647 F.3d 1380
Fed. Cir.2011Background
- Smith appeals a Veterans Court decision denying TDIU; he argues VA must obtain an industrial survey from a vocational expert.
- Smith served in active duty for training (Jul 1972–Nov 1972) and active duty (Feb 1975–Feb 1979), later in the Army National Guard; he worked as a laborer and carpenter before filing.
- In Jan 1997, Smith filed for TDIU; VA denied in Sep 1998; from 1998 to 2007 the Board remanded three times and he underwent five VA medical examinations.
- By 2007, Smith had an 80% service-connected rating with at least one 40% disability; the Board denied TDIU after considering medical examiners’ views on employability.
- Examiners suggested Smith could perform sedentary or light work with limitations; none found him unable to pursue all forms of substantially gainful employment.
- The Veterans Court affirmed, and held the VA was not obligated to obtain an industrial survey; the claim is not about market availability of jobs, but capability to perform acts of employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to assist requires an industrial survey | Smith asserts industrial survey is necessary for TDIU cases. | VA argues surveys are not required by statute or regulation for TDIU. | No; the survey is not necessary in these TDIU cases. |
| Availability of work analysis in TDIU determinations | Smith contends VA must assess labor-market availability via vocational evidence. | VA regulation does not require considering job availability or vocational surveys; M21-1MR deems it extraneous. | VA need not analyze job-market availability for TDIU determinations. |
| Use of vocational expert vs. medical evidence | Smith argues vocational expertise is necessary to evaluate education/experience matching for suitable work. | VA may rely on medical examiners and discretionary use of vocational evidence; not always required. | Discretionary; not invariably required to provide a vocational expert. |
Key Cases Cited
- Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009) (defers to VA interpretation of its own regulations when not plainly erroneous)
- Van Hoose v. Brown, 4 Vet.App. 361 (1993) (unemployment alone does not prove lack of capability; focus on physical/mental acts of employment)
- DeLorme v. Sullivan, 924 F.2d 841 (9th Cir. 1991) (SSA requires vocational evidence to show other work exists in the economy)
- Fields v. Bowen, 805 F.2d 1168 (5th Cir. 1986) (vocational evidence may be necessary in some SSA determinations)
- Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (duty to assist does not require affirmative evidence of examiner competence)