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CCK Court Win: Precedential Decision on VA Unemployability

  1. VA’s lack of a full definition for TDIU
  2. In the words of the U.S. Court Appeals for Veterans Claims (CAVC)
  3. The facts of the Mr. Ray’s case
  4. CAVC’s decision and definition “substantially gainful employment”
  5. Takeaways: What Ray v. Wilkie means for veterans?

Video Transcription.

Zach Stolz: Good morning, coming to you from Providence Rhode Island, this is Zach Stolz with Chisholm Chisholm & Kilpatrick. Joining me are my colleagues Brad Hennings and April Donahower and we are here today to talk with you very briefly about a presidential case that was handed down just a couple days ago. It is called Ray versus Wilkie. It involves very important questions revolving around total disability based on individual unemployability which is a very commonly sought means of a VA compensation by some of the more severely disabled veterans in our country. We’re going to talk just very briefly about what is it. It’s an extraordinarily important holding. The court has articulated some– a new interpretation of the way the regulation that pertains to TDIU reads. It has provided some clarity to the Department of Veterans Affairs and we’re going to kind of walk through a little bit of what it means. Again, this decision just came out a couple days ago so bear with us. We don’t have it entirely, expertly down to a science of how this is going to play out in real life because it hasn’t yet but it will in the coming weeks and months and years. So we’ll talk a little bit about it today. You will also be able to read this decision at There is a link to the oral argument there. It was done by partner in this firm, Barbara Cook. This is a CCK case and it was done in our partnership at the, with the Disabled American Veterans and the Court of Appeals for veterans claims. So, with that, let’s get into what the case was all about.

Basically, for years, the Department of Veterans Affairs has not fully defined the language of the regulation which says, that a veteran is entitled to a 100% rating essentially. A total disability rating if he or she is unable to secure or follow a substantially gainful occupation. Not necessarily sure what all those words mean together so I’ll read to you briefly from what the Court of Appeals for veterans claims recently said about it. Judge Allen writing the majority decision in the case and then April who handle the case in the pleading stage for our firm is going to talk a little bit about what she was doing in that process. Brad is going to talk a little bit about kind of the practical effects and what the court really articulated as the standard. So to set up the issue, here’s what the court wrote. “The language of section 4.1 6(b), that is the regulatory section that deals with total disability based on individual unemployability — is ambiguous. The regulation instructs that all that veterans who are unable to secure and follow a substantially gainful occupation because of their service-connected disabilities will be rated totally disabled without defining what either a substantially gainful occupation is or what it means to be unable to secure and follow such an occupation. Section 4.1 6(a) — which is another part of the regulation — provides that substantially gainful employment is employment that is not marginal with marginal defined as employment producing an annual income below the federal poverty threshold for one person. That’s a lot of words and so we’ll get into what that means practically for human beings that are seeking this disability compensation. April can you talk a little bit about the background on the case and how we even got here.

April Donahower: Sure. So, we started representing Mr. Ray in an appeal of the Board’s, February 2017 decision where it denied him entitlement to TDIU. The Board found that Mr. Ray’s service-connected disability is precluded physical employment. So that that piece of it was out of the picture from the Board’s finding. But it did find that sedentary work was consistent with his education and training and also said that he could physically do that kind of work if it involved no physical activity and if he could alternate between sitting and standing. So just a little bit of background on Mr. Ray, he had a high school education and one semester of college. He worked until September 2004 mostly in construction on an oil rig, etc. Once his service-connected disabilities physically precluded that kind of work, he did obtain some training in typing other office skills. But the record that the Board had was unclear as best as to what his level of success in and gaining those additional skills were. So, one thing leads to another and we got to this Board decision that says that he can do substantially gainful work that’s consistent both with his physical limitations and with his skills background. So, then CCK stepped in and appealed.

Zach: And what did the court tell us about substantially gainful occupations?

Brad Hennings: What they really did was they broken down into something that’s a little bit easier for everyone to understand and follow which is great. We’re always looking for guidance. We’re looking for tests and rules so that every knows the rules of the road. So, they have said that substantial, unable to secure and follow a substantially gainful occupation has two components. One, is an economic component and one is non-economic component. As you discussed the economic component, just means that a veteran is earning more than marginal income outside of protected environment as determined by the US Department of Commerce as the poverty threshold for one person. Now that number adjust but it’s around 9 or $10,000 give or take currently per year.

Now, for the big issue in this case was what they call the non-economic component which is, how do you actually determine whether a veteran can work? So, putting aside the economic piece, what is it that we need to look to determine whether a veteran can actually secure and follow a substantial gainful occupation? So, what they said was they’re providing some guidance by looking at the following factors and they cited both to their own case law as well as Social Security regulations and their other — Social Security regulations, their own case law and the party’s arguments. So, they said attention must be given to the veterans, history, education, skill and training which is uncontroversial. That’s typically what the Court of Appeals for Veterans Claims has always said needs to be looked at. And VA agrees because it’s in the regulation. Here’s the interesting part, they said, “You should also look at whether the veteran has the physical ability both exertional and non-exertional to perform a type of activities which includes, sedentary light, medium, heavy or very heavy — don’t ask me to define these terms right now —

Zach: Now, I have more terms to define.

Brad: Right and the factors that may be relevant to that inquiry include, but are not limited to the veteran’s limitations concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing and reaching as well as auditory and visual limitations. Now, again these are factors that often come up in Social Security determinations because they’re doing something very similar about whether individuals can work on Social Security System. So that’s the physical piece and then there’s a mental piece to this determination. Those factors include, but are not limited to the veteran’s limitations involving memory, concentration, ability to adapt to change, handle workplace stress, which is very important for psychiatrically challenged veterans, get along with co-workers and demonstrate reliability and productivity. So, by discussing these potentially relevant factors, the court said they don’t create checklist that must be necessary run through in every case instead — and this is the key point –discussion of any factor is only necessary if the evidence raises it. That’s really important for veterans and advocates to understand that they should, and the court has said — they should address all of these various factors to show the VA, this is why I cannot obtain secure, follow a substantially gainful occupation. Basically, this is why I can’t work due to my service-connected disabilities.

Zach: The bottom line after all of that, and the decision is really quite long, it’s over 20 pages long but the main takeaway, at least for me so far — I’d ask my two colleagues which I meant, if they think anything different — is for year, for over 30 years now, VA has kind of gotten away and has asked with some reasoning to get away with, with just saying, “Look, we know a veteran is totally unemployable kind of when we see it.” They used a pretty broad terms, substantially gainful employment secure and follow and they were able to highly individualized the total disability assessment and what this decision does, is the court is finally telling the Department of Veterans Affairs, “Don’t do that anymore. Here are some standards so that it can be more consistent.” So that veterans when they apply for a total disability rating which again, compensates somebody at the 100% level essentially, when they apply they should know the rules of the road and this is the Court of Appeals for veterans claims, finally giving a little bit more of a road map so that each veteran can be treated fairly and consistently throughout a very large adjudication system at the VA regional office. So that was my main take of it. That’s a more simplistic takeaway of this rather than getting into, although it is important for veterans and their advocates to understand all the intricacies of this as they’re going to the process but just to understand just why this case is important, I think, that’s why. Any final thoughts, April?

April: I would agree. I just, I think the court laid out really clearly the history of all of the opportunities that had given to VA to define this term and ultimately said that we can’t review any given Board decision if we don’t know the meaning of the term that’s being applied here. So the time has come to put some meaning on that terms so that we can apply that to any given Board and see whether it correctly determined that a given veteran did or did not meet that standard.

Brad: As a former adjudicator at VA, as a former veterans law judge, I think it’s a wonderful decision because it no longer hides the ball for everybody. No one hides it from veterans and it doesn’t hide it from the adjudicators. It was something I always struggled with. How do I adequately assess a veteran’s ability to work? This provides a road map for things to look at and I think that the more transparent we can be and the more and the clearer we can be in these rules and road maps the better for everyone.

Zach: We’re very hopeful that this was a very good day for veterans across the country. We believe it will be. We believed the court has given a lot of good guidance. It will help both the Departments of Veterans Affairs and veterans go down the road of achieving the benefits to which they are entitled and that they deserved. Thank you very much for joining us today. From Providence Rhode Island, this is Zach Stolz, Brad Hennings, and April Donahower.




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