
The Veterans Court misinterpreted Section 4.16 and excluded the second part of the legally required analysis.

[00:01:23] Speaker 04:
The veteran's court's decision should be vacated and the appeal remanded with an instruction to ensure that VA properly interpret the regulation.

[00:01:35] Speaker 04:
This case is not, as was framed in the secretary's pleading, a case of prejudicial error.

[00:01:44] Speaker 04:
This is a case that involves the proper legal test and the legal test is spelled out and indeed is not even disputed by my opposing counsel in Section 4.16 and throughout the case law cited in the brief.

[00:01:59] Speaker 05:
If there are no questions we urge, can you point me where in the Veterans Court opinion Senate recites any proper legal tests?

[00:02:07] Speaker 04:
It recites the correct test.

[00:02:09] Speaker 04:
And I think that the relevant part of the court's decision is the Joint Appendix IV, cited throughout the brief.

[00:02:16] Speaker 04:
And it cites the correct test.

[00:02:19] Speaker 04:
But then it does not follow it.

[00:02:22] Speaker 05:
Well, so even if we take that statement as it were, it's a misapplication of Tufts, an application of law to fact that's not within our jurisdiction.

[00:02:34] Speaker 04:
It is not.

[00:02:35] Speaker 04:
It is not because the regulations plain language demands it.

[00:02:39] Speaker 04:
And in fact, the secretary even says that words must and shall permeate throughout the case law, throughout the pleadings, and throughout the regulation.

[00:02:48] Speaker 04:
It's not a matter of an application of the test.

[00:02:51] Speaker 04:
They didn't even

[00:02:52] Speaker 05:
brought they didn't even upload they didn't do anything with it and i think it's good he's been application we'll get this court abandoned ue context uh... it's down in martin case that the proper application of a test is illegal it is a little bit i think i understand what your argument is and where it's coming from but i think i don't have the appendix i just have the board's opinion in front of me but you're talking about the last paragraph of section a and the veterans court opinion aren't you

[00:03:20] Speaker 05:
sentence, you agree that properly cites the test.

[00:03:24] Speaker 05:
It does.

[00:03:26] Speaker 05:
And then the second sentence, the court notes that the board failed to do its full job and then says, but it's harmless.

[00:03:36] Speaker 05:
That's correct.

[00:03:37] Speaker 05:
And then your argument, I suspect, is with the third sentence, where you think that the way they wrote that sentence suggests that they're not finding the proper test.

[00:03:46] Speaker 04:
They're not, because they only look at the medical evidence.

[00:03:48] Speaker 04:
They didn't.

[00:03:50] Speaker 05:
OK.

[00:03:51] Speaker 05:
I just want to make sure that that's where you are.

[00:03:52] Speaker 05:
That seems to be, you know, arguable for the first part of that sentence.

[00:03:56] Speaker 05:
But then the second part of that sentence that suggests that there's nothing else in the record that would contradict the finding that he's not capable of sedentary work.

[00:04:05] Speaker 05:
So I understand your point.

[00:04:08] Speaker 05:
I mean, if the board and the Veterans Court refuse to look at vocational stuff, that would probably be the wrong task.

[00:04:16] Speaker 05:
But are we talking about essentially a quibble with how this opinion was written?

[00:04:20] Speaker 05:
Because it seems to me that it's

[00:04:23] Speaker 05:
of reading this opinion to say there's just nothing in the record to suggest that he has vocational problems that would prevent him from getting sedentary work.

[00:04:35] Speaker 04:
It's not equivalent to how it's written, Your Honor.

[00:04:37] Speaker 05:
What does that second phrase mean?

[00:04:40] Speaker 05:
That you haven't offered any evidence to contradict the finding that he's capable of sedentary work?

[00:04:46] Speaker 04:
My response to that would be that, first of all, the court is getting into a fact-finding situation there, which is improper.

[00:04:53] Speaker 04:
And the second part is, that is not an entirely correct statement.

[00:04:56] Speaker 05:
Well, can you tell me, because I looked at the record, and it seems to me that there's not a whole lot in the record about the veterans' capacity to do sedentary work.

[00:05:06] Speaker 05:
The only things I saw that were,

[00:05:08] Speaker 05:
relevant at all was that he used to work at Walmart as a personal shopper and a greeter, and he hasn't been able to do that.

[00:05:15] Speaker 05:
It doesn't say anything about his past work history for the 50 years or so before.

[00:05:20] Speaker 05:
I mean, the cases where we found this really relevant is where somebody has been a farmer their whole life and haven't been trained to do any kind of office work, which I know very well.

[00:05:31] Speaker 05:
My father was a farmer his whole life, and if you tried to make him go work at a computer, he couldn't do it.

[00:05:36] Speaker 05:
But that's not in this record, is it?

[00:05:39] Speaker 04:
Throughout the record, something that specific, Your Honor, is not in the record.

[00:05:44] Speaker 04:
There are two problems, though.

[00:05:46] Speaker 04:
First, it's the VA's responsibility to develop this case.

[00:05:50] Speaker 04:
It is in the regulation, and it is in the case law.

[00:05:53] Speaker 04:
The board did not do it.

[00:05:55] Speaker 04:
There's just nothing that even addresses it in the board's decision.

[00:05:58] Speaker 04:
That's not a question.

[00:05:59] Speaker 05:
Also, this case is... But again, I mean, you have to prove evidence.

[00:06:04] Speaker 05:
You have to provide evidence to make your own case, too.

[00:06:08] Speaker 05:
not legal error here, but I just as a matter of curiosity want to know, is there anything in this record to suggest what this veteran did before he started working at Walmart?

[00:06:18] Speaker 04:
There's nothing in the record to suggest what he did before working at Walmart.

[00:06:21] Speaker 04:
But it is important to keep in mind, Your Honor, I believe, that he did substantiate his claim.

[00:06:25] Speaker 04:
Otherwise, we wouldn't be here.

[00:06:27] Speaker 04:
The board started running the 4.16 analysis in this case.

[00:06:30] Speaker 01:
And he submitted and throughout the record... They're saying he didn't substantiate the claim.

[00:06:35] Speaker 01:
They say that he didn't come forward with evidence that there is no sedentary position or the arguments that are now being raised.

[00:06:44] Speaker 01:
Are you telling us that it was the board's obligation to determine the substantiation?

[00:06:53] Speaker 01:
It is.

[00:06:54] Speaker 01:
Even without knowing that this was an issue that he was pursuing?

[00:06:59] Speaker 04:
it is an issue he is certainly pursuing that's why the board started an analysis that didn't really finish and the court did the same thing but under VA's under the regulation it says the rating board SHALL discuss this information SHALL provide this information that is even more important even if they don't know that it's an issue he says I can't get a job because I have physical disabilities well he did say I believe at Joint Appendix 187

[00:07:25] Speaker 04:
He did, through his National Service Officer representative, they did make an allegation, and it's not as specific as Judge Hughes was pointing to, but it is an allegation that he cannot maintain gainful employment.

[00:07:37] Speaker 04:
He did say that.

[00:07:38] Speaker 04:
That did come in.

[00:07:39] Speaker 04:
He did say throughout the record at 54 and 55, he did say he can no longer do the job that he was doing.

[00:07:44] Speaker 04:
It is not specific.

[00:07:45] Speaker 04:
He did not provide an educational and vocational assessment.

[00:07:50] Speaker 04:
He did not do that.

[00:07:51] Speaker 04:
But again, it's VA's responsibility, once they start running this analysis, and once 4.16B is in play, it's VA's responsibility to discuss this and to take it into consideration.

[00:08:03] Speaker 01:
Even if it hasn't been placed at issue?

[00:08:05] Speaker 04:
But it has been placed at issue.

[00:08:07] Speaker 05:
Well, how far would you take that?

[00:08:09] Speaker 05:
Because, I mean, this is a case where he doesn't meet the 4.16A standards for TDIU, right?

[00:08:15] Speaker 05:
We have lots of these cases where people don't meet the A standards.

[00:08:18] Speaker 05:
Is your view that every time the A standards aren't met, that somebody has suggested unemployability, that the RO or the board or somebody has to do this full-blown look at the vocational?

[00:08:34] Speaker 04:
Yes, that is my position.

[00:08:35] Speaker 04:
And it's not only my position, it's the VA's position.

[00:08:37] Speaker 04:
It's in their M21.

[00:08:38] Speaker 04:
It's in the regulation.

[00:08:39] Speaker 04:
It's throughout the case law.

[00:08:41] Speaker 04:
The M21 provisions cited in the pleading have it spelled out what the VA regional offices are supposed to do in these cases.

[00:08:48] Speaker 04:
VA simply did not do it here.

[00:08:49] Speaker 04:
They wrote analysis, said basically they thought it could work, went out, got physical.

[00:08:56] Speaker 04:
They did.

[00:08:56] Speaker 04:
They answered some of the physical questions at play here, got medical evidence, but then did not

[00:09:02] Speaker 04:
delve the extra step that is required by the regulation and end their own interpretations of the regulations and get into the educational and work history form.

[00:09:11] Speaker 01:
So how much of a burden on your approach is there on the veteran to place this aspect and some kind of issue?

[00:09:23] Speaker 04:
When he said he can no longer work,

[00:09:25] Speaker 04:
and the regional office took that to mean that he was claiming total disability based on individual unemployability.

[00:09:31] Speaker 04:
Then VA's analysis has to start.

[00:09:32] Speaker 01:
Your position here is that he couldn't work at a desk job because his disabilities would not permit him to do anything other than a desk job.

[00:09:44] Speaker 01:
It would be perhaps factual

[00:09:47] Speaker 01:
and therefore beyond our jurisdiction, but said, I can't do a desk job because I never learned how to operate a computer or whatever else, which I think would have very little to do with the disability.

[00:10:02] Speaker 01:
But you say we take the veteran as he comes to us.

[00:10:05] Speaker 01:
I appreciate that.

[00:10:06] Speaker 01:
We try to understand where the line is, what that the veteran

[00:10:13] Speaker 01:
adequately met on your position that placed the burden on the government to bring out more elaboration, which is what I think you're asking for.

[00:10:26] Speaker 04:
When he said, Your Honor, when he said, I can't work due to my service-connected conditions, that's when BA had to start running the correct analysis.

[00:10:35] Speaker 05:
Suppose, and I recognize there's no question that the board didn't fully discuss it,

[00:10:44] Speaker 05:
But suppose here we have the same record, the veteran didn't come forward with anything beyond that bare statement, and the board looked at it and said, you know, he doesn't meet the threshold requirements under A. We're not going to refer under B because his medical condition would allow him to do sedentary work, and there's nothing in the record that would suggest that he has a vocational or background difficulty that would prevent him from sedentary work.

[00:11:08] Speaker 05:
Is that sufficient?

[00:11:11] Speaker 04:
If the board had said there's nothing in the record, and they had given him a full opportunity to supply those and ensure that he said, I have nothing more to submit.

[00:11:24] Speaker 05:
This is where I'm trying to get at it.

[00:11:27] Speaker 05:
suggesting now, I think, going down a line of duty to assist things, that there's a particularized duty to assist in how to prove your claim.

[00:11:35] Speaker 05:
And we've rejected those arguments.

[00:11:38] Speaker 05:
Absolutely.

[00:11:39] Speaker 05:
So for me, this is what this case seems to be.

[00:11:41] Speaker 05:
The problem here is that you're requiring the board to say something that the record didn't even address.

[00:11:50] Speaker 05:
And the Veterans Court found the board should have probably said one more sentence, but that it was harmless.

[00:11:56] Speaker 05:
because the record didn't reflect that anyway.

[00:11:58] Speaker 04:
But we don't know if it's, we don't really know that it is harmless error because we don't know, we still don't know what the board was doing, frankly, because the board just gave this paragraph answer citing the medical evidence and moving on.

[00:12:11] Speaker 04:
If they had followed the correct legal test, they may very well have remanded this to the regional office.

[00:12:19] Speaker 04:
to go out and get some more information.

[00:12:21] Speaker 04:
We don't know.

[00:12:21] Speaker 04:
That is a factual finding that requires vacator of the Veterans Court's decision.

[00:12:25] Speaker 05:
But that's not what we're reviewing.

[00:12:26] Speaker 05:
We're reviewing the Veterans Court's decision that that failure was harmless.

[00:12:31] Speaker 04:
But I disagree, again, slightly, Your Honor, with the characterization of this as a harmless error analysis.

[00:12:36] Speaker 04:
It can't get to harmless error.

[00:12:38] Speaker 05:
Well, I understand.

[00:12:39] Speaker 05:
If we see it as harmless error, you agree we don't have jurisdiction to review it?

[00:12:43] Speaker 04:
Yes.

[00:12:43] Speaker 04:
If it's harmless error, that's true.

[00:12:45] Speaker 04:
But it's not a harmless error analysis because the board didn't do the right test.

[00:12:49] Speaker 04:
Had the board run the correct legally required analysis, it may have gotten in there and said, oh, we don't have enough information about it.

[00:12:56] Speaker 05:
But that's what sort of agrees with you, that the board didn't fully explain its legal analysis.

[00:13:00] Speaker 05:
I'm not sure that they said they misapplied it.

[00:13:04] Speaker 05:
recited the right standard and then it comes down to our interpretation of that sentence.

[00:13:09] Speaker 05:
That's why I feel that's correctly stating the legal applying the legal standard or not.

[00:13:14] Speaker 04:
And that's why I feel so strongly about this case.

[00:13:17] Speaker 04:
They didn't comply with the law.

[00:13:19] Speaker 04:
There is just no question that BA did not comply with the law here.

[00:13:22] Speaker 04:
It is the

[00:13:24] Speaker 04:
What this court should do for Mr. Fulmer is send it back.

[00:13:28] Speaker 04:
All we're asking is for it to be sent back to the Veterans Court with an instruction that they apply the right test.

[00:13:31] Speaker 05:
Honestly, it seems to me like you had a very good case at the Veterans Court.

[00:13:34] Speaker 05:
And you had very good reasons and basis arguments that the Veterans Court should have accepted.

[00:13:39] Speaker 05:
But I don't understand how we can do anything beyond that, because we certainly can't review a failure of the Veterans Court to remand for reasons and basis.

[00:13:48] Speaker 05:
And once it made a harmless air finding,

[00:13:51] Speaker 05:
It seems to me that that's beyond our jurisdiction.

[00:13:55] Speaker 04:
It's not reasons or bases, and I appreciate your honor's point about that.

[00:13:58] Speaker 05:
But that was your point below.

[00:13:59] Speaker 04:
It was our point below, but we... This was a very good argument.

[00:14:02] Speaker 04:
Thank you.

[00:14:03] Speaker 04:
And we honed it in when we went for reconsideration because it was a surprising decision, because there is no question that it didn't comply with the law.

[00:14:10] Speaker 04:
And then turning to the plain language of 4.16b, it does say that the rating board shall.

[00:14:16] Speaker 04:
And under 7104A, VA has to consider all of the relevant evidence.

[00:14:21] Speaker 04:
4.160 is relevant.

[00:14:23] Speaker 04:
It didn't properly apply the test articulated in there.

[00:14:28] Speaker 04:
And that's why you can't get the prejudicial error yet.

[00:14:30] Speaker 04:
You can get the prejudicial error if they had run through all of the right things here.

[00:14:34] Speaker 04:
If the board had done its job, then perhaps the Veterans Court would have a point in characterizing this as a prejudicial error analysis.

[00:14:40] Speaker 04:
But it doesn't, because the legal test is at best incomplete here.

[00:14:46] Speaker 03:
4.16 says the rating board will include a full statement as to the veteran service-connected disability, employment history, educational and vocational attainment, and other factors bearing on the issue.

[00:14:59] Speaker 03:
But we've sort of round about and I think that you answered Judge Hughes' question that there doesn't exist particularized duties to assist, meaning there isn't failure here if the board didn't say answer this educational and vocational questionnaire.

[00:15:17] Speaker 03:
The board doesn't have, the VA doesn't have an obligation to probe onto specific and discreet issues, do they?

[00:15:26] Speaker 03:
Are you now suggesting that the board failed in a duty to assist by virtue of not investigating precise issues about employment history beyond what the veteran put into evidence, namely his Walmart prior history?

[00:15:42] Speaker 04:
What I'm saying, Your Honor, is that it should go back to the board.

[00:15:45] Speaker 03:
No, I don't want to hear what you're saying.

[00:15:47] Speaker 03:
I want you to answer my question.

[00:15:50] Speaker 03:
Did the VA have an obligation as part of its duty to assist to probe specifically into employment history beyond what the veteran offered in terms of his Walmart history?

[00:16:04] Speaker 04:
It does, Your Honor.

[00:16:05] Speaker 04:
Not necessarily under the duty to assist.

[00:16:08] Speaker 04:
But it does have an obligation to analyze those questions under the plain language of 4.16b.

[00:16:14] Speaker 03:
It does.

[00:16:15] Speaker 03:
It has an obligation to include a full statement with regard to any evidence that is presented on those questions.

[00:16:23] Speaker 03:
But what I'm failing to see is where the VA had an obligation to seek and obtain additional evidence beyond what was already in the record, which was his most recent history.

[00:16:37] Speaker 04:
Again, I think that the M21 is illustrative there.

[00:16:40] Speaker 04:
The M21 has a specific layout, and it's cited in our pleadings, has a specific layout for what VA is supposed to do when these claims arise.

[00:16:49] Speaker 04:
This is just in the TDIU context, and I don't believe it falls necessarily under the duty to assist, although VA certainly does have duties to help veterans, and under the VA's own regulations to answer these questions.

[00:17:01] Speaker 04:
All they've answered is,

[00:17:03] Speaker 04:
Maybe all they've answered is he can physically sit.

[00:17:06] Speaker 04:
He can sit for prolonged periods.

[00:17:07] Speaker 04:
We know that.

[00:17:08] Speaker 04:
Now what?

[00:17:10] Speaker 04:
Does that mean that he can do substantially gainful occupation in his community?

[00:17:13] Speaker 04:
And that analysis is required under VA's own interpretation of its regulation.

[00:17:18] Speaker 04:
So I do believe that the board had an obligation

[00:17:21] Speaker 04:
I think that that can be done on remand.

[00:17:23] Speaker 04:
The board will have to analyze what factually it still needs to properly comply with the law.

[00:17:28] Speaker 03:
But you're now suggesting that not only do we remand to say explain on this record whether or not he can do

[00:17:38] Speaker 03:
sedentary work but you're effectively asking us to remand and cause the board to reopen the record and do additional investigation and acquire additional information.

[00:17:51] Speaker 03:
That's what you really want because on this record you can't prevail.

[00:17:54] Speaker 03:
On this record his employment is the Walmart employment and there is no evidence he can't do sedentary work which lead to the harmless error decision.

[00:18:04] Speaker 04:
I don't know that on this record we can't prevail.

[00:18:07] Speaker 03:
What evidence in this record would suggest he's incapable of sedentary work?

[00:18:13] Speaker 04:
He can sit for prolonged periods.

[00:18:15] Speaker 04:
We know that.

[00:18:16] Speaker 04:
So if that means sedentary, but we don't know what sedentary means, if it's substantially gainful, if his training and expertise has him able to do a substantially gainful job.

[00:18:28] Speaker 04:
All we know is he can sit.

[00:18:30] Speaker 04:
And maybe on this record it would go back and the board would take another look at this.

[00:18:33] Speaker 04:
I'm not suggesting that the court do that today, nor did we suggest that the Veterans Court should.

[00:18:37] Speaker 04:
Maybe the board would take a look at it and say, look, he worked at Walmart.

[00:18:41] Speaker 04:
He says he cannot work.

[00:18:42] Speaker 04:
They found that lay testimony to be confident, by the way.

[00:18:45] Speaker 03:
Maybe giving him the benefit of the doubt.

[00:18:52] Speaker 03:
or harmless error and they made it here.

[00:18:56] Speaker 03:
So the fact finding you're saying I have to send it back for the board to do, that's the precise fact finding the Veterans Court made and that's the only fact finding they're ever allowed to make and it's expressed in their statute.

[00:19:07] Speaker 03:
They're allowed to make harmless, fact finding incident to a harmless error determination.

[00:19:12] Speaker 03:
They made it.

[00:19:13] Speaker 03:
So what is the point of sending it back to the board now?

[00:19:16] Speaker 04:
The point of sending it back is nobody's run the correct analysis yet.

[00:19:20] Speaker 03:
Well, the Veterans Court did.

[00:19:21] Speaker 03:
They made the fact-finding.

[00:19:22] Speaker 03:
You're saying on this record, perhaps the board would have concluded to the contrary.

[00:19:27] Speaker 03:
But the Veterans Court just did that analysis.

[00:19:30] Speaker 03:
And that's the only fact-finding they're allowed to make.

[00:19:33] Speaker 04:
Well, I think, first, Your Honor, I think one of the things is, yes, I think on this record they could have made a favorable finding.

[00:19:40] Speaker 04:
I think it is possible.

[00:19:41] Speaker 04:
But on remand, as a practical matter when it goes back to the board, if the board does determine that to comply with the correct legal test, they need to go out and get more information, they are free to do that.

[00:19:51] Speaker 04:
It does not need to be included in this court's order.

[00:19:54] Speaker 04:
To the second part of your question, the reason the prejudicial error analysis is improper at this point is you can't get there because the test has not been properly run and has not been properly answered.

[00:20:08] Speaker 05:
This I don't understand at all.

[00:20:10] Speaker 05:
You're suggesting, I think now, that if the board makes an error, the Veterans Court can't make a harmless error determination because the proper test has never been run.

[00:20:18] Speaker 05:
That's not what you're saying.

[00:20:19] Speaker 05:
In this case, I don't see how we could even send it back to remand it all the way to the board.

[00:20:26] Speaker 05:
At most, we could say, you apply the improper legal standard and send it back to the Veterans Court.

[00:20:32] Speaker 05:
But if we send it back to the Veterans Court,

[00:20:34] Speaker 05:
Aren't they just going to say, here's the proper legal standard?

[00:20:37] Speaker 05:
Under that standard, the board may have erred, but it's nevertheless harmless because the record doesn't support a finding of inability to do sedentary work.

[00:20:47] Speaker 05:
And if they did it that explicitly, we couldn't touch it, right?

[00:20:51] Speaker 04:
The court could do that.

[00:20:52] Speaker 04:
The court could do that.

[00:20:53] Speaker 04:
But the court could also say, yes, this is the proper test.

[00:20:58] Speaker 04:
We have an order from our superior court that says that we did not do the proper test.

[00:21:03] Speaker 04:
As a practical matter, when running the proper test, this should go back to the Board of Veterans' Appeals so they can do it.

[00:21:13] Speaker 05:
I guess to answer your question.

[00:21:14] Speaker 05:
You're asking us to say essentially that in these circumstances, it's impossible for the Veterans' Court to find harmless error.

[00:21:22] Speaker 04:
I think without proper factual development, I think it's improper for the court to find that there's no prejudicial error.

[00:21:28] Speaker 04:
I think that Your Honor, absolutely, there's no question Your Honor is right.

[00:21:31] Speaker 05:
Which then flips to the other problem that you're suggesting that the Board fails somehow to properly assist the Veteran or develop the record.

[00:21:39] Speaker 04:
That's going to be a factual finding on remand.

[00:21:41] Speaker 04:
This Court just needs to send it back to the Veterans Court, letting them know, telling them, not letting them know, this Court needs to send it back to the Veterans Court with an instruction to properly interpret and comply with the law.

[00:21:53] Speaker 04:
At that point, if the Veterans Court gets into it, still finds harmless error,

[00:21:57] Speaker 04:
You know, that is what it is.

[00:21:59] Speaker 04:
But there's a chance that they do not do that, which is what makes remedy here so very important.

[00:22:04] Speaker 01:
Thank you, Your Honor.

[00:22:08] Speaker 06:
May I please record?

[00:22:18] Speaker 05:
predator player case involving a reason to be here with them i mean extremely agent veteran who can't work anymore have to do to get the board or the aro to look at his occupational requirements i mean he clearly told them i have these problems these were what i was doing because of my back injuries i can't do standing work anymore doesn't work out something beyond just

[00:22:42] Speaker 05:
a cursory requirement to say, well, you could do sitting work when they don't even know what the background of this veteran is.

[00:22:50] Speaker 06:
Actually, let's talk about 4.16b and what it actually does.

[00:22:53] Speaker 06:
I think Judge Moore started to read a paragraph, the last sentence of 4.16b.

[00:22:59] Speaker 06:
It applies at the regional office level.

[00:23:01] Speaker 06:
It's the instruction that the regional office must follow when it has determined that an individual case should be referred to the director of compensation programs for determination

[00:23:12] Speaker 06:
about whether TDIU should be awarded in the situation where they don't meet the percentage factors.

[00:23:17] Speaker 06:
That requirement to include that statement is a requirement to include the statement when the decision

[00:23:23] Speaker 06:
is made by the regional office to forward it to the director.

[00:23:25] Speaker 05:
No, no, I understand that.

[00:23:27] Speaker 05:
But in deciding whether to refer or not, in a veteran situation like this, don't they have to at least think about whether his, even if they conclude that medically he's capable of doing sedentary work, don't they at least have to think about whether he is vocationally qualified to do sedentary work?

[00:23:46] Speaker 06:
I think it's a two-step process.

[00:23:48] Speaker 06:
I think if you're medically able to work, like this veteran was determined by the medical evidence that he was able to work, and I'm drawing a little bit from some Veterans Court case law that kind of explains this a little bit and how we got to this point we're in today with respect to the duty, if you will, on the part of the board and part of its analysis to even touch on this.

[00:24:09] Speaker 06:
It arises when there is evidence of the record suggesting that perhaps he can't perform

[00:24:17] Speaker 01:
uh... work despite fact medical doctors have cleared them to perform work like with the case here but it isn't that really the problem here the entire record is this back and forth is uh... exposed is whether in fact the veteran had provided enough information to support his uh... physician isn't that where the duty to assist comes in well ultimately we begin with who has the ultimate burden to carry their case 5107 places that with the

[00:24:45] Speaker 01:
whether the assistance reduces enough evidence in order to support the veteran's claim is where the burden of proof comes in.

[00:24:52] Speaker 01:
There's no burden of proof is there at the threshold of the duty to assist if in fact there isn't enough evidence in the record to support the claim and nevertheless it becomes apparent as from everything we've heard it might be that we need more information about where the duty to assist comes in.

[00:25:15] Speaker 06:
If I'm understanding the court's question correctly, there are, if you will, burdens or steps that the evidence must take, a form of the evidence must take, must be some reasonable evidence suggesting this or leads to the truth.

[00:25:32] Speaker 06:
These kinds of things which are lower than the ultimate burden that I think the court

[00:25:37] Speaker 06:
if the court didn't say that.

[00:25:38] Speaker 06:
That's true.

[00:25:39] Speaker 06:
In other words, these hurdles are easier to meet by the veteran in the evidence.

[00:25:44] Speaker 06:
That would necessitate certain kinds of development that's spelled out in the regulations and the statute.

[00:25:49] Speaker 01:
Are you saying that there's no duty to assist unless the veteran's already presented some sort of prima facie case?

[00:25:56] Speaker 06:
No.

[00:25:56] Speaker 06:
That's the old well-grounded claim standard.

[00:25:58] Speaker 06:
But when that was replaced by what types of development would be performed by the veteran,

[00:26:06] Speaker 06:
BA, they retained some element of reasonableness as to how they would approach their development requirements.

[00:26:15] Speaker 01:
I don't see anything on the record saying that the veteran's position was unreasonable.

[00:26:20] Speaker 01:
Established he has a back injury.

[00:26:22] Speaker 01:
Established he can't do stand-up work or physically demanding work.

[00:26:28] Speaker 06:
So when the regional office first denied the claim,

[00:26:32] Speaker 06:
They told him, the reason we're denying your claim is because you can perform sedentary work.

[00:26:37] Speaker 06:
Then at that point, incumbent upon the veteran to say, that doesn't matter, I still can't work.

[00:26:43] Speaker 01:
That's what he said?

[00:26:44] Speaker 06:
No, he didn't provide any evidence to show, or even point the VA to go, where would they go get evidence to show why that would be the case?

[00:26:53] Speaker 01:
With a duty to assist, perhaps all they have to do is tell the veteran, you have to provide evidence.

[00:26:58] Speaker 06:
Well, that's incumbent in the decision, which when he told him you can't perform sedentary work, he was invited at that point to submit a notice of disagreement explaining why the VA was wrong.

[00:27:07] Speaker 06:
And this court has held numerous times, you just can't come back and say... When the man was wrong about what?

[00:27:11] Speaker 01:
They never said that he couldn't do physical, that he couldn't do sedentary work.

[00:27:16] Speaker 01:
Right, they said he could do sedentary work.

[00:27:17] Speaker 01:
The doctor said he could.

[00:27:18] Speaker 01:
The follow-up question is whether he presented enough evidence, enough information to support his unchallenged statement that he could only do sedentary work.

[00:27:32] Speaker 06:
Yes, but he could do sedentary work.

[00:27:34] Speaker 06:
So basically, he is not unemployable.

[00:27:38] Speaker 06:
And so if there's some reason, despite the fact that he can't... The question whether he's unemployable.

[00:27:43] Speaker 01:
Right, and the medical... Because there's no sedentary work I could do with my educational background.

[00:27:48] Speaker 06:
Now, if I was asked, if I was told, you don't qualify for TDIU because you can perform sedentary work.

[00:27:55] Speaker 06:
And I knew there was a reason why I couldn't do sedentary work.

[00:27:58] Speaker 06:
It's incumbent upon me to tell

[00:28:00] Speaker 06:
the agency.

[00:28:01] Speaker 06:
Why?

[00:28:01] Speaker 06:
No, I can't do sedentary work because.

[00:28:04] Speaker 01:
But that isn't that way.

[00:28:05] Speaker 01:
I mean, this is a, the only of all of the kinds of cases we see where there's an obligation placed on the government as a party to help the other side.

[00:28:16] Speaker 01:
Yes.

[00:28:17] Speaker 06:
In this court, in numerous cases, it's explained at what stations and stages of the development of the case, the duty to assist works.

[00:28:26] Speaker 06:
So 5103, which describes the duty to assist, occurs at the outset of the case when the VA needs to tell the veteran what he needs to do to fulfill his claim requirements or whatever.

[00:28:35] Speaker 06:
And at this time, as the court alluded to earlier, there's no suggestion at the time he submits his first claim for increase that there's any question about what his employment or occupational background is.

[00:28:46] Speaker 01:
Are you telling us the government's position is we're not going to help you unless you

[00:28:51] Speaker 01:
presenting up information to show that it would be fruitful.

[00:28:54] Speaker 06:
What I'm suggesting, no I'm not suggesting that, but what I'm suggesting is when you're told in your 5104 notice of decision by the rating office the reason why you're not going to get a TDIU award, and there's no question that he was told that, and it was because he could perform sedentary work.

[00:29:10] Speaker 06:
then I would say it's incumbent on the veteran at that point in responding to that decision in his notice of disagreement to say, you are wrong.

[00:29:18] Speaker 06:
I can't because.

[00:29:19] Speaker 06:
And it would give the VA some notice about what they could develop.

[00:29:22] Speaker 06:
So that if he came back and said, I don't have the proper educational background, VA would be, I noticed.

[00:29:27] Speaker 06:
It says, oh, we should look into that.

[00:29:28] Speaker 06:
And they could go develop that.

[00:29:29] Speaker 06:
But that's not what happened in this case.

[00:29:31] Speaker 06:
So that's what I'm suggesting.

[00:29:33] Speaker 05:
And that's why I'm suggesting a remand.

[00:29:34] Speaker 05:
When was the first time the veteran suggested that he can perform sedentary work?

[00:29:39] Speaker 06:
The very first time he could.

[00:29:42] Speaker 06:
I think it was after the Notice of Disagreement.

[00:29:44] Speaker 06:
I think the Notice of Disagreement just said... Let me see what the Notice of Disagreement was.

[00:29:59] Speaker 06:
128.

[00:29:59] Speaker 06:
Well, his service department person just took issue with... And they just stated, we disagree with the denial of entitlement to individual unemployment.

[00:30:06] Speaker 06:
I'm looking at page 128 of the Joint Appendix.

[00:30:10] Speaker 06:
But back to what this court can do.

[00:30:14] Speaker 03:
I can't answer that.

[00:30:19] Speaker 06:
I can tell you it apparently was not the notice of disagreement.

[00:30:22] Speaker 06:
So it's not in there.

[00:30:25] Speaker 06:
So let's see what this next document would have been.

[00:30:28] Speaker 06:
171 it looks like.

[00:30:34] Speaker 06:
Yes, I do recall somewhere in the record, Your Honor, he has a handwritten statement saying

[00:30:40] Speaker 06:
Well, I don't know if he says that I can't do sedentary work.

[00:30:42] Speaker 06:
He just says that I'm not employable or I can't get a job or something.

[00:30:47] Speaker 06:
I'm not sure he says something about I can't perform sedentary work.

[00:30:50] Speaker 05:
Well, we can ask this of your friend who presumably knows, but it seems to me that there was not a very clear statement that he was incapable of doing sedentary work until fairly late in the game.

[00:31:04] Speaker 06:
Possibly.

[00:31:05] Speaker 06:
But I want to go back to what this case is.

[00:31:07] Speaker 06:
I think this case is a rule of prejudicial error case.

[00:31:11] Speaker 06:
And as was learned earlier this morning and through the briefs, the burden to establish the prejudice of an error is on the claimant, as the Supreme Court said in Sanders.

[00:31:26] Speaker 06:
and nowhere in this record has the evidence been identified that there was an error.

[00:31:32] Speaker 03:
When you answered the question about the notice of disagreement, what you would have done or you would have expected the veteran to do is say, no, I can't do sedentary work because I don't have that skill set or whatever.

[00:31:45] Speaker 03:
then do you agree that it would have been incumbent upon the VA to further develop a record with regard to his skill set, his employment history or something?

[00:31:56] Speaker 06:
I think that would open up the possibility.

[00:31:58] Speaker 03:
No, that's not what I said.

[00:31:59] Speaker 03:
It wouldn't open up a possibility.

[00:32:01] Speaker 03:
Would it be incumbent on the VA at that point

[00:32:04] Speaker 03:
to develop a record or could they simply say this record doesn't contain any evidence in particular about what you're capable of, your bare allegation that you're not capable of sedentary work isn't enough to convince us otherwise and would the VA have been entitled at that point to rely solely on what has been presented in the record and say the record fails to establish that you're unable to do sedentary work?

[00:32:29] Speaker 06:
I think, I don't know

[00:32:32] Speaker 06:
at what level of legal errors could fall.

[00:32:35] Speaker 06:
But I do think that the Veterans Court would be within its province to say that there's a reason to base these errors.

[00:32:40] Speaker 03:
Well, of course they would be within their province.

[00:32:42] Speaker 03:
They were within their province in this case, and Danwell should have done it.

[00:32:44] Speaker 03:
But they didn't.

[00:32:45] Speaker 03:
And that's not the issue in front of me.

[00:32:47] Speaker 03:
I'm asking you at what point

[00:32:50] Speaker 03:
Is there an onus on the VA to develop those additional facts?

[00:32:54] Speaker 03:
And you had suggested a minute ago, which you're now backing away from, that well, if he had in the Notice of Disagreement put the VA on notice.

[00:33:01] Speaker 03:
But now you're not seeming to be wanting to break that idea.

[00:33:05] Speaker 06:
I think that in the past where the courts have found an error in the duty to develop,

[00:33:18] Speaker 06:
is when there has been a reasonable presentation made that should have put the VA on notice to go do something, and this Court and the Veterans Court have held in those cases that the VA should have done it.

[00:33:31] Speaker 06:
There's a question of sufficiency obviously, but certainly that would be a basis for the court to say you didn't do what you're supposed to do.

[00:33:39] Speaker 03:
Well, are they on notice when in this case all we've talked about are his fact related issues, but there's an additional factual finding by the VA that he has hearing loss and as such is incapable of using a regular telephone.

[00:33:52] Speaker 03:
wouldn't that affect a large number of what would otherwise be sedentary job possibilities?

[00:33:58] Speaker 03:
So I guess what I'm suggesting to you is, and I don't have the right to review the facts, and I'm well, well aware of that, but I guess what I'm suggesting to you is

[00:34:07] Speaker 03:
You're saying maybe there is a failure of a duty to assist once the VA has put on notice that there may in fact be problems with him performing sedentary.

[00:34:15] Speaker 03:
Does this record possibly provide such an opportunity given the additional disability related to his hearing, which he's not going to be a telephone answer or some sort of receptionist who needs to work a phone.

[00:34:29] Speaker 03:
He's got hearing problems.

[00:34:32] Speaker 03:
So any sort of interactive position and sedentary nature that uses a phone is not necessarily fair game for him.

[00:34:40] Speaker 03:
I'm just saying, what's necessary?

[00:34:42] Speaker 06:
Well, I mean, I think as I started to say earlier, that the way this TDIU thing works is sort of a two-step thing.

[00:34:51] Speaker 03:
And notwithstanding the fact that there's evidence that he has hearing problems, I'm not quite... There's actually a fact finding he required use of a specially equipped phone due to his hearing problems.

[00:35:01] Speaker 06:
Right, but he was complaining of tinnitus as related to service connection.

[00:35:08] Speaker 06:
He also has several non-service connected disabilities.

[00:35:11] Speaker 06:
And I thought that some of the hearing loss was not necessarily attributed to a service-connected disability.

[00:35:18] Speaker 03:
But even if the hearing loss isn't service-connected, if that's the state of the veteran, much like the farmer in Judge Hughes' prior case that he pointed to, isn't that we have to take the veteran as we find him?

[00:35:27] Speaker 03:
If he is blind and deaf and mute and you're telling me he can work as a receptionist, isn't that problematic?

[00:35:35] Speaker 06:
For purposes of PDIU, you cannot take into account non-service connected disability.

[00:35:39] Speaker 03:
No, but for purpose of PDIU, you have to assess what he is capable of.

[00:35:43] Speaker 03:
That's what the veteran's manual says.

[00:35:45] Speaker 03:
It actually uses the word capable.

[00:35:47] Speaker 03:
And so if his personal disabilities are such that he's not capable of sedentary work, then how can you find he necessarily is, right?

[00:35:56] Speaker 03:
Don't you have to take into account those other factors?

[00:36:00] Speaker 06:
Well, the regulation says that you need to

[00:36:03] Speaker 06:
include a statement demonstrating you have considered that when you forward the request for TDIU to the compensation director.

[00:36:13] Speaker 03:
Now, VA has interpreted that, although not universally, I might add, because there's some inconsistency with the VA law that- Isn't the VA manual, quote, the veteran's success in obtaining work of the type the veteran is capable of performing and is available in his or her community?

[00:36:28] Speaker 03:
That's what the- That's what the-

[00:36:31] Speaker 06:
whether or not that's binding and a basis this Court has set in numerous decisions that we're not going to look at the manual to impose duties on the VA.

[00:36:41] Speaker 06:
In this case, the regulation, 4.16B, doesn't even impose that duty.

[00:36:45] Speaker 06:
But the Veterans Court law does.

[00:36:46] Speaker 06:
So from working from there, although, like I said, it's inconsistent because the Veterans Court recognizes that what the Veterans Court has done essentially is impose a burden on the board in some cases, but not all cases, in which there has been a finding of

[00:37:02] Speaker 06:
where he could work some medically, he could work some, but not all.

[00:37:07] Speaker 06:
And where there's evidence in the record that suggests that perhaps he, for other reasons, occupational or educational, cannot be fully employable, then it's incumbent, according to the Veterans Court, on the board in addressing a denial, a challenge to a denial of a TDI award, to address that.

[00:37:26] Speaker 06:
That's the error that the Veterans Court found here, which is a reasons and bases error.

[00:37:31] Speaker 06:
And when you go back through the case law on this issue, although it probably has its genesis in 4.16b, the actual error cited by the Beckins Court in this case was really an error of reasons and bases.

[00:37:44] Speaker 06:
The board didn't explain why in this case.

[00:37:47] Speaker 03:
Are you sure?

[00:37:48] Speaker 03:
Because I thought what they said is the record didn't contain evidence that would have led to another.

[00:37:52] Speaker 06:
Now that's what led to their harmless error finding.

[00:37:56] Speaker 06:
because it is true, the Veterans Court, when they have imposed this requirement, has said in the past, but we won't find error where there is no evidence in the record that demonstrates that, or any argument made to the Veterans Court by the claimant, like there wasn't in this case, that the error in not talking about it was prejudicial.

[00:38:18] Speaker 06:
So I see my time is up, but I want to just reinforce the fact that I think not only do you have a prejudicial error

[00:38:24] Speaker 06:
obstacle here, but this is really a reasons and basis test that the Vectors Court found the board failed under its own case law.

[00:38:33] Speaker 06:
And under Coup 363, that's also something that this court can't disturb.

[00:38:38] Speaker 01:
Thank you.

[00:38:39] Speaker 01:
Thank you.

[00:38:42] Speaker 01:
Mr. Jones, we've exhausted your time.

[00:38:44] Speaker 01:
Is there anything new that you need to tell us in the next minute or so?

[00:38:49] Speaker 04:
There is not, Your Honor.

[00:38:51] Speaker 04:
We do urge that the court remand us for compliance with the proper legal test.

[00:38:57] Speaker 01:
Okay.

[00:38:58] Speaker 01:
Thank you.

[00:38:59] Speaker 01:
So thank you.

[00:39:00] Speaker 01:
The case is taken into submission.