Smith v. Shinseki
2011 U.S. App. LEXIS 16385
| Fed. Cir. | 2011Background
- Smith appeals a Veterans Court decision denying TDIU based on service-connected disabilities.
- Smith previously worked in coal mines and as a laborer; he filed for TDIU in 1997 and VA denied in 1998.
- By 2007 the Board had 80% combined rating and denied TDIU after considering medical examiner conclusions that Smith could perform other, non-heavy labor.
- Veterans Court affirmed the Board, rejecting Smith's argument that VA must obtain an industrial survey from a vocational expert.
- Smith argues the duty to assist requires an industrial survey to determine suitable work beyond the veteran's prior occupation.
- This court holds the VA is not categorically required to obtain an industrial survey or vocational expert in TDIU cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA must obtain a vocational expert survey in TDIU cases. | Smith contends such survey is necessary to map available jobs. | Shinseki argues no statutory/regulatory requirement for an industrial survey in all TDIU cases. | Not required; not 'necessary' as a matter of course. |
| Whether the duty to assist requires considering job availability in TDIU determinations. | Smith says job availability must be analyzed to justify TDIU. | VA regulation treats job availability as extraneous to TDIU. | Does not require analysis of job market availability. |
| Whether SSA vocational-evidence principles control VA's duty to assist in TDIU. | Smith relies on SSA cases requiring vocational evidence. | SSA framework differs; not controlling for VA adjudications. | SSA standards do not govern VA's duty in this context. |
Key Cases Cited
- Thun v. Shinseki, 572 F.3d 1366 (Fed.Cir. 2009) (VA interpretations of its own regulations can be controlling)
- Rizzo v. Shinseki, 580 F.3d 1288 (Fed.Cir. 2009) (duty to assist does not demand examiner competence proofs from claimants)
- Van Hoose v. Brown, 4 Vet.App. 361 (1993) (unemployment alone does not establish entitlement; analysis of ability to perform acts required by work)
- DeLorme v. Sullivan, 924 F.2d 841 (9th Cir. 1991) (vocational evidence may be necessary under SSA in some cases)
- Fields v. Bowen, 805 F.2d 1168 (5th Cir. 1986) (SSA may require vocational testimony in some disability determinations)