[00:00:00] Speaker 02: There are four argued cases this morning. [00:00:02] Speaker 02: The first of these is number 15-729 Robinson v. McDonald. [00:00:07] Speaker 02: Mr. Carpenter. [00:00:12] Speaker 03: I please the court, Count Carpenter, appearing on behalf of Mr. Jackie Robinson. [00:00:16] Speaker 03: This appeal concerns the legal standard required by the use of the phrase to secure or follow a substantially gainful occupation as used in the provisions of 38 CFR 4.16a. [00:00:30] Speaker 03: the Veterans Court erred by affirming the board's use of this incorrect legal standard. [00:00:37] Speaker 03: The VA, in a joint motion for remand in the previous proceeding in this case below, indicated that the board had not addressed whether or not the appellant was able to secure or follow a substantially gainful occupation, but rather had focused largely on whether or not the appellant was unable to work. [00:00:56] Speaker 03: In the decision on appeal, the legal standard used by the board to determine whether or not Mr. Robinson was unemployable was whether or not, due to his service-connected disabilities, he was unable to obtain or sustain gainful employment. [00:01:11] Speaker 03: The inability to obtain or sustain gainful employment is not the legal standard under 4.16. [00:01:17] Speaker 02: But the board also articulated the correct standard, didn't it? [00:01:24] Speaker 03: wrote the correct legal standard. [00:01:27] Speaker 03: In my view, it did not rely upon it. [00:01:30] Speaker 03: And in fact, when you look at what the board did in explaining itself, it said that the VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded by reason of a service-connected disability from obtaining or maintaining any form of gainful employment [00:01:54] Speaker 03: consistent with his education and occupational experience and then cited to three regulations including 4.16. [00:02:02] Speaker 03: That standard of any form of gainful employment is not the standard in any of those regulations. [00:02:11] Speaker 03: The standard in all three of those regulations [00:02:14] Speaker 03: is to secure or follow substantial gainful occupation. [00:02:18] Speaker 01: But the Veterans Court said that it was looking at the board's decision as a whole. [00:02:22] Speaker 01: I mean, is your complaint really that the board didn't apply the correct standard or that it went back and forth in terms of its phrasing, sometimes using shorthand that you think reflected the wrong statement? [00:02:35] Speaker 03: Well, Your Honor, in our view, they consistently use the wrong standard. [00:02:40] Speaker 03: Now, whether they went back and forth as the [00:02:42] Speaker 03: court below found, I don't think they went back and forth. [00:02:45] Speaker 03: They simply noted the correct standard in two specific places in their decision, but when they went to apply the standard, they articulated the wrong legal standard. [00:02:58] Speaker 03: At page 116 to 117 of the joint appendix, the board concluded that the preponderance of the evidence is against the finding that the veteran was unable to obtain or sustain gainful employment. [00:03:11] Speaker 00: But didn't at JA 116, they said three times, no less than three times, they referred to the standard as substantially gainful employment, substantially gainful. [00:03:23] Speaker 03: And the point is, Your Honor, they referred to it. [00:03:26] Speaker 03: They did not apply it. [00:03:27] Speaker 00: How do we know that? [00:03:28] Speaker 00: Is it by looking at the application of law to fact? [00:03:32] Speaker 03: No. [00:03:33] Speaker 03: By looking at what they articulated the standard to be. [00:03:36] Speaker 03: And in two specific places in this decision, [00:03:40] Speaker 03: they identified the wrong legal standard. [00:03:43] Speaker 03: And if they identified the wrong legal standard, then it was up to the Veterans Court to tell the board to do it over again using the correct legal standard in a decision in which there is no ambiguity about what legal standard was to be applied. [00:04:00] Speaker 00: Are you familiar with our decision in Lechleiter? [00:04:03] Speaker 00: In Lechleiter we said it was a similar situation where [00:04:06] Speaker 00: At one point, the board used the phrase gainful employment as shorthand, and then later used substantially gainful employment several times, and this court held that it was okay for the board to use the shorthand affirming the Veterans Court's decision. [00:04:25] Speaker 03: I'm sorry, I'm at a complete loss for the case, but the case where I recall that this court looked at that, [00:04:37] Speaker 03: The language was much similar to and did not, as they did in this case, use the term or the phrase, unable to obtain or sustain gainful employment. [00:04:49] Speaker 03: And the difference is that under 4.16a, the regulation allows for the veteran to actually be employed. [00:04:59] Speaker 03: He can be employed. [00:05:01] Speaker 03: He can have a form of employment. [00:05:03] Speaker 03: But it must not be substantially gainful employment. [00:05:07] Speaker 03: And therefore, when they use terms like obtain and sustain substantial gainful employment, it raises that bar to a different level than what is intended by the regulation. [00:05:19] Speaker 03: The regulation clearly provides that a veteran is capable of even earning more than marginal employment if that veteran is earning that in a sheltered environment. [00:05:30] Speaker 02: You might have an argument if all the board had done was to mention the correct standard in one place and then when it got to analyzing the facts, used an incorrect standard, but your problem [00:05:47] Speaker 02: I think as Judge Stoll has pointed out to you on page 116, two of the times that they used the correct standard are with respect to the facts of this case in finding that he could function as a truck driver or as a repairman. [00:06:02] Speaker 02: They used the correct standard in finding that the evidence showed that he could secure and maintain substantially meaningful employment. [00:06:12] Speaker 03: Except that the problem is they did not apply it in the pertinent period in this case. [00:06:18] Speaker 03: He did not work during the pertinent period in this case from 1996 to 2001 in either of those professions. [00:06:25] Speaker 02: Well, he doesn't have to actually work in the professions, right? [00:06:29] Speaker 02: He was finding that he could have worked and that he had the capability to work in those professions. [00:06:35] Speaker 02: and to obtain and secure substantially gainful employment is all that's required, right? [00:06:42] Speaker 03: Well, yes, but there must be an evidentiary basis for it in the record. [00:06:45] Speaker 03: And there is no evidentiary basis for it in the record. [00:06:48] Speaker 03: In fact, the record... Well, that's a different argument. [00:06:50] Speaker 03: Well, no, Your Honor, I'm responding to your question as to whether or not they could [00:06:55] Speaker 03: apply the standard by simply saying that he's capable of working. [00:07:00] Speaker 03: They cannot apply the standard under 416 because they have to show that he was in fact working at a substantially gainful occupation. [00:07:11] Speaker 02: But it doesn't require that he be working, does it? [00:07:13] Speaker 02: That's not the test. [00:07:14] Speaker 02: It's that he could have worked at a substantially gainful employment. [00:07:18] Speaker 03: With respect, Your Honor, I disagree. [00:07:20] Speaker 03: That's yet another argument. [00:07:23] Speaker 02: So what you're arguing now is that unless he actually has substantially gainful employment, he satisfies the test, even though he could have maintained substantially gainful employment. [00:07:36] Speaker 03: With respect, Your Honor, I'm trying to respond both to your question and to the evidence of record in this case. [00:07:42] Speaker 03: The evidence of record in this case is that during the pertinent period, [00:07:46] Speaker 03: He had no employment. [00:07:48] Speaker 03: And his lay testimony was, which was part of the reason this was sent back to the board for the second time, was that he was unable to work due to his service-connected disabilities. [00:07:59] Speaker 01: But the board found that he was incredible. [00:08:01] Speaker 01: And the Veterans Court affirmed that finding. [00:08:03] Speaker 01: I mean, those are applications of fact to law that we can't disturb. [00:08:06] Speaker 01: That's correct. [00:08:07] Speaker 01: When we're talking about the legal issue that you present, everyone agrees what the standard is, right? [00:08:13] Speaker 01: Substantially gainful employment, correct? [00:08:15] Speaker 03: Well, to secure and follow substantial gainful occupation, yes. [00:08:22] Speaker 01: But your argument in your brief here was that they referred to gainful employment as opposed to substantially gainful employment. [00:08:30] Speaker 03: Well, and to obtain and sustain that, to be able to keep it [00:08:34] Speaker 03: And that is part of the colloquy with Judge Dyke, is that the regulation does not require them to be capable of sustaining it, but to follow it by affirmative evidence in the record that they're- You never made this argument in any of your briefs. [00:08:53] Speaker 01: Because the argument- You didn't make it to the Veterans Court? [00:08:58] Speaker 01: It wasn't made to the Veterans Court, and you haven't made it to us before today? [00:09:01] Speaker 03: Because the argument we relied upon [00:09:03] Speaker 03: was the use of the wrong legal standard. [00:09:06] Speaker 03: That Mr. Robinson, when he went back on remand, did not get the benefit of the court ordered remand that was agreed upon by the government to go back and look at it under the correct legal standard. [00:09:18] Speaker 01: Right. [00:09:19] Speaker 01: But your problem is the Veterans Court assessed the board's opinion and said they actually applied the correct legal standard. [00:09:27] Speaker 01: and then said, under that correct legal standard, we affirmed their factual conclusions, which included the finding that he wasn't credible. [00:09:38] Speaker 01: So how can we disturb that? [00:09:41] Speaker 01: Veterans Court said the correct legal standard was applied. [00:09:45] Speaker 03: Because the correct legal standard wasn't applied. [00:09:47] Speaker 03: And I have pointed to two specific points in the decision in which it was not applied. [00:09:52] Speaker 03: And in my view, there is an ambiguity about what the board was doing in applying the legal standard in saying they're going to use one legal standard here and then another legal standard here when they're analyzing the evidence. [00:10:06] Speaker 03: That simply is not applying the correct legal standard. [00:10:10] Speaker 03: They made a specific conclusion that there was a preponderance of evidence in which there was, in fact, no evidence. [00:10:17] Speaker 03: Even if you exclude Mr. Robinson's evidence, there was no affirmative evidence in this record that Mr. Robinson was capable of securing and following substantial gainful occupations in spite of his service-connected disabilities. [00:10:34] Speaker 01: Those were factual findings. [00:10:37] Speaker 03: I understand that, Your Honor, except that that's the legal standard under which the board rendered its decision. [00:10:46] Speaker 03: at pages 116 to 117. [00:10:49] Speaker 03: It said that the preponderance of evidence was against a finding that the veteran was unable to obtain or sustain gainful employment. [00:10:59] Speaker 03: That is not the correct legal standard. [00:11:02] Speaker 03: The correct legal standard is his ability to secure or follow. [00:11:07] Speaker 03: And that has to be based upon evidence in the record. [00:11:12] Speaker 03: There is no evidence. [00:11:14] Speaker 03: board other than its own unsubstantiated opinion made a conclusion that he was capable. [00:11:21] Speaker 03: That capability determination must be based upon evidence. [00:11:26] Speaker 03: And the key disposition in this case is the board's conclusion that there was a preponderance of evidence against. [00:11:35] Speaker 03: There is no preponderance of evidence against. [00:11:37] Speaker 03: because there was no evidence that directly related to that issue from any source within the record. [00:11:43] Speaker 03: No medical opinion, no vocational opinion. [00:11:46] Speaker 03: There was Mr. Robinson's opinion, and they discounted that. [00:11:50] Speaker 03: So if there was no evidence, then they should have sent it back for further development to get definitive evidence one way or the other. [00:11:58] Speaker 03: I'll reserve the balance of my time. [00:11:59] Speaker 02: Thank you, Mr. Brown. [00:12:02] Speaker 02: Ms. [00:12:02] Speaker 02: Bond? [00:12:10] Speaker 04: Please the court. [00:12:11] Speaker 02: We agree with Mr. This is like the third case in the last few months that has come up here where the board has been sloppy about articulating the correct standard. [00:12:25] Speaker 02: Don't you think maybe it would be good if the board were a little more careful and would save us some litigation along these lines? [00:12:34] Speaker 04: Respectfully, the board [00:12:35] Speaker 04: here did apply followed the express guy and i don't know what you know is incorrect stand it would be better if they were just a little more careful women well perhaps it would be better if the board recited the entire regulatory language for data leaving out of keyword [00:12:53] Speaker 04: It may have been better had the board said substantially gainful employment every time it referenced the standard. [00:12:59] Speaker 04: It may have been even better than that had the board said secure or follow a substantially gainful employment as a result of service connected. [00:13:06] Speaker 02: Maybe you could communicate to them that it would be desirable to be a little more careful about this so we don't have these cases coming up here. [00:13:14] Speaker 04: Yes and the VA takes it seriously and this record shows that because both parties in the decision immediately preceding this 2013 board decision both parties agreed on a joint motion for remand and agreed on the correct standard to be applied in TDIU and that's because the prior 2011 board decision as Mr. [00:13:34] Speaker 04: Robinson noted, did apply an incorrect standard, whereas here the board had the benefit of following the guidance from the joint motion in which both... And it articulated an incorrect standard in some places, right? [00:13:50] Speaker 04: Well, by my... [00:13:53] Speaker 04: I don't think there's any need to reach the question of whether gainful is materially different. [00:13:58] Speaker 02: They articulated in some places, in this opinion, incorrect standard, right? [00:14:02] Speaker 04: They articulated a gainful employment. [00:14:05] Speaker 02: Which is an incorrect standard. [00:14:06] Speaker 02: It's not referring to the complete, substantially gainful, but it's not the case, as Mr. Robinson contends, that gainful... Your attitude about this suggests to me that you're not taking seriously the board's obligation to be careful about [00:14:22] Speaker 02: I think that's important. [00:14:25] Speaker 04: Certainly. [00:14:25] Speaker 04: We agree that the board must be careful. [00:14:27] Speaker 04: And here the board referred by my count to the substantially gainful standard nine times, notably in its crucial findings of fact regarding the veteran's ability to [00:14:40] Speaker 04: perform truck driving and repair work, both of these occupations, as substantially gainful occupations. [00:14:48] Speaker 04: So in contrast to this nine times of referring to the substantially gainful standard, the board used a shorthand of gainful employment four times. [00:14:56] Speaker 04: So really by any metric, the board really was applying the substantially gainful standard. [00:15:03] Speaker 04: And that's also apparent [00:15:05] Speaker 04: because the board expressly said that's what it was doing at JA 112. [00:15:09] Speaker 04: It said it was conducting its entire TDIU analysis, quote, mindful of the guidance from the joint motion. [00:15:16] Speaker 04: And so the board here was clear. [00:15:20] Speaker 04: And that's precisely where the Veterans Court itself started its analysis in considering the fact that the board was following the joint motion and that it made these correct factual findings. [00:15:31] Speaker 01: Whether the argument was made before today or not, do you agree that secure and sustained, substantially gainful employment is something different that actually requires a showing that he has done it, as opposed to capable of doing it? [00:15:48] Speaker 04: No. [00:15:49] Speaker 04: To the extent that Mr. Robinson is now arguing that the board's occasional reference to obtain and sustain, as opposed to the regulatory language of secure and follow, to the extent that he's arguing [00:16:00] Speaker 04: That's a meaningful or that's erroneous. [00:16:03] Speaker 04: The Veterans Court did actually address that. [00:16:06] Speaker 02: I don't think you're understanding the question. [00:16:08] Speaker 02: OK. [00:16:08] Speaker 02: The question, he is arguing today that it's not sufficient that he could have died. [00:16:14] Speaker 02: What Judge O'Malley is asking you, is he correct in saying the record must show that he did do it? [00:16:20] Speaker 04: No, there's no requirement that the veteran actually be employed. [00:16:24] Speaker 04: And one of the cases cited by Mr. Robinson, I believe at page 12 of his opening brief, it's the Van Hoos case, says that, it's a veteran's court case, it says that the question is not whether he was employed or not. [00:16:38] Speaker 04: It's whether he was, quote, unable to secure or follow. [00:16:41] Speaker 04: And that's a different question about whether he was, in fact, employed. [00:16:45] Speaker 01: You argue in your harmless error section of your brief [00:16:50] Speaker 01: that the board found that Mr. Robinson was capable of securing and following a substantially gainful employment as a truck driver or a repair worker, and that that finding was never challenged, either before the Veterans Court or before this court. [00:17:09] Speaker 01: Your friend on the other side, Mr. Carpenter, seems to disagree with that. [00:17:13] Speaker 01: He says it was challenged. [00:17:15] Speaker 04: Well, I read his reply brief as continuing to say that even the standard applied in those areas was incorrect. [00:17:24] Speaker 04: At pages, I think, four to six of the reply brief, Mr. Robinson is repeating the argument that this is the wrong legal standard and saying, generally, when the alleged wrong legal standard is used, remand is the appropriate result. [00:17:39] Speaker 04: And of course, as I mentioned before, we disagree. [00:17:41] Speaker 04: We think that the correct legal standard was applied. [00:17:43] Speaker 04: But in any event, the cases that Mr. Robinson's relying on about remand are really distinguishing between remand versus reversal. [00:17:52] Speaker 04: It's true that in cases of prejudicial error in agency decisions, the best route is to remand for the agency to exercise its discretion. [00:18:00] Speaker 04: But that doesn't address the question of prejudicial error. [00:18:02] Speaker 04: So here, even assuming that the court were to find that these occasional references to gainful instead of substantially gainful, [00:18:09] Speaker 04: amounts to an error, all that remains is for this court to apply the correct standard, which everybody agrees on, to this factual finding, which Mr. Robinson never argued to the Veterans Court or to this court that the finding regarding truck driving and repair work was clearly erroneous. [00:18:28] Speaker 04: These factual findings are undisturbed. [00:18:30] Speaker 04: However, the best conclusion to draw from these factual findings is that the board [00:18:37] Speaker 04: in fact did what it said it did, that it followed the joint motion guidance, it applied the substantially gainful standard, it made important findings pursuant to that standard, and for that reason the Veterans Court was correct in saying that the board applied the correct standard for TDIU. [00:18:53] Speaker 04: Is there any other questions for your special request? [00:19:07] Speaker 03: Your Honor, in the Van Hoos case below that was referred to by the government and cited by us in the opening brief, discusses the standard in terms of whether the veteran is capable of performing the physical and mental acts required by employment and not whether or not the veteran is in fact employed. [00:19:30] Speaker 03: The key in this case is the absence of the word substantially. [00:19:35] Speaker 03: Substantially [00:19:37] Speaker 03: is the qualifier in the regulation for the employment, for the substantial gainful occupation in the language of the regulation. [00:19:47] Speaker 03: The legal standard relied upon by the board below, which they introduced after a remand from the court that told them that they were supposed to be using it. [00:19:57] Speaker 03: They did not take that remand seriously. [00:19:59] Speaker 03: They decided to use their own language, and they imposed that language [00:20:05] Speaker 03: that is counter to that legal standard and imposes a higher burden of any form of employment. [00:20:13] Speaker 03: And it is not any form of employment. [00:20:17] Speaker 03: The record is clear that prior to 1996, this veteran did work in those occupations. [00:20:23] Speaker 03: The question is, from 1996 to 2001, [00:20:27] Speaker 03: Was he capable? [00:20:29] Speaker 03: And where is the evidence in the record to support that conclusion that there is a preponderance of evidence? [00:20:36] Speaker 03: It comes from the board's use of the wrong legal standard that they only had to look at whether or not he was capable of performing any form of employment. [00:20:47] Speaker 03: And in so doing, they made a clear legal error which should have been recognized by the court below and should have been remanded for correction to use the correct legal standard. [00:20:57] Speaker 03: I'll search for the question. [00:20:59] Speaker 02: Okay, thank you Mr. Carpenter. [00:21:01] Speaker 02: Thank you, Mr. Bond. [00:21:02] Speaker 02: The case is submitted.