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 precedential case
that was handed down just a couple days ago.
It is called Ray v. Wilkie.
It involves very important questions revolving around total disability based on individual
unemployability which is a very commonly sought means of 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 cck-law.com.
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 and 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 handled 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 4.16(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 4.16(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 disabilities precluded physical employment.
So 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 at best as to what his level of success in
gaining those additional skills were.
So, one thing leads to another and we get 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 broke it down into something that's a little
bit easier for everyone to understand and to follow, which is great.
We're always looking for guidance.
We're looking for tests and rules so that everyone 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 a protected environment as determined by the US Department of Commerce
as the poverty threshold for one person.
Now that number adjusts 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 that attention must be given to the veteran's 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 the 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 a
checklist that must be necessarily 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'll ask my two colleagues
to chime in if they think anything different -- is for over 30 years now, VA
has kind of gotten away and has asked with some reasoning to get away with just
saying, "Look, we know when a veteran is totally unemployable kind of when we see it."
They used the 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 Offices.
So that was my main take of it.
That's the 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
through 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
it 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 decision 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 longer 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 believe 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 deserve.
Thank you very much for joining us today.
From Providence Rhode Island, this is Zach Stolz, Brad Hennings, and April Donahower.