[00:00:00] Speaker 03:
We have three cases scheduled for oral argument today.

[00:00:05] Speaker 03:
Let's start with the first one.

[00:00:07] Speaker 03:
This is seal number 14-7090, Vedder versus McDonald.

[00:00:15] Speaker 03:
Mr. Smith, you reserved five minutes for rebuttal, is that right?

[00:00:19] Speaker 03:
That's correct.

[00:00:19] Speaker 03:
Okay.

[00:00:20] Speaker 03:
Thank you.

[00:00:20] Speaker 03:
Please begin when you're ready.

[00:00:22] Speaker 01:
May it please support?

[00:00:24] Speaker 01:
I have two initial points I'd like to make regarding the

[00:00:28] Speaker 01:
interpretations of the VA regulations that issue in this case.

[00:00:31] Speaker 01:
First, with regard to Section 4.16, contrary to this text of the regulation itself and the precedent from this Court, the Veterans Court interpreted the regulation as precluding a TDIU finding as being reasonably raised by a record that contains evidence of unemployability if a veteran is later determined to have been able to obtain employment.

[00:00:55] Speaker 01:
With regard to Section 4.63, the Veterans Court incorrectly interpreted the regulation as requiring the equivalent of complete paralysis or ankylosis in order to reasonably raise a claim for loss of use and or foot.

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Mr. Vetter believes that both interpretations of these regulations were incorrect and asked this court to reverse the decision of the Veterans Court and remand this case to that court.

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with instructions to remand to the board to perform the proper.

[00:01:23] Speaker 03:
Can you show us where the Veterans Court did a treatment in terms of interpreting the terms of either 4.16 or 4.63?

[00:01:33] Speaker 01:
Sure.

[00:01:34] Speaker 01:
So with regard to 4.16, I think the evidence that the court was interpreting the regulation is in part shown by the fact that it cited 4.18 in its interpretation at

[00:01:48] Speaker 01:
It's a record, page A6.

[00:01:51] Speaker 01:
After considering the TDIU issue, it cites 4.18, which is related to unemployability.

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And in so doing, it shows that it wasn't merely applying 4.16 in resolving the veteran's claim.

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It was actually incorporating a limitation.

[00:02:07] Speaker 04:
But it's also citing 4.16, too.

[00:02:10] Speaker 01:
It cited 4.16 as well, but there would be no reason for the veteran's court to have cited 4.18 if it wasn't for some reason.

[00:02:17] Speaker 01:
incorporating a limitation from that regulation in its interpretation of 4.1.

[00:02:22] Speaker 00:
Let me see if I understand.

[00:02:23] Speaker 00:
You started off, I think, by saying that the wrongful interpretation had to do with, if I heard you correctly, the failure of the court to recognize what was required to trigger

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the inquiry into the 4.16.

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Is that right?

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Did I hear you correctly?

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As opposed to the question of what the substantive requirements of 4.16 are.

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Which is the argument you're making about the misinterpretation of 4.16?

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A substantive argument or in effect a procedural argument failure to recognize that there was evidence that should have provoked the board's inquiry into a 4.16?

[00:03:08] Speaker 01:
I think the question

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presented here because the VA and the board never actually reviewed 4.16 and its determination of whether or not it was reasonably raised by the record.

[00:03:20] Speaker 00:
But that's not really an interpretation question of the regulation, right?

[00:03:25] Speaker 00:
That's a question of whether there was an error on the part of the board not to have looked at the record and concluded that it was reasonably raised by the evidence, right?

[00:03:35] Speaker 01:
Right, but in determining that it wasn't reasonably raised, the court

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was looking at 4.16 and interpreted 4.16 as not encompassing a situation where a veteran is later unable to secure employment.

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In finding that his later employment prevented him from even reasonably raising the possibility of entitlement to TDIU under 4.16, which requires a veteran to be unable to obtain substantially gainful employment.

[00:04:08] Speaker 01:
The Veterans Court

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was actually interpreting 4.16 as not applying in the situation because Mr. Vetter later... You think that the Veterans Court was interpreting 4.16 not to require that or to require

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The substantial gainful employment was not required according to the Veterans Court.

[00:04:31] Speaker 00:
Is that your view of what they were saying?

[00:04:33] Speaker 01:
That's my understanding of what the Veterans Court, that's the interpretation that I believe the Veterans Court made in this case.

[00:04:38] Speaker 01:
But where does it say that?

[00:04:41] Speaker 04:
I think... They're asking us essentially to infer an interpretation from the way that the Veterans Court applied the flat facts, aren't you?

[00:04:49] Speaker 04:
No, I don't think there's any... Well then where in the opinion does it say

[00:04:53] Speaker 04:
4.16 doesn't apply when a veteran gains employment.

[00:04:59] Speaker 01:
I acknowledge that the opinion itself nowhere says it explicitly in those terms.

[00:05:04] Speaker 01:
But I think there is no requirement under the jurisdictional statute that it be made explicit that an interpretation is... Well, sure.

[00:05:12] Speaker 04:
I mean, you have to show us where it actually even implicitly suggests that.

[00:05:16] Speaker 01:
I think it implicitly suggests that

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the Court is interpreting the regulation that narrowly.

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As I've pointed out before, the fact that it cites 4.18.

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Indeed, the Secretary, in his brief, also in characterizing the Veterans Court opinion, said that... But it also cites 4.16.

[00:05:35] Speaker 01:
It cites both 4.16 and 4.18.

[00:05:37] Speaker 00:
Well, the passage that struck me as most indicative of what the Court seemed to think 4.16 required was the passage on A5,

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the second full paragraph in where the court is saying there is no record evidence.

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This is where it's dealing with the question of whether there was record evidence to support a TDIU determination.

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There's no record evidence that he was let go of that position as of July 12, 2012.

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That was his new position.

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Or that, and here's the critical language, the position was not one of substantially gainful employment.

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followed by a Senate saying he did not suggest below that he was unemployable or unable to obtain substantially gainful employment.

[00:06:25] Speaker 00:
Sounds like they are indeed interpreting 4.16 as requiring substantial gainful employment.

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Isn't that a fair, indeed the fairest reading of that language?

[00:06:39] Speaker 01:
The issue is, I agree that that's what the language says, the issue is that the reason the record doesn't contain

[00:06:46] Speaker 01:
evidence of substantially gainful employment or lack of substantially gainful employment is because the VA and the board never performed this analysis to begin with.

[00:06:57] Speaker 04:
And so the issue is under... It's not the analysis that shows that it's the record evidence.

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You're not making a failure to develop or assist argument here.

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You're saying that they didn't look at the record properly, right?

[00:07:10] Speaker 04:
So the record is what it is.

[00:07:13] Speaker 01:
But under 4.16B,

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A full statement as to the Veterans Service Connected Disabilities and Appointment History is required to be performed by the Board when a TDIU claim is reasonably raised.

[00:07:26] Speaker 04:
But when it's reasonably raised, the Veterans Court here found as a matter of fact that it wasn't reasonably raised by this record.

[00:07:35] Speaker 01:
But in doing so, it did so and the reason, the only basis provided by the Veterans Court in reaching that conclusion is that Mr. Vetter was

[00:07:44] Speaker 01:
later able to obtain employment.

[00:07:46] Speaker 04:
Well, that's not entirely accurate.

[00:07:48] Speaker 04:
On page A6, it elaborates and notes that he had several jobs as his claims for benefit was processed and then had this job for seven months as it was decided.

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So I think the court also understands that he lost those jobs, partly due to his disability, but it looks at the record as a whole and finds that as a whole, it doesn't demonstrate unemployability.

[00:08:12] Speaker 04:
I don't see where it's applying an incorrect legal standard there.

[00:08:15] Speaker 04:
I mean, I think your argument is that they've applied the incorrect legal standard by once a veteran gets a substantial job, then there can never be TDIU.

[00:08:26] Speaker 04:
And if that's what this was saying, you might have an argument.

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But I don't see where the Veterans Court is saying that.

[00:08:35] Speaker 01:
So the two things you pointed to on page 8-6, the fact that he had several jobs and that he was actually employed.

[00:08:42] Speaker 01:
The problem is that under this court's precedent in both Roeber and Comer and Roberson, this court interpreting the same regulation said that all a veteran has to do is prevent evidence of unemployability.

[00:08:53] Speaker 04:
Well, Roberson's a little bit different, isn't it, though?

[00:08:55] Speaker 04:
Because Roberson is based on the part of the statute where the veteran has met the scheduler, the 60% or the 80%, I think, and chose unemployability.

[00:09:06] Speaker 04:
That's different than 4.16B, isn't it?

[00:09:09] Speaker 01:
I don't think there's a distinction made in the statute or in Roberson regarding the fact that it was applied.

[00:09:14] Speaker 04:
It is essentially what you're arguing for is that any time whatsoever, no matter what the rating schedules provide, whether it's a 10% or an 80%, if there's any evidence that the veteran found a job, the board has to state on the record that 4.16B has been considered and doesn't apply.

[00:09:36] Speaker 01:
The question is not whether or not the veteran has obtained a job.

[00:09:39] Speaker 01:
I think what the point is is if the veteran has presented evidence of unemployability, in this instance, evidence that he even terminated for his job and that he was unemployed for a period of a year and a half during the time frame, that under those circumstances,

[00:09:53] Speaker 00:
the VA should consider the TDIU statute, 4.16A or B. Let me return to make sure that I understand your position on the jurisdictional issue, whether we have jurisdiction or not.

[00:10:04] Speaker 00:
Suppose that the Veterans Court had said explicitly, we interpret section 4.16, according to its terms, to require a showing that he was unable to obtain substantially gainful employment.

[00:10:22] Speaker 00:
the exact language from the regulation point, period.

[00:10:28] Speaker 00:
Then went on to say, we've looked at this record and we conclude on this record in light of the fact that he had a job ultimately, which seemed to be there was no indication that it wasn't a substantial employment.

[00:10:42] Speaker 00:
It was a maintenance supervisor or something like that, I think.

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And in light of that evidence, we think that that standard is satisfied.

[00:10:50] Speaker 00:
Would we have jurisdiction

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in that case, given that they read 4.16 to require exactly what, as I understand it, you're saying that it substantively is required to be interpreted to say.

[00:11:04] Speaker 01:
I think under those circumstances, I think it would present a factual question that this Court would be a barred jurisdiction, but I don't think that's exactly the same as what we have here, because here we have the Court also citing 4.18 in saying that.

[00:11:18] Speaker 01:
In light of

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4.18 as well as 4.16.

[00:11:22] Speaker 01:
In the Veterans Court's initial opinion, it didn't cite 4.16 at all.

[00:11:27] Speaker 04:
And that's at a... Sure, but you pointed out that error and the Veterans Court looked at it and said under 4.16 also the record doesn't raise unemployability.

[00:11:39] Speaker 04:
It seems to me that you're suggesting that because they're citing 4.18 in addition to 4.16 that they're somehow error.

[00:11:47] Speaker 01:
I think my position is that by citing 4.18

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and finding that the later employment was a bar to Mr. Vedder's reasonably raising the issue of TDIU.

[00:11:57] Speaker 01:
The Veterans Court was at least implicitly interpreting 4.16 to preclude the TDIU being reasonably raised.

[00:12:06] Speaker 03:
Mr. Smith, you're into your rebuttal.

[00:12:07] Speaker 03:
Do you want to say something about your 4.63 claim now or do you want to reserve your time?

[00:12:13] Speaker 01:
Just briefly, I'll note that 4.63 wasn't interpreted in this case as well.

[00:12:19] Speaker 01:
found that it requires at least the equivalent of complete paralysis or ankylosis to reasonably raise an issue of loss of use.

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We believe that is unnecessarily limiting of the regulation is not required.

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Those two subsections of the regulation are not the requirements of the general subsection which requires a determination based on the actual remaining function.

[00:12:49] Speaker 03:
Mr. Frihan?

[00:12:49] Speaker 02:
Good morning and may it please the Court.

[00:12:57] Speaker 02:
The Court should dismiss this appeal for lack of jurisdiction.

[00:13:00] Speaker 02:
Whether the record reasonably raises a TDIU claim in any given case is a factual question or most involves the application of law to fact.

[00:13:09] Speaker 02:
The Veterans Court here didn't merge sections 4.16 and 4.18.

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It simply cited both of those sections.

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The Veterans Court didn't hold that any employment is the same as non-loan.

[00:13:19] Speaker 03:
Why did the Veterans Court cite 4.18?

[00:13:23] Speaker 02:
Well, 4.18 also.

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What is this trying to suggest to the reader by invoking 4.18?

[00:13:30] Speaker 02:
Well, 4.18 also talks about unemployability and when a veteran may be considered as unemployable.

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So I think the Veterans Court was simply citing both 4.16 and 4.18 to cover all of its bases since obviously

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the issue here was whether or not Mr. Vedder is in fact unemployable.

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But it certainly referenced 4.16 and also referenced the specific language in 4.16 regarding substantial gainful occupation.

[00:13:59] Speaker 00:
Do you think the term unemployable in 4.18 incorporates the requirement that the employment be substantially gainful?

[00:14:10] Speaker 02:
Right, I think it does.

[00:14:11] Speaker 00:
I mean, it doesn't say so, I guess, explicitly, does it?

[00:14:14] Speaker 02:
In 4.18, it doesn't, but certainly in 4.16.

[00:14:18] Speaker 00:
But you interpret those terms as being impaired in material.

[00:14:23] Speaker 02:
Right.

[00:14:23] Speaker 02:
Certainly for a TDIU claim, the issue is one of substantially gainful employment.

[00:14:29] Speaker 00:
But I think you're also saying that even for 4.18 claims, which are a specific narrow category of claims,

[00:14:37] Speaker 00:
that would nonetheless also require substantially gainful employment.

[00:14:41] Speaker 02:
Right.

[00:14:41] Speaker 02:
That's right.

[00:14:42] Speaker 02:
That's right, Your Honor.

[00:14:46] Speaker 00:
Is there any hint anywhere in Veterans Court or for that matter Board precedent as to what constitutes substantially gainful?

[00:14:58] Speaker 02:
It has to be something other than marginal.

[00:15:01] Speaker 02:
And I don't recall the regulation offhand, but I believe there's a regulation that talks about marginal employment as well.

[00:15:08] Speaker 02:
So it has to be something other than marginal.

[00:15:11] Speaker 02:
And here, of course, the Veterans Court made the determination that the record simply didn't indicate and Mr. Vetter didn't assert that the job that he held was anything other than substantially gainful.

[00:15:25] Speaker 02:
Moreover, Your Honor, even if, Your Honors, even if the court considers this, the merits of this claim, any error here.

[00:15:32] Speaker 03:
Mr. Priami, are you suggesting that the veteran has to state on the record that although he may be employed, his job isn't substantially gained from it?

[00:15:44] Speaker 02:
Well, certainly if the issue presented, is presented to the Veterans Court and the Veterans Court doesn't make any sort of assertion,

[00:15:53] Speaker 02:
Otherwise, then it seems reasonable for the Veterans Court to conclude that, in fact, the employment is substantially gainful.

[00:16:03] Speaker 02:
And the Veterans Court, of course, looked at the record here as well and expressly stated that there simply is no indication in the record that the employment here was other than substantially gainful.

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Moreover, even if the court considers the merits

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Any error here in not considering TDIU was harmless error.

[00:16:24] Speaker 02:
The Board in fact considered whether the disability here caused market interference with employment under Section 3.321B1.

[00:16:35] Speaker 02:
The test for TDIU under Section 4.16 is actually a higher standard.

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So if Mr. Vetter wasn't able to meet that lower standard before the Board, he certainly wouldn't have been able to demonstrate TDIU.

[00:16:48] Speaker 02:
Turning briefly to Mr. Vetter's claim under Section 4.63.

[00:16:53] Speaker 00:
I assume, if I can interrupt you, I assume that the test of employability has to do with the particular skill set and experience of the particular veteran.

[00:17:05] Speaker 00:
In other words, you couldn't say that somebody who has been a carpenter all his life and is deprived of the capacity to continue to do carpentry could nonetheless

[00:17:16] Speaker 00:
write novels for a living, and that would be a substantial gain for employment.

[00:17:21] Speaker 02:
Right, although I wouldn't necessarily say that just because one couldn't do carpentry, there may not be other jobs that the veteran could do.

[00:17:29] Speaker 00:
I think the veteran... Right, but you wouldn't say, well, you could go to law school and become a lawyer if you don't have any skills for that.

[00:17:36] Speaker 02:
I think that would be unreasonable, Your Honor.

[00:17:37] Speaker 02:
That's right.

[00:17:40] Speaker 02:
Regarding the claim under 4.63, this court also lacks jurisdiction to entertain that claim.

[00:17:46] Speaker 02:
The Veterans Court simply did not interpret 4.63 as Mr. Vedder suggests.

[00:17:51] Speaker 02:
It didn't limit what constitutes loss of use of the hand to only the specific examples cited in the regulation.

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So this court should also dismiss that claim as well.

[00:18:03] Speaker 02:
So unless the court has further questions for these reasons, we respectfully request that the court dismiss this appeal.

[00:18:10] Speaker 03:
Well, why did the opinion invoke complete ankylosis and complete paralysis?

[00:18:17] Speaker 02:
I'm sorry, why did it?

[00:18:18] Speaker 03:
Yeah, why did it?

[00:18:19] Speaker 03:
Well, doesn't that suggest that in the Veterans Court's mind, that is what's needed in order

[00:18:29] Speaker 03:
by the requirements of this regulation.

[00:18:31] Speaker 02:
No, Your Honor.

[00:18:32] Speaker 02:
In fact, the Veterans Court specifically said that those are just examples provided in the regulation and obviously noted those examples, but it didn't limit its analysis.

[00:18:43] Speaker 02:
It didn't say the only way you can show loss of use of the hand is if you can meet one of those two examples.

[00:18:50] Speaker 02:
It never said that in its opinion, Your Honor.

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And in fact, it actually cited earlier at page 3 of the Joint Appendix

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the more general language in the regulation concerning whether or not the effective function of the hand would be equally well served by an amputation stump with the use of a suitable prosthetic device.

[00:19:06] Speaker 02:
And that's the portion of the regulation that Mr. Vedder focuses on.

[00:19:09] Speaker 02:
Well, the veterans cited that very language in its opinion.

[00:19:16] Speaker 02:
So for these reasons, we respectfully request that the court dismiss this appeal.

[00:19:22] Speaker 03:
Okay.

[00:19:22] Speaker 03:
Thank you.

[00:19:23] Speaker 03:
Thank you.

[00:19:24] Speaker 03:
Mr. Smith will give you four minutes if you need it.

[00:19:30] Speaker 01:
I have just a couple of quick points.

[00:19:32] Speaker 01:
First is the jurisdictional issue under 4.16.

[00:19:35] Speaker 01:
For all the reasons mentioned before, I believe this court does have jurisdiction and indeed in the Roberson case, the court was deciding a similar issue and the Federal Circuit determined it did have jurisdiction to hear the case in that instance.

[00:19:50] Speaker 01:
So I think this case presents a similar question regarding

[00:19:54] Speaker 01:
4.16 and when it's reasonably raised and that this court also has jurisdiction.

[00:19:59] Speaker 00:
But there you're going back to the reasonably raised question as being the jurisdictional point as opposed to the substantive question of what does 4.16 mean with respect to what the elements of proof are required.

[00:20:13] Speaker 00:
So I'm not clear which of those you're saying is the jurisdictional hook for this court.

[00:20:19] Speaker 01:
I think the jurisdictional hook is the interpretation of the regulation.

[00:20:23] Speaker 00:
The interpretation of the regulation as saying that it doesn't require substantial gainful employment as you read it.

[00:20:32] Speaker 00:
That's right.

[00:20:33] Speaker 00:
Okay.

[00:20:34] Speaker 00:
So the Roberson issue really isn't the jurisdictional hook issue then?

[00:20:38] Speaker 01:
Right.

[00:20:39] Speaker 01:
I think, yeah, right.

[00:20:40] Speaker 01:
Sorry.

[00:20:44] Speaker 01:
Okay.

[00:20:44] Speaker 01:
Second, briefly, the Secretary notes the harmless error of the decision of the case.

[00:20:49] Speaker 01:
I think there clearly is harmful error in this case if the court determines that it does have jurisdiction because Mr. Vetter under 4.16 is entitled to a full statement as to his service-connected disabilities, employment history, et cetera, that was not performed by the VA.

[00:21:10] Speaker 01:
Whether or not the VA considered 3.321 or some other statute that may have similar or different things

[00:21:17] Speaker 01:
is not the analysis he was entitled to under this regulation.

[00:21:20] Speaker 01:
And indeed, the case cited in our brief shows that they aren't the same analysis.

[00:21:26] Speaker 01:
They're not overlapping.

[00:21:27] Speaker 01:
They're really different analyses.

[00:21:28] Speaker 01:
So I think the harmless error issues should be disregarded.

[00:21:34] Speaker 01:
And then finally, with regard to 4.63, the Veterans Court did note that the two subsections, it characterized them as examples of what

[00:21:44] Speaker 01:
was required to meet the 4.63 statute.

[00:21:48] Speaker 01:
And I think that is in fact indicative of the fact that it is interpreting the language of the regulation above that as requiring something along the lines of those two subsections.

[00:21:57] Speaker 01:
But there's nothing in the regulation itself that says those are meant to be examples or criteria or set a threshold or be anything related to what is actually required to meet the text of the body of the regulation, which requires the determination

[00:22:14] Speaker 01:
made on the basis of the actual remaining function, particularly in the use of the hand, whether acts of grasping, manipulation, etc.

[00:22:20] Speaker 01:
is present or deficient to the point that it raises the issue.

[00:22:26] Speaker 01:
If you require complete paralysis or complete ankylosis as a prerequisite for getting to even recently raise this, then you're not going to be able to determine the actual running function because you're going to have required a complete paralysis.

[00:22:40] Speaker 01:
That analysis isn't going to be

[00:22:43] Speaker 01:
you'll never get to that analysis.

[00:22:46] Speaker 00:
Wouldn't you read 4.63A and B, which refer to the ankylosis and complete paralysis, as being examples of what constitutes a loss of a hand or foot?

[00:22:59] Speaker 01:
The way I read the regulation, I don't read them as examples.

[00:23:01] Speaker 01:
I read the text of the regulation above as being the standard met, required for 4.63.

[00:23:07] Speaker 01:
And A and B are merely two ways that automatically qualify.

[00:23:13] Speaker 01:
for 4.63 consideration, qualify under the statute.

[00:23:17] Speaker 01:
There aren't necessarily examples or meant to limit the text above them.

[00:23:22] Speaker 01:
I view them just as two circumstances that automatically meet the standard, not necessarily limiting the standard of the text above them.

[00:23:34] Speaker 01:
I think my time is up unless there's any further questions.