[00:00:00] Speaker 04:
415-7057, Minter versus McDonald.

[00:00:42] Speaker 02:
The misinterpretation by the Veterans Court in this case involves the provisions of 38 CFR 4.16a and is shown by the following statement in the decision below.

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Nothing in the medical reports as a whole, however, indicate that Ms.

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Minter's ability to do sedentary work would be limited to protected environment, such as family business or sheltered workshops.

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or otherwise limited to positions that were not substantially gainful employment.

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Based upon the plain language of 4.16a, employment in a protected work environment is, by the definition provided in the regulation, marginal employment.

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And specifically, the regulation provides that marginal employment is not

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as a matter of this regulation, and therefore as a matter of law, substantial gainful occupation under the regulation.

[00:01:47] Speaker 04:
My problem with your argument, Mr. Carpenter, is that it seems to equate any time somebody needs special accommodations.

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And there's a determination that they need some degree of accommodation with marginal employment.

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And the regulation clearly limits marginal employment to a very specific kind of employment.

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And just if someone needs an accommodation like they can't heavy lift things.

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I know that's not the only accommodation Ms.

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Mincher needs.

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I understand the facts of this case.

[00:02:17] Speaker 04:
But if someone needs a very mild form of accommodation, that would not fall within the marginal employment category, because it would be something easy to accommodate in most circumstances.

[00:02:31] Speaker 04:
I agree, Your Honor.

[00:02:31] Speaker 04:
So what is your regulatory interpretation issue?

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Because I thought it devolved into,

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Anytime there's a determination that accommodations are necessary, that person qualifies as marginal employment status.

[00:02:42] Speaker 02:
No, Your Honor.

[00:02:43] Speaker 02:
I believe, if I could paraphrase our argument, anytime there is evidence of accommodation, the board is required to address whether or not those accommodations do or do not constitute a protected work environment.

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And that's what did not occur here by the board.

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There is no mention by the board in its decision anywhere as to whether or not the numerous accommodations that are identified in the record, by my count there are at least eight significant accommodations for three different service-connected disabilities that have a combined rating of 90%.

[00:03:19] Speaker 02:
There is only one more category available under the rating schedule and that is the category that Ms.

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Minter is seeking and that is a total rating.

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And under the correct interpretation of this regulation, the board was required to.

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Ms.

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Minter presented below the question of whether or not the board had or had not provided an adequate statement of reasons or bases for why the accommodations set out in the medical evidence were not a protected work environment.

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There was no mention whatsoever in the board's decision.

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What the court decided below was

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is that they could rely upon the statement related to sedentary work that is in those reports.

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The problem with that is that sedentary work does not appear in the regulation.

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So whether Ms.

[00:04:10] Speaker 02:
Minter can or cannot perform sedentary work is not the measure under the regulation.

[00:04:16] Speaker 04:
Well, so clearly we can't evaluate a fact finding and you can't be asking us to, and I know that you're well aware of this, be evaluating whether or not a correct decision was made about whether the number of accommodations necessary for this particular veteran

[00:04:33] Speaker 04:
rise to the level of marginal, because that would be at best application of law to act.

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Is the legal point that the board applied the burden on the wrong person, put the burden on her rather than it assuming the burden of disproving marginal employment, or is your argument that they totally

[00:04:52] Speaker 04:
failed to conduct the analysis at all, and that is a problem under the reg.

[00:04:56] Speaker 04:
What exactly is it?

[00:04:57] Speaker 02:
That is the latter, Your Honor.

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There was no addressing of this question, even though they went at great length over several pages to describe the multiple medical reports on the different disabilities which imposed one accommodation after another upon Ms.

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Minter's ability, in the opinion of the VA examiner, that Ms.

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Minter would be able to

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obtain sedentary employment.

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The record reflects that Ms.

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Minter has not had employment since 2009.

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There is no affirmative evidence in the record that Ms.

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Minter could work with the disabilities that she has.

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There is merely a medical opinion that speculates that she would be able to secure and obtain sedentary employment.

[00:05:46] Speaker 03:
Following up on Judge Moore's question, on page two of the

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opinion below, there's a listing of those accommodations.

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And the very next paragraph talks about whether this would be marginal work or not.

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And so I don't, whether this would be marginal employment or a protected work environment.

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So I don't see how you're correct in saying the board didn't address it.

[00:06:14] Speaker 02:
I'm sorry, Your Honor, in the board opinion or in the?

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I'm looking at GA2.

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In the courts of opinion.

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Yes.

[00:06:20] Speaker 02:
Well, but I believe, Your Honor, is not reading the decision correctly.

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And are we talking about the final paragraph at the bottom of page two?

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Yes, which follows the listing of those accommodations that you were talking about.

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The court there is describing Ms.

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Minter's reasoning.

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The court is not describing what the board did.

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You said the board didn't consider her argument, is what I understood you to be saying.

[00:06:48] Speaker 02:
No, no.

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The board did not consider the accommodations that were identified in the medical evidence in terms of the entitlement to an extra schedule or total rating under 4.16 if there is a protected work environment.

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The board discussed at length the multiple accommodations that were required.

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The failure, the error of the board was not to then go on and say whether that did or did not constitute a protected work environment.

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The court narrowed the reading of this regulation to exclude any protected work environment other than a family business or a sheltered workshop.

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Those are merely examples.

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under the regulation.

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You said the court limited it to.

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No, they said Ms.

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Minter's ability to do sedentary work would be limited to a protective work environment such as a family business or sheltered workshop.

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I don't read the court's decision as limiting its analysis to those two, but rather saying nothing in this record indicates that she would be limited to a protective work environment such as those kinds of places.

[00:08:00] Speaker 04:
So I'm not following your argument.

[00:08:02] Speaker 02:
Our argument is, Your Honor, that first,

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that VA does not define, other than giving the two examples, what a protected work environment is.

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We assert that the correct interpretation of 4.16a is that the phrase, a protected work environment, must address when the evidence raises the question of multiple accommodations for multiple disabilities.

[00:08:31] Speaker 02:
What the board did was to identify the multiple accommodations and then was silent on the question as to whether or not those multiple accommodations do or do not constitute a protected work environment.

[00:08:44] Speaker 03:
I'm having a trouble with that because in the paragraph that it immediately precedes the discussion of the protected work environment, all of those accommodations are listed.

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And then the court goes on to discuss the very issue you're talking about.

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But I want to talk about something else, which is you just said that

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the VA does not define what a protected work environment is.

[00:09:05] Speaker 03:
Yes.

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That being the case, there's not really a legal issue for us here.

[00:09:10] Speaker 03:
Instead, what they did, what the court did, was applied the law to the facts, which is something that we don't have jurisdiction to review, right?

[00:09:19] Speaker 02:
Well, with respect, Your Honor, I do not believe that that is correct.

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The court below rejected the error alleged

[00:09:30] Speaker 02:
by Ms.

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Minter's attorney below that said the board had an obligation under 7104D to address, excuse me, to provide an adequate statement of reasons or bases to every material issue.

[00:09:45] Speaker 02:
The material issue in this case was protected work environment.

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Protected work environment was not addressed by the board.

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The Veterans Court then said

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that you get a pass board on that because these records didn't raise it, but they didn't raise it in the context of sedentary work as being limited to.

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But that's not the test as to whether or not secondary work limits the veteran from only working in a protected work environment.

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Under the VA's regulations, there are three ways to get an extra schedule or total rating.

[00:10:24] Speaker 02:
you have no earnings as a result of your service-connected disabilities, which is in fact the record in this case, or there is evidence that you may be able to work, and there is evidence in this record that they may be able to work, but the second criteria is you get them if you work, but you can't make more than the poverty level.

[00:10:48] Speaker 02:
But if you work in a protected work environment, there is no limitation with the protected work environment.

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What is absent from this record is any analysis by the board as to whether or not the accommodations allow her to perform sedentary work outside of a protected work environment.

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That is inferred by the court and was not addressed at all by the board.

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That goes to our second argument under 7104A,

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court permitted the board to rely upon total speculation that sedentary work would equate to substantial gainful occupation.

[00:11:34] Speaker 02:
Substantial gainful occupation requires that sedentary work to produce, if it's not in a protected work environment, more than the poverty level in earnings.

[00:11:44] Speaker 01:
Mr. Carpenter, can I ask you a question back on the first point, since I think you're probably into your rebuttal time.

[00:11:49] Speaker 01:
But the government

[00:11:52] Speaker 01:
offers a view in its red brief of 416.

[00:11:56] Speaker 01:
And my question is going to be a legal view, I think.

[00:12:01] Speaker 01:
Is it your view that the Veterans Court adopted that view?

[00:12:04] Speaker 01:
The government says this protected environment language is simply inapplicable, except where the claimant has been working during the TDIU application process in such a job.

[00:12:20] Speaker 01:
Do you think the Veterans Court adopted that view?

[00:12:27] Speaker 02:
I cannot tell whether they did or they didn't.

[00:12:29] Speaker 02:
But presuming for the moment that the government is correct and they did, then that would be incorrect, because there is nothing whatsoever.

[00:12:37] Speaker 02:
That at least is a legal proposition.

[00:12:38] Speaker 02:
Yeah, absolutely.

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As to whether or not you have to be working.

[00:12:44] Speaker 02:
And that's the dilemma under this regulation, particularly as applied by the board in this case.

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And that goes to the legal question of what is required by a 4.16a.

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Is a veteran who is unable to work supposed to get a job in order to be able to demonstrate that they are entitled to the determination?

[00:13:06] Speaker 02:
That's an absurdity.

[00:13:08] Speaker 02:
That is a completely ridiculous interpretation of this regulation that a veteran, as in this case, who stopped working in 2009,

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whose conditions are documented to have gotten worse in 2012.

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She files an application with the extra schedule or total rating in 2012.

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Her combined rating increases from 60 to 90.

[00:13:31] Speaker 02:
And then she's supposed to go out and get a job in order to show that if she worked, she would have to work in a protected work environment.

[00:13:42] Speaker 02:
There's nothing in the regulation.

[00:13:44] Speaker 02:
None of those words say that.

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as impenetrable in my view as 4.16 is to understand.

[00:13:50] Speaker 01:
What does on a facts-found basis mean as opposed to making stuff up?

[00:13:56] Speaker 01:
Is that language doing any work?

[00:14:04] Speaker 02:
Well, I guess we have to assume that it's intended to mean something.

[00:14:08] Speaker 02:
What we read that language to mean, particularly in the context of this case, is that when you have medical records that outline accommodations, then you need to address those accommodations in terms of whether there is or is not a protected work environment.

[00:14:24] Speaker 04:
OK, Mr. Carpenter, let's save the rest of your time for rebuttal.

[00:14:27] Speaker 04:
Thank you.

[00:14:27] Speaker 04:
Miss Moses.

[00:14:33] Speaker 00:
May it please the court

[00:14:35] Speaker 00:
The protected work environment category is an exception to the rule disallowing a TDIU rating when the veteran is earning income that exceeds the poverty level.

[00:14:48] Speaker 00:
Essentially Ms.

[00:14:49] Speaker 00:
Mentor is seeking an advisory opinion to address when the protected work environment category is applicable.

[00:14:58] Speaker 00:
The board has done all the analysis that 4.16A requires it to do.

[00:15:04] Speaker 00:
which is to determine whether the veteran, in light of her service-connected disabilities, can pursue and maintain substantially gainful employment.

[00:15:13] Speaker 00:
And it has done that.

[00:15:14] Speaker 00:
It has looked at her work history, her educational background, and also her service-connected disabilities, and determined that she is still capable of securing and maintaining substantially gainful employment.

[00:15:31] Speaker 00:
The 4.16a does not require

[00:15:34] Speaker 00:
the board to go on to determine whether any employment that she might seek or might obtain would fit within the protected work environment category.

[00:15:47] Speaker 00:
It's only applicable when the veteran is earning income.

[00:15:51] Speaker 01:
So I guess I want to focus on that for a minute.

[00:15:57] Speaker 01:
First of all, that seems to me to be a legal interpretation.

[00:16:02] Speaker 01:
so that if the Veterans Court adopted it, we would have jurisdiction to review that interpretation as opposed to the way that at least I read the Veterans Court opinion, which I don't think makes any reference to this notion that that phrase about protected environment applies only to

[00:16:28] Speaker 01:
work that the applicant is in fact doing as opposed to could do.

[00:16:34] Speaker 01:
So I took the Veterans Court opinion to say we just think that there isn't enough evidence here to show that there is no substantially gainful employment, including employment outside a protected environment.

[00:16:57] Speaker 01:
Um, to, to qualify, um, her for TDIU.

[00:17:04] Speaker 01:
So I, I guess I'm a little baffled by the way that you're injecting what is a real legal issue here that I don't think the Veterans Court actually, um, resolved.

[00:17:18] Speaker 01:
Um, Your Honor, uh, your, do you need, do you need this, this point?

[00:17:23] Speaker 00:
No, because what the Veterans Court concluded.

[00:17:26] Speaker 00:
is that the board provided adequate reasons and bases for determining that the veteran can pursue and maintain substantially gainful employment and concluded that there's nothing about this case that raises this issue or this category regarding protected work environment.

[00:17:49] Speaker 00:
And that would be whether the record reasonably raises any issue is a question of fact.

[00:17:54] Speaker 00:
over which this court does not have jurisdiction.

[00:18:00] Speaker 00:
To reach the conclusion regarding substantially gainful employment, we are necessarily concluding that mismentor is not limited to marginal employment.

[00:18:14] Speaker 01:
Can I ask you a kind of a general practice question that probably goes more to Mr. Carpenter's second argument than to the first?

[00:18:23] Speaker 01:
How does the board

[00:18:24] Speaker 01:
and the VA generally go about making a market availability determination.

[00:18:32] Speaker 01:
That is, what jobs are available?

[00:18:34] Speaker 01:
Is it always the evidence submitted by a doctor or some examiner that says the claimant can do the following things?

[00:18:46] Speaker 01:
And I'm kind of generally aware, though of course I don't have documentation, statistical or otherwise, that jobs are available

[00:18:54] Speaker 01:
for somebody who can do that sort of thing?

[00:18:57] Speaker 01:
Or is there anything more systematic about it?

[00:19:01] Speaker 00:
Well, this court in Smith clearly states that the VA is not required to determine whether jobs that the veteran can do are available in the marketplace with respect to determining whether the types of jobs that the veteran can do.

[00:19:19] Speaker 00:
Here, for example, it's just categorical.

[00:19:22] Speaker 00:
She can perform

[00:19:24] Speaker 00:
sedentary work, and this is based on her educational background and her work history.

[00:19:30] Speaker 00:
She has a history of working as a counselor, so perhaps she could engage in that type of employment.

[00:19:41] Speaker 00:
But it doesn't have to go as far as to say whether these jobs are actually available.

[00:19:48] Speaker 00:
There's nothing in the duty to assist statute that requires the VA to consult an industrial survey,

[00:19:54] Speaker 00:
or a vocational expert.

[00:19:57] Speaker 00:
All that the VA must conclude is that she is capable of pursuing substantially gainful employment.

[00:20:10] Speaker 00:
Do you have anything further?

[00:20:11] Speaker 00:
No.

[00:20:11] Speaker 00:
For these reasons, we respectfully request that the court affirm the Veterans Court's decision.

[00:20:17] Speaker 04:
Please, Moses.

[00:20:18] Speaker 04:
Mr. Carpenter.

[00:20:19] Speaker 02:
Hey, police court, as I understand the government's argument,

[00:20:24] Speaker 02:
They have placed Ms.

[00:20:24] Speaker 02:
Minter in a Catch-22.

[00:20:26] Speaker 02:
They are able to rely upon the speculative evidence of VA examiners that there are sedentary works available out there for her to perform, and that based upon their multiple examinations for her multiple disabilities, if they meet the accommodations set out, then she would be able to get that work.

[00:20:49] Speaker 02:
But she's not entitled

[00:20:51] Speaker 02:
to the benefit of an analysis under protected work environment because she doesn't have a job.

[00:20:57] Speaker 02:
But they're denying her because she can get a job.

[00:21:02] Speaker 02:
Your Honor, there is nothing in the language of 4.16a that says that protected work environment is an exception.

[00:21:12] Speaker 02:
It is a criteria.

[00:21:13] Speaker 02:
It is one of the available options for eligibility.

[00:21:17] Speaker 02:
And if you meet that,

[00:21:19] Speaker 02:
And here is the real problem with the government's position.

[00:21:22] Speaker 02:
Under their own regulation, if she gets a job, as they say she can, doing sedentary work, and she makes less than the poverty level, she is still entitled to the benefit.

[00:21:36] Speaker 02:
And therein lies the problem with the evidence that the VA relies upon.

[00:21:40] Speaker 02:
There is no evidence that even if she could find the job that these collective VA examiners imagine, that she could meet

[00:21:48] Speaker 02:
the threshold of poverty to do that.

[00:21:51] Speaker 02:
But if she did, would she or would she not be working in a protected work environment where the amount of her income would not be relevant to her entitlement to an extra schedule or total rating?

[00:22:05] Speaker 02:
That's the way, that is the correct interpretation and that is not the interpretation that was relied upon by the Veterans Court.

[00:22:13] Speaker 02:
The Veterans Court selectively

[00:22:16] Speaker 02:
parsed out the regulation relying upon sedentary employment and failed to require the board to do what the board is required by statute to do to address whether or not these accommodations do or do not constitute protected work environment.

[00:22:36] Speaker 02:
Thank you very much, Your Honor.

[00:22:36] Speaker 04:
I thank both counsel.

[00:22:37] Speaker 04:
The case is taken under submission.