[00:00:13] Speaker 02:
final case for argument this morning is fifteen seven zero seven seven peterson versus mcdonald

[00:00:43] Speaker 03:
May it please the court, Kenneth Carpenter, appearing on behalf of Randy Pedersen.

[00:00:48] Speaker 03:
In this case, Your Honors, the Board of Veterans' Appeals made a finding that sedentary employment would be possible despite the appellant's need disabilities.

[00:00:58] Speaker 03:
This finding relied upon a VA medical examination that made the same conclusion.

[00:01:04] Speaker 03:
In so doing, they applied the wrong legal standard under the applicable provision of law, which is 4.16b.

[00:01:13] Speaker 03:
The Veterans Court erred by affirming the board's decision, which relied upon an incorrect legal standard.

[00:01:21] Speaker 03:
The correct legal standard is whether or not a veteran is capable of securing or following substantial gainful occupation.

[00:01:30] Speaker 03:
That permits by the very definition provided by the VA in its own regulation that a veteran may work.

[00:01:38] Speaker 03:
By finding that it is possible that the veteran may work,

[00:01:41] Speaker 03:
whether you characterize that work as sedentary or not, is simply not relevant to the disposition of whether or not under the regulation, the veteran is capable of performing, securing, obtaining substantial gainful occupation under the regulation.

[00:02:00] Speaker 03:
That is a misinterpretation of the regulation.

[00:02:06] Speaker 02:
I'm really quite unclear, honestly, about what it is

[00:02:10] Speaker 02:
You're arguing.

[00:02:11] Speaker 02:
I understood you.

[00:02:11] Speaker 02:
I thought you were arguing something about shifting of the burden.

[00:02:16] Speaker 02:
The burden should not be on the veteran to come forward.

[00:02:19] Speaker 03:
And that's what happens when you use the incorrect legal standard.

[00:02:24] Speaker 03:
The correct legal standard has to do with the ability to secure or follow substantial gainful occupation.

[00:02:30] Speaker 02:
I thought you were just telling us the correct standard is whether or not he's capable.

[00:02:35] Speaker 03:
Of securing or following substantial gainful occupation.

[00:02:38] Speaker 03:
When you impose a burden, as the Veterans Court did, to demonstrate that the veteran is capable of doing sedentary work, that shifts the burden to the veteran to prove something that isn't part of the requirements of the regulation.

[00:02:56] Speaker 03:
The regulation here... I don't understand.

[00:02:58] Speaker 02:
I'm sorry.

[00:02:59] Speaker 02:
I just want to stop you because I want to make sure.

[00:03:01] Speaker 02:
If you're saying the right standard is capable of securing employment,

[00:03:05] Speaker 03:
No, substantial gainful occupation, Your Honor.

[00:03:09] Speaker 03:
It is not employment.

[00:03:11] Speaker 03:
Whether you can secure a job is not the case.

[00:03:14] Speaker 02:
And so what is your rule that they can only deny you TDIU if you can perform all the jobs you used to perform?

[00:03:22] Speaker 02:
Are you saying, for instance, in this case, once they found that he was incapable of performing postal work and janitorial work, which he had done previously,

[00:03:30] Speaker 02:
then he should automatically be titled to the award because he can't do those jobs that he had before.

[00:03:34] Speaker 03:
Is that your position of how the statute of... Well, that would be the correct outcome in this case, but I do not believe that that, as you phrased it, correctly describes what is going on under this regulation.

[00:03:48] Speaker 03:
Under this regulation, Your Honor, the VA has defined what constitutes substantial gainful occupation by using the term marginal employment.

[00:03:59] Speaker 03:
and explicitly providing within the provisions of 4.16a a definition of marginal employment.

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Marginal employment allows a veteran to work so long as that work does not produce income more than the poverty level.

[00:04:16] Speaker 03:
That is the definition.

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And when you shift the burden to the veteran to come forward with evidence that describes an inability to prove a negative that sedentary work would not do that, then you shift the burden to the veteran.

[00:04:38] Speaker 02:
So what should the board have concluded in terms of what they do?

[00:04:43] Speaker 02:
They have all these medical reports, and they say he can't perform.

[00:04:46] Speaker 02:
janitorial or postal work, but he can perform sedentary employment.

[00:04:51] Speaker 02:
And you're saying that that conclusion should have led them to say, and therefore he's entitled to TDIU?

[00:04:57] Speaker 03:
Absolutely, Your Honor.

[00:04:58] Speaker 02:
Because he can no longer perform?

[00:05:00] Speaker 03:
Because there is no affirmative evidence in this record that the veteran is capable of, even when he does sedentary work, to do sedentary work which would produce income more than the marginal

[00:05:15] Speaker 03:
employment or, excuse me, poverty level as defined by the VA's own regulation.

[00:05:22] Speaker 02:
I mean, I don't know.

[00:05:23] Speaker 02:
I don't have that portion right in front of me.

[00:05:25] Speaker 03:
But there's no evidence that he's incapable of that.

[00:05:29] Speaker 03:
And that's where the burden shifting comes in, Your Honor.

[00:05:32] Speaker 03:
The obligation... Doesn't the claimant have some burden to provide some evidence?

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And he did.

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He provided evidence that he was terminated from his employment with the post office.

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He provided evidence that he was eventually awarded Social Security disability benefits, and he provided evidence that he has not worked since 2002.

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So as a consequence... But the board and then the Veterans Court in turn didn't believe that was persuasive on the ultimate question.

[00:06:01] Speaker 04:
of entitlement to TDIU.

[00:06:03] Speaker 03:
Because they relied upon a misinterpretation of the regulation that shifts the burden from the VA.

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It is the obligation of the VA to show that the veteran is capable.

[00:06:16] Speaker 03:
There is no affirmative evidence in this record that he is capable even if he could do sedentary work to earn more than the poverty level.

[00:06:25] Speaker 02:
Well, the terms, I don't know where the poverty level comes in.

[00:06:28] Speaker 02:
A and B both refer to substantially gainful occupation.

[00:06:33] Speaker 02:
So I don't know what... I thought that's what the criteria was.

[00:06:39] Speaker 03:
416A explicitly states, for the purposes of this section, marginal employment generally will be deemed to exist when the veteran earns annual income

[00:06:52] Speaker 03:
that does not exceed the amount established by the United States Department of Commerce Bureau of the Census as the poverty threshold for one person.

[00:07:01] Speaker 03:
And that means approximately, currently, $12,000 a year.

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If you can earn more than $12,000 a year, you have gained substantial gainful occupation.

[00:07:17] Speaker 02:
So you're saying the board had to find not only that he was capable of doing sedentary work, but sedentary work that would earn him substantially gainful occupation, which has to find that the Department of Labor means this.

[00:07:29] Speaker 03:
Yes, because that's what the VA defined in its own regulation.

[00:07:33] Speaker 03:
They were the ones that chose that mark.

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And they specifically then go on to say, Your Honor, in regards to marginal employment,

[00:07:50] Speaker 03:
Marginal employment may also be held to exist on facts found included but not limited to employment in a protected environment such as a family business or sheltered workshop when the earned annual income exceeds the poverty level.

[00:08:05] Speaker 03:
So in that alternative definition, the VA has provided by regulation that if you work in a sheltered workshop or you work for your own family business, you only have that job because of your familial relationship.

[00:08:19] Speaker 03:
You do not have that job.

[00:08:21] Speaker 02:
There was no circumstance put in front of it.

[00:08:24] Speaker 02:
This case does, at least from what I can tell in the record, it didn't present a question when they said, you're able to work because you've been working at this job.

[00:08:33] Speaker 02:
And he came in and he said, no, this job only earns me marginal employment under DOL.

[00:08:39] Speaker 02:
I don't see why that's this case.

[00:08:42] Speaker 02:
I don't understand why that piece of it, in terms of how much he can actually earn, is part of this case.

[00:08:49] Speaker 03:
Because that's the definition that is provided by the VA to guide its adjudicators on determining whether or not a veteran is or isn't capable of substantial gainful occupation.

[00:09:04] Speaker 03:
The operative word being substantial more than the poverty level.

[00:09:08] Speaker 03:
But let's back this up just a moment.

[00:09:10] Speaker 03:
What we're dealing with here is an issue that was raised by the veteran that the board did not give an adequate statement of reasons or bases

[00:09:19] Speaker 03:
about his vocational aptitude, what he was capable of doing.

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And the VA's regulation at 4.16B expressly provides that the VA is required to account for the employment history, educational, and vocational attainment.

[00:09:38] Speaker 03:
The Veterans Court described that as a vocational assessment.

[00:09:43] Speaker 03:
and then said that a vocational assessment did not need to be provided and would not be of any benefit.

[00:09:51] Speaker 03:
That is a misinterpretation because the regulation expressly provides that you must take that into consideration and in particular take in consideration the reason for the termination of the veteran's employment.

[00:10:05] Speaker 03:
The veteran's employment in this case was terminated in 2001 by the post office.

[00:10:11] Speaker 03:
The post office said he was no longer capable of working for the post office because of his service-connected disabilities.

[00:10:20] Speaker 04:
You're arguing about shifting the burden.

[00:10:25] Speaker 04:
But you're not challenging the duty to assist.

[00:10:28] Speaker 04:
You're not saying the government failed in the duty to assist.

[00:10:33] Speaker 04:
So if you're not challenging that, then where is the evidence that you think is missing supposed to come from?

[00:10:41] Speaker 03:
other than the claimant by making the vocational assessment that the veterans court said was not necessary under four point one six b that vocational assessment requires an analysis of the employment history the education this is a veteran who only has a high school degree but aren't you then isn't that really argument that uh... the government failed in the duty to assist because they should have provided a vocational assessment

[00:11:11] Speaker 03:
No, Your Honor, because in this case, the vocational assessment is to make the determination on capability.

[00:11:18] Speaker 03:
If they choose not to make the assessment, which they chose not to do in this case, they cannot then go on to say, we rely on the possibility that you could do sedentary work.

[00:11:31] Speaker 03:
The possibility that he could work is not part of the criteria under this regulation.

[00:11:37] Speaker 03:
The regulation requires substantial gainful occupation.

[00:11:41] Speaker 04:
So you're saying they couldn't have made the assessment that they made without having that piece of evidence?

[00:11:48] Speaker 03:
That's correct, Your Honor.

[00:11:49] Speaker 03:
They have to have affirmative evidence as part of that vocational assessment.

[00:11:53] Speaker 03:
that looks at the veteran's employment history, the kinds of jobs that he or she has done before, their education, and their vocational attainment.

[00:12:04] Speaker 03:
The most this veteran ever got to was being a guard at the post office and being a maintenance person at the post office.

[00:12:13] Speaker 03:
He had no skills.

[00:12:18] Speaker 04:
sedentary positions that presumably a high school graduate could fill, you know, telephone operator, tollbooth taker.

[00:12:29] Speaker 03:
And the question being whether or not with his service-connected disabilities would he have been capable of getting that job and that job producing.

[00:12:40] Speaker 03:
See, this is not the shifting of the burden here as described in the briefs is when the

[00:12:46] Speaker 03:
Government then comes on and flips the obligation, imposes the obligation on the veteran to demonstrate that he would not be able to.

[00:12:57] Speaker 04:
Isn't part of the problem here the fact that the claim itself is just like proving a negative.

[00:13:05] Speaker 04:
It's total disability based on individual unemployability.

[00:13:09] Speaker 04:
That's right.

[00:13:09] Speaker 04:
And your claim is I'm

[00:13:12] Speaker 04:
Objectively, one of my education and my experience and capabilities is incapable of gainful employment.

[00:13:22] Speaker 04:
It's a negative.

[00:13:22] Speaker 03:
And he is allowed to rely upon that assertion, particularly when the other facts are as they are in this case, unless the VA comes forward and demonstrates

[00:13:33] Speaker 03:
that there is something about his employment history, his education, his vocational attainment that would in fact allow him to go out and secure substantial gainful occupation.

[00:13:45] Speaker 03:
I'm sorry.

[00:13:46] Speaker 01:
I was going to just ask, and I don't know if this is possible, but can you just pinpoint for me where in the Veterans Court opinion you think there is the clearest

[00:14:00] Speaker 01:
statement of what you believe to be a legally erroneous legal proposition.

[00:14:43] Speaker 01:
It's what I was looking at.

[00:14:45] Speaker 01:
So tell me if I'm wrong.

[00:14:46] Speaker 04:
According to the ruling about that the vocational assessment is not required.

[00:14:50] Speaker 04:
Yes.

[00:14:51] Speaker 04:
It's a copy.

[00:14:52] Speaker 04:
It's 19.

[00:14:52] Speaker 03:
19, not 14.

[00:14:54] Speaker 03:
14 was the actual board page number.

[00:14:58] Speaker 03:
Oh, right.

[00:15:00] Speaker 03:
It's okay.

[00:15:01] Speaker 02:
Wait, J and 19, that's not... It's this page.

[00:15:05] Speaker 04:
J and 19, board page 14.

[00:15:08] Speaker 04:
Confusing.

[00:15:09] Speaker 02:
I'm sorry, I got confused between the board and the page.

[00:15:12] Speaker 03:
It's in the very top paragraph after the discussion about Smith, and it says the board found, given its finding that sedentary employment would be possible despite the appellant's need disability, that a vocational assessment would not provide any benefit and therefore is not required.

[00:15:40] Speaker 03:
And the board then went on to find that that was an adequate statement of reasons or basis.

[00:15:44] Speaker 03:
That cannot be correct under the proper interpretation of 416B, because the obligation to do what the Veterans Court calls a vocational assessment is mandatory.

[00:15:56] Speaker 03:
It is not permissive.

[00:15:59] Speaker 02:
Well, the problem is, are we reading the same thing?

[00:16:03] Speaker 02:
B says the board will include a full statement, blah, blah, blah, and all other factors having a bearing on the issue.

[00:16:10] Speaker 02:
So they talk about education and vocational attainment.

[00:16:15] Speaker 03:
Correct.

[00:16:16] Speaker 02:
And what is it?

[00:16:20] Speaker 02:
Isn't vocational attainment different than a vocational assessment?

[00:16:25] Speaker 02:
I mean, was there any dispute about what his vocational attainment was?

[00:16:30] Speaker 03:
Well, let's be clear, Your Honor.

[00:16:32] Speaker 03:
In the regulation, when they use the term board there, they're referring to the rating board.

[00:16:37] Speaker 03:
Under this regulation,

[00:16:38] Speaker 03:
there is a referral that is made to the director of compensation services who makes the ultimate determination.

[00:16:45] Speaker 03:
In this case, neither the VA regional office nor the board of veterans appeals chose to make that referral.

[00:16:52] Speaker 03:
So this case is just about making the referral so that the director can make the determination.

[00:16:59] Speaker 03:
So this was, as it were, cut off at the pass.

[00:17:02] Speaker 03:
It was not made a referral because there was no

[00:17:08] Speaker 03:
reference in any of the documentation that indicated what the Veterans Court called a vocational assessment.

[00:17:16] Speaker 03:
I agree with you that vocational attainment and vocational assessment are probably near equivalents, but in this context it's also about their education, in this case a high school education, and their employment history, which in this case was pre-service, a grocery store,

[00:17:35] Speaker 04:
uh... clerk and post-service a job with the post office doing guard work and uh... me mr carby you're not arguing that a vocational assessment is required as mandatory no no you can't actually not and so that uh... that the board is free in an appropriate case based upon the record before them to determine that a vocational assessment is not necessary but not without consideration as mandated by the regulation

[00:18:02] Speaker 03:
of the veterans education, his vocational attainment, and I can't remember what the third one was.

[00:18:09] Speaker 04:
What in this record suggests that they didn't do that?

[00:18:12] Speaker 03:
The board decision itself, Your Honor, it is completely silent about any of those issues.

[00:18:18] Speaker 04:
That doesn't necessarily mean they didn't consider them.

[00:18:22] Speaker 03:
But the argument made below was that the 7104D duty to provide an adequate statement of

[00:18:29] Speaker 03:
reasons or bases had not been made by the board in its decision.

[00:18:35] Speaker 03:
The court rejected that, saying that it wasn't required to do that.

[00:18:40] Speaker 03:
So the question here is, is there a mandate in 416B or is there not a mandate?

[00:18:54] Speaker 00:
I'd like to first address the argument that Mr. Pedersen's attorney made in his brief, which if you open up his first brief at A, is simply stated, the Veterans Court relied upon a misinterpretation of 4.16 when it required Mr. Pedersen to submit affirmative evidence that his educational and occupational histories are incompatible with sedentary employment.

[00:19:16] Speaker 00:
Comparing that to JA 18.

[00:19:25] Speaker 00:
which is the portion of the Veterans Court decision that actually discusses the TDIU claim.

[00:19:36] Speaker 00:
It states only that the appellant, Mr. Peterson, had failed to point to any evidence in the record of proceedings.

[00:19:44] Speaker 02:
I'm mixed up on my pages, so you're going to have to turn on your page.

[00:19:47] Speaker 00:
I'm sorry.

[00:19:47] Speaker 00:
JA 18, which is page 13 of the Veterans Court.

[00:19:50] Speaker 00:
Page 13.

[00:19:55] Speaker 00:
Certainly, my understanding of the argument presented in Mr. Peterson's brief was that the first full paragraph on this page was where the legal error happened, which is that the argument was that this language, quote, Mr. Peterson has not pointed to any evidence in the record of proceedings demonstrating that his level of education and his past employment experience categorically preclude him from sedentary employment that would provide more than marginal income.

[00:20:22] Speaker 00:
That is the issue that was presented in the opening brief as containing an erroneous legal interpretation of 4.16 as somehow inappropriately requiring Mr. Peterson to have provided affirmative evidence.

[00:20:38] Speaker 00:
And as we point out in our briefs, all this statement here is that when conducting their clearly erroneous review, the Veterans Court simply stated, where you're not challenging the duty to assist,

[00:20:50] Speaker 00:
And where you can see you are mentally and physically capable of sedentary employment, you need to at least point to something in the record that will allow us to find that the board got this wrong, and you haven't done that.

[00:21:02] Speaker 02:
And that's... Well, look at the statement above that.

[00:21:05] Speaker 02:
Look at the end of the first paragraph that continues on.

[00:21:09] Speaker 02:
The board concluded, and I think the Court of Veterans Claims embraces this conclusion at some point,

[00:21:15] Speaker 02:
that while his work experience might limit his employment opportunities, it does not seem that the lack of a college degree would preclude the veteran from all sedentary employment.

[00:21:29] Speaker 02:
How does one satisfy the burden that you would be precluded from all sedentary employment?

[00:21:37] Speaker 00:
Well, there needs to be some identification by the claimant as to what

[00:21:42] Speaker 00:
he believes he's prevented from doing as a result of his disabilities.

[00:21:46] Speaker 00:
And here we're talking about two 20% disabled needs.

[00:21:50] Speaker 00:
The evidence that the board discusses in their board decision make clear repeatedly the examiners said you are capable of all sedentary employment.

[00:22:00] Speaker 00:
There are circumstances where someone is incapable of certain types of sedentary employment because they can't sit for long periods of time.

[00:22:08] Speaker 00:
Here the determination was

[00:22:10] Speaker 00:
that Mr. Peterson can in fact do all forms of sedentary employment.

[00:22:13] Speaker 00:
That's not what the sentence says, though.

[00:22:15] Speaker 02:
This flips it.

[00:22:16] Speaker 02:
This says they would preclude the veteran from all sedentary employment.

[00:22:20] Speaker 02:
Is that the same thing?

[00:22:22] Speaker 00:
I think he would need to demonstrate that the evidence would need to demonstrate that he could not obtain any sedentary employment.

[00:22:32] Speaker 02:
Okay, so let's assume I don't have a high school diploma and I've only worked in janitorial

[00:22:38] Speaker 02:
And then, so I'm now stuck because of my disability with sedentary employment.

[00:22:43] Speaker 02:
And let's assume I haven't had a job in five years, and I can demonstrate to you that I've applied for 25 jobs as a secretary, as a receptionist, blah, blah, blah, and they've all rejected me, either because I don't have a high school diploma or because I have no prior experience, relevant experience.

[00:23:03] Speaker 02:
Is that, in your view, is that sufficient?

[00:23:07] Speaker 00:
It certainly sounds like it would be a convincing case to make, but the facts that you all changed aren't present here.

[00:23:14] Speaker 00:
He did not submit evidence that he applied for and cannot get a sedentary job because of his education or his employment history.

[00:23:20] Speaker 00:
And he has a high school education, and he has an employment history showing that he can hold jobs with federal agencies.

[00:23:29] Speaker 00:
So the facts that you changed are the critical facts that could demonstrate that, in fact,

[00:23:33] Speaker 00:
incapable of having sedentary employment, but those facts are not here.

[00:23:38] Speaker 00:
And I think we're straying a little bit into the reasons and bases argument.

[00:23:42] Speaker 02:
Well, what about Mr Carpenter's argument this morning on the last phrase in B, which talks about the requirement that the rating board now include a full statement on the service connected disabilities employment history, educational and vocational attainment, and all other factors.

[00:24:00] Speaker 02:
So what did they say with respect to vocational attainment?

[00:24:07] Speaker 00:
And again, I think this is a question that is beyond this court's jurisdiction.

[00:24:12] Speaker 00:
Because again, whether or not the board provided an adequate reasons and bases is not a question that this court can review.

[00:24:19] Speaker 00:
The Veterans Court looked at what the board stated at JA.

[00:24:22] Speaker 01:
Can I just interrupt and just tell me why this is wrong?

[00:24:26] Speaker 01:
One way, I guess,

[00:24:28] Speaker 01:
and may have understood Mr. Carpenter's argument is that at, I guess it's the top of J19, top of 14 in the original, when the court in the last sentence of the carryover paragraph says the court finds that the board has provided an adequate statement of its reasons, what it is doing is saying that the description of the board's finding in the immediately preceding sentence is legally adequate

[00:24:58] Speaker 01:
And I take it that Mr. Carpenter is saying it is not legally adequate to omit a vocational assessment in some circumstances here.

[00:25:17] Speaker 00:
If he had presented that argument

[00:25:20] Speaker 00:
And I have to think through it because the fact is that he's conceded all along.

[00:25:23] Speaker 01:
And let me say it a little more specifically.

[00:25:25] Speaker 01:
Since the second to last sentence of the paragraph says, the court found, the board found, given its finding that sedentary employment would be possible, the board found that a vocational assessment would not provide any benefit and therefore is not required.

[00:25:43] Speaker 01:
One way, I guess, of making the legal point is that it is legally erroneous to say you never need

[00:25:50] Speaker 01:
a vocational assessment when you have the possibility of sedentary employment.

[00:26:00] Speaker 01:
And that is legally erroneous.

[00:26:04] Speaker 01:
That's legally erroneous.

[00:26:05] Speaker 01:
It's incorrect because it's categorical.

[00:26:09] Speaker 00:
If they had made that categorical statement, that could possibly be a legal interpretation certainly this court could review.

[00:26:16] Speaker 00:
I think what Mr. Carpenter's argument is doing is it's combining the

[00:26:20] Speaker 00:
explanation that the board gave for why it did not feel a vocational assessment was necessary in this case under the duty to assist, with the more holistic view that the court is taking as to the board's reasons and bases throughout for its determination that Mr. Peterson is not entitled to TDIU.

[00:26:39] Speaker 00:
The vocational assessment piece is at JA 59, and it is after the fact.

[00:26:44] Speaker 00:
It is after the board has already discussed the evidence

[00:26:47] Speaker 00:
all the medical records, including SSA records, where they found that he was not unemployable.

[00:26:52] Speaker 00:
It said that they find that, as stated, that the veteran is capable of performing physical and mental acts, and that he's not precluded by his education and employment.

[00:27:02] Speaker 00:
It then goes on to say that this court's decision in Smith requires the board to consider whether vocational assessment is required.

[00:27:10] Speaker 00:
And I'm reading from the first full paragraph on JA 59.

[00:27:14] Speaker 00:
It explains why in the board's determination a vocational assessment was not required.

[00:27:19] Speaker 00:
And that's all that's required under this court's decision at Smith, is that the board make a determination as to whether a vocational assessment is necessary in a given case.

[00:27:29] Speaker 00:
And that is not a, again, the Veterans Court can review that determination.

[00:27:38] Speaker 00:
But this court can't review the Veterans Court review of that, because that is an application of law of fact.

[00:27:43] Speaker 02:
What's bothered me about this case, and I don't think it's an argument Mr. Carpenter is making, because he seems to embrace the language that is used, which is capable of performing sedentary work.

[00:27:59] Speaker 02:
I see a disconnect between the language used in the regulation, which is not whether you're capable of performing certain kinds of work,

[00:28:06] Speaker 02:
It says whether you're unable to secure in both A and B. The standard is unable to secure gainful employment, not whether you're capable of doing it, but whether you're able to secure it.

[00:28:18] Speaker 02:
To me, there's a little bit of a difference.

[00:28:20] Speaker 02:
Capable seems more generic and generally capable of doing anything.

[00:28:25] Speaker 02:
But whether you are not, it seems to me that unable to secure gainful employment is a little stronger.

[00:28:33] Speaker 02:
Do you understand my point?

[00:28:33] Speaker 00:
I do, but I think this strays into an argument that came up in Smith, which is whether or not this is an assessment of whether the individual can actually obtain a job in the city they live in.

[00:28:44] Speaker 00:
And the court there said that's for the SSA context.

[00:28:48] Speaker 00:
Here, it's really are they mentally and physically capable of securing?

[00:28:52] Speaker 00:
And yes, you can read secure to actually apply for, get a job, and become employed.

[00:29:00] Speaker 00:
I think in this context where the disability

[00:29:02] Speaker 00:
review is the effects of their service-connected disabilities on their capability, it's can they apply for a job?

[00:29:09] Speaker 00:
Are they physically and mentally capable of going through the tasks required to secure a position?

[00:29:15] Speaker 00:
And then if they do, can they maintain that position?

[00:29:18] Speaker 00:
Here, it would be sedentary employment.

[00:29:20] Speaker 00:
So maybe I'm answering your question or not.

[00:29:23] Speaker 02:
No, you do, although I don't want you to forget your answer to my hypothetical where there certainly are circumstances where the veteran would be able to demonstrate

[00:29:32] Speaker 02:
that he's tried to get a job, and it's a practical matter.

[00:29:34] Speaker 02:
And it's not just because the unemployment rate is 10%.

[00:29:38] Speaker 02:
It's that I've tried and I've been rejected because I don't have the necessary qualifications and I don't have the necessary experience.

[00:29:46] Speaker 00:
The ability to actually become employed can be considered.

[00:29:50] Speaker 00:
I mean, the regulation is clear that work history and education needs to be considered.

[00:29:56] Speaker 00:
But I'm not sure where that line is drawn.

[00:29:58] Speaker 00:
I don't think this is the right case for that determination.

[00:30:01] Speaker 00:
but certainly our circumstances where someone shows up with the hypothetical that Your Honor described.

[00:30:06] Speaker 00:
And I would say in that instance, it's quite likely that the VA would have gotten a vocational assessment in that instance because someone with those unique characteristics would probably present a unique situation that would require something beyond the board's expertise, which is what the standard in Smith says for when it's necessary to obtain a vocational assessment

[00:30:29] Speaker 00:
I just want to respond to one more thing that Mr. Carpenter noted when he was up here.

[00:30:35] Speaker 00:
He said that the veteran should be allowed to rely on the assertion that they are incapable of performing or securing or maintaining sedentary employment.

[00:30:47] Speaker 00:
And that argument is essentially, it's wrong in two reasons.

[00:30:52] Speaker 00:
One, there's a presumption of soundness that applies to a veteran here.

[00:30:55] Speaker 00:
So the VA doesn't go in presuming

[00:30:58] Speaker 00:
that the person is fully disabled.

[00:31:00] Speaker 00:
And it's secondly wrong, because under SCOZIN, and this is sort of the same argument that Mr. Carpenter made in SCOZIN, it's that under 5107A, as long as you allege something, you are not actually required to then support it with evidence, either by producing evidence or by pointing evidence out.

[00:31:18] Speaker 00:
And so I think the argument that the veteran should be allowed to simply rely on the assertion of unemployability has already been rejected by this court.

[00:31:27] Speaker 02:
And could you just have a minute, I don't want to prolong this, but Mr. Carpenter spent some time talking about, I don't have the language in front of me, the portion of A which talks about seemingly maybe to define substantially gainful employment, that if you make stuff under the poverty level, that's not going to come against you or so forth.

[00:31:44] Speaker 02:
Do you think that has any relevance to this?

[00:31:46] Speaker 00:
I don't think it does, and I will admit that I'm not as familiar with the case law about that portion of 4.16A.

[00:31:53] Speaker 00:
I certainly didn't read it in preparing for this argument because it wasn't

[00:31:56] Speaker 00:
part of the issues that were briefed.

[00:31:58] Speaker 00:
So there is no allegation below that he's capable of getting sedentary employment but that it would not provide a marginally adequate income.

[00:32:07] Speaker 00:
The fact is that JA 393, there's a Social Security Administration report here that says that looking, you know, the Social Security Administration goes further.

[00:32:18] Speaker 00:
They look at whether there are in fact sufficient jobs available for someone applying for disability and they identify

[00:32:25] Speaker 00:
using Iowa labor statistics, 475 photographic processing operator jobs, and 29,000 general office assistants.

[00:32:34] Speaker 00:
Those are either jobs or positions.

[00:32:35] Speaker 00:
I'm not 100% clear.

[00:32:37] Speaker 00:
There isn't any evidence in the record about sedentary jobs that he could get that don't provide marginal employment income.

[00:32:49] Speaker 00:
It sounds a little bit like he's

[00:32:52] Speaker 00:
trying to reiterate the argument in Smith, that to satisfy that marginal employment threshold, you need a vocational expert who can look at how much these sedentary jobs would pay.

[00:33:05] Speaker 00:
And again, I think Smith makes clear that only when it's necessary to decide the claim is a vocational assessment necessary.

[00:33:12] Speaker 00:
Thank you.

[00:33:12] Speaker 00:
Thank you, Your Honor.

[00:33:14] Speaker 00:
I'll let you store a couple minutes of your time.

[00:33:21] Speaker 02:
Thank you, Your Honor.

[00:33:32] Speaker 03:
I'd like to begin with Smith.

[00:33:34] Speaker 03:
Smith is A, a duty to assist case.

[00:33:37] Speaker 03:
B, it involved a question of whether or not the VA was required to obtain a vocational opinion.

[00:33:45] Speaker 03:
This case is about the interpretation of 416B when it uses the language that the Veterans Court characterized as a vocational assessment.

[00:33:56] Speaker 03:
Those are two entirely different concepts.

[00:33:59] Speaker 03:
A opinion under the duty to assist

[00:34:02] Speaker 03:
is something that the veteran in Smith was trying to impose upon the VA.

[00:34:07] Speaker 03:
Here we have a VA regulation that expressly imposes the obligation on the rating board when making a referral to make a full statement that the Veterans Court called a vocational assessment as to the veteran's employment, his education, and his vocational attainment.

[00:34:28] Speaker 03:
The key here is that this is a regulatory mandate, something the VA imposed upon itself.

[00:34:37] Speaker 03:
Next is the distinction that Your Honor correctly drew between the shifting of the burden to the veteran to demonstrate his ability to do sedentary work that will produce substantial gainful occupation.

[00:34:55] Speaker 03:
The burden here is on the VA to show that he is not capable.

[00:35:01] Speaker 03:
He is entitled to it and the record clearly demonstrates that from 2002 to the present he has had no earnings because he has been unable to work.

[00:35:13] Speaker 03:
The VA takes that favorable evidence along with his lay evidence that he is not capable of getting a job due to his service-connected knee disabilities for which he lost his job at the post office and has not worked since 2001 and then flips that burden and says, you must show us, the veteran court says, you must show us, you must point to something in the record that says that you would not earn.

[00:35:41] Speaker 03:
substantial gainful occupation.

[00:35:43] Speaker 03:
That is not the obligation under the regulation.

[00:35:46] Speaker 03:
One final thought, that is, is that this case has always only been about the board considering these.

[00:35:55] Speaker 03:
We are not asking this court to determine that there must be an award.

[00:36:01] Speaker 03:
The interpretation simply is whether or not 416B requires the board to consider what the Veterans Court called a vocational assessment.

[00:36:11] Speaker 03:
but what is described in the VA's own regulation as consideration of the education, the vocational attainment, and the employment history.

[00:36:23] Speaker 03:
And that simply was not done in this record.

[00:36:26] Speaker 03:
And the Veterans Court said that was OK.

[00:36:29] Speaker 03:
And it is not OK.

[00:36:31] Speaker 02:
Thank you very much, Your Honor.

[00:36:32] Speaker 02:
Thank you.

[00:36:32] Speaker 02:
We thank both sides.

[00:36:33] Speaker 02:
The case is submitted.

[00:36:34] Speaker 03:
That concludes our proceeding.