Case Law
VA is not requried to obtain a Vocational Expert Testimony or Industiral Survey to Deny Total Disability Individual Unemployement (TDIU) to deny a Veteran Individual Unemployment. But they must use the Vocational Experts findings in thier opinion!
This is a major difference between VA Adjudication and Social Security ODAR Adjudication. Social Security has to use a Vocational Expert at Step 4 and Step 5.
| Smith v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 1470 (U.S. App. Vet. Cl., Aug. 11, 2010) OVERVIEW: The veteran had a combined service-connected disability rating of 80 percent. Although the Board found that his 80 percent combined rating (with at least one disability rated at 40 percent) met the threshold requirements for a TDIU claim, it denied his claim after taking into account his work history, his educational background, and reports from VA medical examiners. While the medical examiners did not suggest that he could perform his previous employment as a laborer in the coal mines or a carpenter, they concluded that he was not prevented from performing light or sedentary jobs. The court rejected the veteran’s argument that VA was required to obtain an industrial survey from a vocational expert to evaluate his claim. Given that a TDIU determination under § 4.16 did not require any analysis of the actual opportunities available in the job market, the court declined to conclude that an industrial survey was “necessary” for that purpose in connection with TDIU claims. Because job market information was not required, the duty to assist under 38 U.S.C.S. § 5103A did not require the VA to provide such information through an industrial survey. |
This is why you need a ∞ TDIU Vocational Evaluation performed by a Vocational Expert so that the court will have the inforation assessed for them, unlike Social Security which has to use Vocational Experts,
The VA doesnt, BUT must apply the Vocational Experts opinion to the VA’s Decision.
The Court was left scratching its head as to what jobs this disabled veteran could obtain and work since VA did not address that:In a later case in July 2014 the Appeals Court for Veterans Claims reasoned in McClain v. Gibson that VA must provide a detailed explanation when it decides that a severely disabled veteran is ’employable’ as opposed to unemployable.
Evan McLain, Appellant, v. Sloan D. Gibson, Acting Secretary of Veterans Affairs, Appellee.
No. 13-2264
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
2014 U.S. App. Vet. Claims LEXIS 1235 July 17, 2014, Decided
“McClain [Veteran] argues that the Board provided an inadequate statement of reasons or bases for its denial of TDIU. To show entitlement to TDIU, the evidence must demonstrate an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a) (2014) (TDIU is awarded when a disabled person is”unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities”). The Board “may not reject [a claim for TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”Beaty v. Brown, 6 Vet.App. 532, 537 (1994). Although the Board need not find that [*2] a particular job exists in the economy, Smith v.Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011), the Board’s statement regarding employability must do more than “merely allude to educational and occupational history, attempt in no way to relate these factors to the disabilities of the appellant, and conclude that some form of employment is available.” Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991). Moreover, the Board’s explanation for its determination must be understandable to the claimant and facilitate judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).
Mr. McLain argues that the Board inadequately explained its TDIU determination because it did not address how difficult it would be for him to find employment given the limitations noted by medical examiners. The May 2010 and January 2012 examinations relied on by the Board found that Mr. McLain’s disabilities did not preclude him from employment in a loosely supervised setting, with minimal social interaction, where there was little background noise or phone [*3] communication, and where alarms and exact communication would not be needed. Record (R.) at 36, 48-49. Although the Board relied on these examiners’ ultimate conclusions that Mr. McLain could be employed in some kinds of jobs, the Board did not address the limitations noted by the examiners, nor did it attempt to relate these limitations to Mr. McLain’s educational and occupational history or explain what kinds of jobs Mr. McLain could obtain. See Beaty andGleicher, both supra. The Board’s failure to do so renders its statement of reasons or bases inadequate and warrants remand.1Allday,supra; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate where the Board has, inter alia, failed to provide an adequate statement of reasons or bases).”
NOTE: McClain is an unpublished opinion and not to be cited as precedent. However I believe its teachings and principles are important to grasp in the area of TDIU claims.