On May 20, 2016, the U.S. Court of Appeals for Veterans Claims issued a precedential decision that clarifies the Board’s duties in adjudicating veterans’ entitlement to total disability based on individual unemployability (TDIU). Ortiz-Valles v. McDonald, No. 14-2540, — Vet.App —, (May 20, 2016).
The Board denied the Veteran entitlement to TDIU because it found his service-connected disabilities did not prevent him from securing or following a substantially gainful occupation. Medical opinions indicated that the Veteran could perform some work but only on a part-time sedentary basis with work restrictions or accommodations.
On appeal, CCK argued that the Board erred when it did not consider whether the Veteran was only capable of marginal employment. Because VA regulations instruct that marginal work is not substantially gainful, a veteran whose service-connected disabilities prevent him from performing work that is more than marginal should be entitled to TDIU.
After considering the parties briefs and hearing oral argument from CCK’s Barbara Cook, as well as VA counsel, the Court held that “when the facts of the case reasonably raise the issue of whether the veteran’s ability to work might be limited to marginal employment,” the Board must “explain why the evidence does not demonstrate that the Veteran is incapable of more than marginal employment.” Slip Op. at 7
Significantly, a veteran does not need to be employed before the Board is required to consider whether he or she is only capable of marginal employment: “It is clear that the language of § 4.16(a) focuses on a veteran’s capabilities and not his current employment status.” Id. at 7.
The Court also held that the terms in the regulation: “substantially gainful occupation” and “substantially gainful employment” were synonymous. Id. at 6. Although the regulation does not define the term “substantially gainful occupation,” the Court encouraged VA to do so. Id. at 8-9.