Summary of the Case
Mr. Withers served in the United States Marine Corps between 1968 and 1969. While serving in Vietnam, he was wounded during combat. Later, he was granted service-connected compensation for gunshot wound residuals to the right arm and leg, lower back problems, and PTSD. In 2004, Mr. Withers began missing work because of the physical and psychological complications arising from his service-connected disabilities. As a result, he stopped working in December of 2004, and then applied for TDIU in 2005. Mr. Withers was originally denied in 2008, but continued to appeal to the Board. After obtaining several medical opinions, the Board upheld this denial.
Board denies Veteran’s claim for TDIU
In 2016, the Board issued a decision denying the Veteran’s claim for TDIU. In its decision, the Board relied in part on the fact that none of the VA examiners concluded that the Veteran’s service-connected disabilities precluded him from limited or sedentary employment. Additionally, the Board asserted that Mr. Wither’s college education and three-decade history as a sales manager strongly suggest that he has the training to perform sedentary work.
CCK argues for a definition of sedentary work
CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied TDIU. CCK argued that the Board simply reiterated the examiner’s conclusions that Mr. Withers is capable of sedentary work without explaining the concept of sedentary work in light of his specific physical and psychological limitations. In other words, the Board did not explain what “sedentary work” means when relying on it as the basis for denial. CCK further asserted that the Court should order the Secretary to adopt the Social Security Administration’s definition of sedentary work until the Secretary establishes his own set definition.
CAVC agrees with CCK’s arguments
CCK argued, and the Court agreed, that if the Board bases its denial of TDIU on the conclusion that a Veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of a specific case. Specifically, the Board must define the meaning of sedentary work and address how it factors into the veteran’s overall disability picture, vocational history, and ability to secure or follow a substantially gainful occupation. Additionally, before the Board can rely on an examiner’s finding that a veteran is capable of sedentary work to deny TDIU, it must also ensure that the finding is consistent with the medical evidence as a whole.
This precedential decision represents the first occasion in which the Court has articulated the proper analysis for the Board to undertake when addressing the concept of sedentary work. While CCK urged the Court to establish a definition for sedentary work, the Court maintained that the question of importance is not what sedentary work means, but what connection sedentary work bears to the requirements of TDIU. Ultimately, the Court remanded the case in order for the Board to establish adequate reasons and bases for its decision, and undertake any additional fact finding necessary to accomplish that task.
Bailiff: All rise. The United States Court of Appeals for Veterans Claims is now in session. Honorable Robert N. Davis presiding all of these business before this court by near, each shall be heard. God bless the United States and this honorable court, please be seated.
Judge Davis: Good morning. I am Judge Davis, to your right is Judge Meredith and to my left is Judge Toth. We’re hearing the day in a matter of Withers against Shulkin, docket number 16-3543. Will counsel for both parties, please note your appearance for the record.
Barbara Cook: Thank you to Judge Davis, I’m Barbara Cook. On behalf of the appellant, of the law firm of Chisholm Chisholm & Kilpatrick, with me at counsel table is Layi Oduyingbo also of the firm.
Judge Davis: Good! Welcome here. Good to see you, Miss Cook.
Carolyn Washington: Appellation here at counsel table is Deputy Chief Counsel Carolynyn Washington.
Judge Davis: Good. Welcome here. Ms. Washington, always good to see you all as well. I love oral arguments because it takes me back to law school days except in this case I’m the student and you all are the professors. So, I got to ask questions and you get to enlighten me. Anyway, are both parties ready to proceed?
Barbara: Yes, your honor.
Carolyn: Yes, your honor.
Judge Davis: All right. Each party will have 30 minutes to present your respective arguments. Counsel for the appellant, do you wish to reserve any time for rebuttal?
Barbara: I do, I wish to reserve 10 minutes.
Judge Davis: Okay, so noted. Thank you. You may proceed Ms. Cook.
Barbara: Thank you, your honor. May it please the court, the secretaries, one dimensional definition of sedentary employment is inadequate because no job is just sitting. Instead, as we discussed in the supplemental pleading, sedentary work has many parts. It has what is done while the person is actually sitting using his hands. Does he have to move his neck? Does he have to bend to pick things up? To reach? Does he have to lift things? It includes what is done when not sitting. Does he have to walk, climb, bend, stoop? It also includes what is required throughout the workday such as which we and social security calls non-exertional aspects of work such as reliability. He has to show up. Such as concentration and focus on productivity. He has to actually do the job that is assigned, but the secretary, one dimensional as I said, definition does not account for those components. It doesn’t account for the full scope of sedentary employment and as a result, it provides no guidance to anyone involved in the process. Not to the examiners, not to the adjudicators, not to veterans and not to this court.
Judge Davis: Miss Cook, let me just cut to the chase here. Excuse me, 4.16 says nothing about sedentary work, but it does say something about substantially gainful occupation and really that’s the crux of the matter, isn’t it? Doesn’t the court’s case law really define substantially gainful employment, occupation and do we need to know more than that?
Barbara: To answer to, to put that into –
Judge Davis: I’m sorry –
Barbara: You’re right, the regulation does not say sedentary work or sedentary employment. It does refer to substantially gainful occupation and a substantially gainful occupation to determine whether a person can do a substantially gainful occupation. VA, like social security, has to figure out what are the components of that work and so that’s where we get into the exertional sedentary, medium light as well as the non-exertional. In fact, that’s what the Board looked at here was whether the veteran could do, they decided that he could do sedentary or light or limited work. But so the physical exertions are one subset of that. So in some ways, one might say that the secretary or that the board was rather interpreting the term substantially gainful occupation. But as your second question, the second part of your question, whether the court has already defined the term, the answer is no. The court has looked at it in terms of economic factors, recognizing that income below the poverty level is not marginal. Recognizing that where an individual is fully productive as with the case in Faust, that the fact that he could earn more money but for his service-connected disability does not entitle him to TDIU benefits, but those are all economic considerations and so the court has not yet defined sedentary work or substantially gainful employment within the context of what are the exertional and non-exertional requirements for work. In fact, that is shown in this case, because the Board in fact did not use any definition that the court had ever provided simply because the court has not yet done that. But the result was, that everyone in this case was using a different definition. They’re just sort of throwing words around. They’re kind of at a loss. For example, the 2010 C&P examiner, that is at pages 7-13 and 7-15, on the record, said that the veteran could do sedentary or light work, but he couldn’t have too strenuous or sustained work. But sustained is not a synonym for strenuous, but that’s how he’s treating it. People could– he could do– the problem doing sustainable could exist even if he is only able to do sedentary light work, which is in fact one of the problems that Mr. Withers has. Suddenly the Board throughout its decision a referenced the veteran’s ability to do light or sedentary work that’s at page 11 and 16 of the Board’s decision. But then at page 15 it says, but he could do limited work and again, limited work is a different concept from light or sedentary. As we pointed out in our supplemental pleading, the general counsel, also confused ideas or merged ideas when they referred to sedentary being much sitting or sometimes mostly sitting. Again, these are different concepts.
Judge Davis: But counsel isn’t the– I mean the classic statutory and regulatory interpretation requires that we look at common meanings of words if there are not in a statute or regulation if they’re referred to. And the dictionary definition of sedentary is pretty generally accepted, isn’t it? I mean, do we really need to start defining terms on even on the regulatory structure?
Barbara: Well, I think the court does need to do this, your honor, because of the confusion that exists. As I described in terms of how these cases are adjudicated and there is no without a clear definition, there is no clear standard by which to decide. What does it mean when we are told for example, that the veteran can only walk for 10 or 15 minutes. Does that or does that not mean that he couldn’t do sedentary work? The only way one knows the significance of that is by knowing what sedentary work requires. The fact that he could only stand for 15 to 30 minutes. Does that or does that not much mean that he can do sedentary work? The secretary’s definition doesn’t account for this because he doesn’t talk about the standing piece of sedentary work, but that’s what is required and in terms of whether to use the– just the dictionary definition, the answer has to be no. Because first of all, the term is not sedentary. The term is sedentary work or sedentary employment. It’s not just the adjectives.
Judge Davis: Don’t you have an idea of what that means?
Barbara: Well the problem is–
Judge Davis: I have an idea what that means.
Barbara: Well, the problem is that we have all ideas about what that means –
Judge Davis: But if we could begin to define the way you’re asking council, we end up with, if the person can stand in 19 minutes as opposed to 18 minutes, does that take them out of the category?
Barbara: No, no, your honor. That’s not what I’m saying. I’m saying that there are certain requirements, definitions, that the Department of Labor has provided in the dictionary of occupational titles.
Judge Davis: But this is the VA.
Barbara: This is the VA but –
Judge Davis: Right. Those regulations, so they be applied to this arena of veteran’s benefits?
Barbara: Unless, until VA comes up with an authoritative definition that takes into account these different components of work. To say that sedentary work is just sitting, is simply inadequate because of the huge gaps.
Judge Davis: But has anybody said that? That’s not what I imagined. I figured if someone who’s sedentary, is going to get up and down on occasion. I don’t suspect them to run a 40-yard dash, but I do suspect that they will be able to work at a desk more often than not. Maybe not lift 50-pound boxes of goods but I suspect they could do some paperwork at a desk. Isn’t that what comes to mind when you think about sedentary work?
Barbara: Well, when people are working at desk, your honor, you’re talking about whether they have a– you’re not just talking about, whether they have the manual dexterity, but you’re talking about whether they have the skill level to do a job that is paperwork at a desk. There are other sedentary jobs that are unskilled, but regardless there are– the question is what else does it require and that’s where the definition from the DOT comes in. I’m sorry–
Judge Davis: Go ahead. Sorry.
Barbara: Well, I thought I heard you say at the beginning of that last question that you hadn’t heard anyone say that it was just sitting, but that is what the secretary’s proposing. He has not said anything about non-exertional components even though this court has recognized that non-exertional components are a piece of the work in Gleicher, for example, recognizing that social skills are at issue, and recognizing that the environment factors such as dust are at issue. He hasn’t recognized any of that. He is saying it is mostly sitting and as the example we gave in our supplemental pleading that means that both a truck driver and a secretary are doing sedentary work. When that isn’t actually the case.
Judge Davis: But counsel, I want to ask, just so I understand this. The characterization of the ambiguity that you’re seeing here is it, is it at the level of adequacy? Meaning is it the examiner in using this term in a variety of different ways, make the examinations inadequate or is it the Board and the reasons and bases or some combination of these two? Where exactly is sort of locus of this ambiguity?
Barbara: I think it’s pervasive throughout the process kind of, because there is a lack of a clear definition and so the examiners are saying– they’re gut reacting, well he could do this kind of work, he could do that kind of work and then the Board using its own concept is saying he can do this kind of work. He can do that kind of work. The result is that 10 different veterans with the exact same set of facts could go before 10 different examiners or 10 different Board members and we would get 10 different analyses because there is no definition.
Judge Davis: But that, I mean the service falling at a chief first question, which is that assuming his words even have legal significance. Right? I mean, if the words are not in any code anywhere, it’s if it’s a term of art or if it’s a sort of common understanding, what’s the difference?
Barbara: Well, they didn’t have legal significance, your honor. They have legal significance because it’s the underlying basis for making the decision. That’s why the board here said that Mr. Withers was not unemployable is because the Board said he could do sedentary or light or limited work even though he could not do it on a sustained basis, which the board also acknowledged and so, there’s no– so that’s my point about the legal significance it’s the heart of what is going on in these decisions and so without a clear standard no knows what test to use. The veteran doesn’t know what evidence to submit and yes it does go to the examinations in the sense that they say things like the veteran cannot stand for more than 15 or 30 minutes. Does that mean over the course of a day? Does that mean in an hour? Does that mean over 20 minutes? So, it affects that and then it affects the Board but it also infects this court’s ability to assess what the Board did.
Judge Davis : Yes. Counselor, we looking at widely disparate outcomes in the application of 4.16 in your judgment and I haven’t seen a lot of cases that seemed to be all over the board on substantially gainful employment.
Barbara: We’re looking at standard-less adjudications, your honor.
Judge Davis : Okay, all right, fair enough. Moore the case of Moore. Are you familiar with that case Miss Cook?
Barbara: I am. Perhaps not the details.
Judge Davis : 1Vet.App 356 in 1991 written by a Judge. They find substantially gainful employment as that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. It’s on page two.
So, let’s accept that for a moment as a working definition. And let’s look at that in the context of Mr. Withers. It seems to me that Mr. Withers is clearly, has disabilities that affect his ability to be employed in a regular occupation, and some of the work that he was doing seems to be sedentary. However, I understand the Board did not follow the Social Security Administration’s disability determination. As a result, Mr. Withers, your client, was found to be employable even though not employable in the normal course of his capability he had, had he not had gunshot injuries and other problems, PTSD issues and all that. So, are you suggesting that the work that Mr. Withers has been doing was not sedentary work?
Barbara: I believe it was sedentary, it may have been light, but he retired from that work because of a combination of his psychiatric and gunshot wound disabilities.
Judge Davis: Right.
Barbara: So, and that was the basis on which Social Security used to psychiatric disability as an alternative basis for finding that he was entitled to Social Security Disability benefits.
Judge Davis: So do you think the department should use social security standards?
Barbara: I think they should use the Department of Labor definition of what sedentary work entails and I think that they should recognize that sedentary work like all work has non-exertional components such as reliability, concentration–
Judge Davis: Why do you think that the Department of Veterans Affairs should you use the Department of Labor’s definition?
Barbara: Because it’s the only authoritative definition that exists and because of the definition that they have offered, that the secretary has offered, has such huge gaps as to be almost meaningless. It simply does not provide any guidance and we can see that here, I mean, the Board decision in this case, relied on the examiner’s conclusions as to the veterans ability, supposedly ability to do sedentary work, but they did not look consider his psychiatric impairment at all. They did not talk about his problems getting along with people. They did not talk about his problems with concentration or memory. They didn’t talk about any of that.
Judge Meredith: Would those factors be considered under the definition that you are advancing?
Barbara: Yes, because those are non-exertional factors that should be incorporated into the concept of what is required for substantially gainful employment or what is work and it’s consistent with what this court has held, or recognized rather, in both Gleicher and Beatty. That there are these other elements. It’s not just a matter of what is physically required, but what is required beyond the physical movements of work, as I said, showing up.
Judge Toth: Because we can certainly recognize the deficiencies and explanations, but what authority would we have to order executive agency to adopt a particular definition?
Barbara: This court has the authority to define the terms that the secretary uses in its decisions under 7261 and that’s–
Judge Toth: So, for us to define it.
Barbara: Yes. Just as the court did in Faust, to define it in terms of some of the economic terms, the economic aspect.
Judge Meredith: But there weren’t they talking about something in a regulation? Here we don’t have a statute or regulation that contains these words.
Barbara: That is true, but again, the Board is using these terms on a regular basis and they are a critical piece of deciding whether a person can or cannot perform substantially gainful work.
Judge Meredith: Then it’s the question whether the Board in its decision has an obligation to explain what it means by using those terms? Or is there some legal requirement for VA to define a term that doesn’t appear in regulation or statute?
Barbara: I think that the VA should be fine, but in the absence of the VA defining it, I think this court should define it. I think that the Board, simply for the Board to define it on its own, again, there’s going to be this random amount as random results, as shown by the decisions we cited as supplemental authority last week – showing that after Cantrell was decided in which the court said that because there was not another definition, it would leave it to VA to define the term protected work environment and the Board is all over the place. So that’s why we’re asking the court to define the term until the secretary defines it in some meaningful way. I see my time is up. Is there further questions? Thank you.
Judge Davis: Thank you, Miss Cook.
Leahy: May I please the court. The issue before the court is the Board’s determination that appellant is not entitled to an award of TDIU.
Judge Davis: Miss Leahy, why hasn’t the department defined sedentary work?
Leahy: Sedentary work or sedentary employment, those phrases do not appear in VA statute or VA regulation, and as your questions earlier pointed out that there is no legal authority for VA to or any executive agency to define terms that do not appear in the regulations. There’s no reason for the Board or the secretary to provide a glossary of ordinary terms to enable understanding. There’s no requirement on medical examiners to use specific terms or define those specific terms when they are just common ordinary terms.
Judge Davis: So, does that mean the Board has no guidance on what sedentary work means?
Leahy: No. As your question pointed out, we understand what sedentary work means. It doesn’t mean that they can do a 40-yard dash or lift boxes of 50 pounds or more. But they are generally working in sitting at a desk and sit primarily most of the time. That just the nature of that definition also includes that there are other things that they, the veteran or the person that is employed in a sedentary position is capable of doing and we’ll be doing throughout the day, but it’s primarily marked by sitting.
Judge Davis: So how can you tell, different levels of a person’s capacity to do sedentary work if there is no definition?
Leahy: There is a definition. The ordinary common meaning is the definition and that is capable of consistent application by VA and it facilitates judicial review. But also the key standard is substantially gainful employment. It’s not whether a veteran, particular veteran, can perform sedentary work or physical work or type of work. This is what those phrases are about, type of work. And this court recognized in Ferraro v. Derwinski, that the type of work that a veteran is capable of performing is not the appropriate adjudicative standard for determining entitlement to TDIU. Rather the pertinent question under 38 CFR 4.16 is whether a veteran is capable of securing or following substantially gainful employment as a result of his service connected disabilities.
Judge Davis: What does that mean?
Leahy: That as you pointed out in Moore, which is the same definition that the board provided in this case. I believe that’s at page 5 of the decision. That definition is –
Judge Davis: Page 2.
Leahy: Page 2 of Moore and then page, excuse me, page five of the Board decision in this case, your honor. The ability to– which just ordinary followed by the non-disabled to earn their livelihood with earnings comment to the particular occupation in the community where the veteran resides. This suggests a living wage. And there’s no indication that in this case that appellant, other than his lay contentions and the social security determination that appellant is not able to secure or follow substantially gainful employment.
Judge Davis: What about the psychological impact that counsel alluded to?
Leahy: Well, it’s important also that that is part of the consideration for substantially gainful employment, which again is the actual standard under 4.16. And the Board in this case, did discuss that. In the November 2012 VA PTSD examination, the examiner found that, acknowledged that, the appellant does have some issues concentrating things of that nature and but those symptoms are not so severe as such as to preclude veteran from securing or following substantially gainful employment. The board discussed that pages 11 and 12 in their decision.
Judge Davis: Board decision?
Judge Davis: Let’s take a look for a second. Paragraph begins with the 2012 VA PTSD decision. Is that correct? Or examination — I’m sorry. 2012 VA PTSD examination. Is that the place you’re referencing? Veteran suffers from chronic and mild PTSD and depressive disorder not otherwise specified. Examiner indicated the condition resulted in an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. Is there a conclusion? However, the symptoms did not impair the veterans functioning to such an extent that they would preclude gainful employment. So does that suggest that the appellant can do sedentary work?
Leahy: The examiner specifically stated that they could be associated with decreased work efficiency regardless of whether the veteran can perform work that involves physical or sedentary tasks. But the key is whether it’s substantially gainful employment, it’s not about necessarily whether it’s sedentary work or physical work that requires physical labor. That’s not the standard for the Board in determining entitlement to TDIU.
Judge Davis: Okay.
Judge Toth: Why then are examiners using this phrase then? I mean they obviously don’t know about 4.16. That’s a legal conclusion, right? I mean, it’s my understanding examines make discrete factual findings, a person can life, they can stand, they can walk. Why then– you know ultimately, I mean, is this sedentary employment of any sort of adjudicate significance in this case for an examiner?
Leahy: It is not an adjudicative significance. It’s part of certainly part if an examiner happens to discuss whether there is able to do sedentary work or work requiring physical labor and the type of work is certainly one piece of the evidence that the board will consider and determining the ultimate–
Judge Toth: But I mean, it seems to me to be a conclusion based on other predicate factual findings and so in that sense, it’s either superfluous, meaning it’s a sort of substitute for a factual finding that a person can stand or sit or lift or do any number of things that medical examiner figured out or it has some independent adjudicative significance that really would be proper at the examiner level. I’m just, I’m not quite sure I can square the circle.
Leahy: Well, your honor, I think that if it does fall, it’s not in one of those two categories. It is a conclusion but I don’t believe that it is superfluous because it is the examiner and the examiner’s opinion, you know, it goes through and discusses the actual functional effects lifting, carrying, being able to walk for a certain period of time, things like that. Then describing or commenting on as the manual provision provides, in part for ii and I believe F.2d, that the examiner can comment on what those functional effects. How would they have an impact on physical work or a work that is sedentary in nature, and so that’s sort of, it’s kind of wrapping it up. And then it’s the examiner’s discussion of those functional effects.
Judge Toth: So it would extend no beyond that, no further than that, the facts of the case that, that exists just sort of summary of the conclusion of the predicate findings and examiner would make in that case.
Leahy: I think it’s– it is in this case, I believe that, that I don’t want to represent that for all cases, but that is what it is here. But it’s not like you mentioned, it’s not part of the adjudicative standard, it’s just a piece of the evidence for the Board to consider. Medical examiners are the ones that generally make that determination. It would be part of the medical determination that the examiner does.
Judge Meredith: In common conclusion that you think we should rely on the ordinary meaning of this term. You cite to case law that has to do with the normal canons during regulatory construction. Do you think those cases apply in a situation like this where the words do not peer in a regulation or a statute?
Leahy: I think that the ordinary meaning in canon applies in all contexts, not just words that are not in a statute or regulation. I think it is pertinent that the word sedentary work do not appear on the regulation because it’s not part of the standard that the secretary has chosen for entitlement to TDIU benefits, but the ordinary meaning can, I believe applies to all texts, not just legal statutes or regulations.
Judge Meredith: Does your position based on what you said at the beginning of your argument that, yes, it’s not permitted to define this term or is it that you’re not required to?
Leahy: The secretary has chosen not to. The secretary has not chosen to include this and his regulation, and I believe that the Board is not required to define it, provide a specific definition of the term in their decision in order to render their statement of reasons or bases adequate. I think the ordinary meaning, is sufficient to enable the appellant to understand the bases for the decision and then also to facilitate judicial review.
Judge Meredith: Would there be a downside to VA defining this term, particularly in light of all the different litigation that has stemmed from not having a definition?
Leahy: I think that I could go down a path of how, when does the secretary, you have to stop defining terms. I mean, if it’s just a term of ordinary meaning, do we need to describe what employment that requires physical labor? Does that need a specific definition? Especially, when it’s not part of the adjudicative standard. The adjudicative standard is whether a veteran is unable to secure follow substantially gainful employment. So, I would see no reason that the secretary would need to define the term.
Judge Davis: Counsel, does using a common definition then leave as appellant’s counsel suggests to a widely different application at the Board level?
Leahy: No, your honor, I don’t believe that it leads to a widely disparate or inconsistent application. And in any case that it does, that the Board or a medical examiner finds that a veteran is capable of sedentary employment. This court has been able to review those determinations and where a Board has found based on a medical examiner’s opinion that a veteran is capable of substantially, or excuse me, sedentary work, the court has been able to say no, there was evidence in the record that actually this veteran is precluded from sitting for prolonged periods, which is the hallmark of sedentary employment. I believe that was the phrase used in the memorandum decision we cited in our supplemental response. And so no, there would not be an issue with that.
Judge Davis: Okay. Is there any reason why to your knowledge, the department would not consider looking at the Department of Labor definition to define the term?
Leahy: I think that the Department of Labor and the Social Security Administration definitions are inconsistent with how the secretary has chosen to determine entitlement to TDIU. There is no indication that the secretary wants to include sedentary work as part of the adjudicative standard. The standard is substantially gainful employment. It’s not the type of work as this court recognized in Ferraro. So, there is no reason for that. Whereas in the Social Security context, the type of work that a veteran, excuse me, an individual, in that context is capable of performing such a sedentary work, light duty, heavy duty, medium duty, that’s actually part of their determination of entitlement to benefits. That’s in their regulations. It’s part of their five-part system. And so that’s the difference here. That’s not part of VA’s regulatory scheme.
We also don’t believe that there is any legal authority for imposing on the secretary another agency’s definitions in this case, especially when those words are not included in the regulation. I think that’s also key there. Where this court and then the Board decision cited by the appellant have looked for guidance on the definition of terms. Those have only been terms that have been included in the regulation substantially gainful employment or employment in a protected work environment. Things like that.
Judge Davis: Didn’t the court in Faust look to the SSA regulations for guidance?
Leahy: Yes. For term that actually appeared in the regulation.
Judge Davis: Gainful employment resulting like that.
Leahy: Substantially gainful occupation, which as the court has found is synonymous with substantially gainful employment. Yes.
Judge Davis: So you’re saying if the term does not appear the regulations, there’s no reason to consult the other definitions?
Leahy: I think it would be– there is no reason here to consult. I think that is a key distinction on what this court has done in its prior case law and looking for understanding a meaning of terms.
Leahy: There are no further questions?
Judge Davis: Okay. Thank you, counsel.
Leahy: The secretary requests that the court affirms the Board’s March 7, 2016 decision. Thank you.
Barbara: The problem with the secretary’s argument is that they’re allowing and demanding the right to allow the Board and all of its adjudicators to simply look at facts and come to a conclusion. Here are the facts of the veteran’s case. He can walk, he’s limited to sitting, whatever, and that means he can or cannot do substantially gainful employment, but what’s the test? They’re missing that entire middle step of how did they know that that is the right conclusion? What are the standards that they are applying to those facts that allow it to reach the conclusion of able to work or not able to work? It can’t just be facts and conclusion. There has to be a test that is applied and the fact that the secretary has so far chosen not to define the term makes this piece no different from Cantrell. Yes. The term protected work environment. The phrase was in the regulation, but the phrase substantially gainful employment is in the regulation and the secretary cannot define and cannot justify his decisions without a standard.
Judge Toth: Miss Cook, do you have examples of this pre-application of 4.16, a substantial gainful employment in these cases?
Barbara: Not off the top of my head, your honor, but I’d be happy to submit supplemental citation if that would be helpful to the court. But I think the problem is, not so, is that it is standard-less. I mean the secretary has said that these can be reviewed by the court but they get reviewed by the court and sent back for inadequate reasons or bases. And why are they sent back for inadequate reasons for bases? It’s because the board has not taken into account all sorts of factors such as the non-exertional ones that are required. So that’s the problem, is that no one knows what the rules are.
The secretary says there’s no suggestion that this veteran cannot work, but you can only come to that conclusion if one knows what the standard for not being able to work is. And so we are asking that the court define the term it has, we believe that the court has the authority to do this under 7261. We believe it’s required given the secretary’s refusal at this point to define the term in a way that includes the full scope of what work is. Based on that, the court could then reverse the board’s denial of Mr. Withers case based on the un-contradicted evidence.
Judge Davis: And your preference would be that the court used the Department of Labor definition. Is that, do I understand that correctly?
Barbara: That is correct, your honor because as far as I know, it’s the only authoritative definition there is.
Judge Davis: Okay.
Barbara: If there are no further questions?
Judge Davis: Thank you, counsel.
Barbara: Thank you.
Judge Davis: Thank you all very much. The case is submitted for consideration. And as is custom, the court will now come down to three counsel.
Bailiff: All rise.