March 18, 2019
Updated January 31, 2023
On March 14, 2019, the United States Court of Appeals for Veterans Claims (CAVC) entered a precedent ruling in a case regarding the entitlement to a total disability rating based on individual disability (TDIU). Precedent means that this decision is persuasive for VA when deciding subsequent cases with similar fact patterns. In its decision, the court outlined certain standards that VA should adhere to when it comes to TDIU. In particular, it clarified the meaning of the phrase "unable to find and pursue substantially gainful employment," which is a determining factor in determining whether a veteran is eligible for TDIU. Hence the decision of the court inRay vs. Wilkiewill have a significant effect in the future for veterans seeking TDIU perks.
CCK discussed the outcome of thebeamcase and what it means for veterans
CCK discussed the broader implications of the court's precedent ruling and how it will affect the evolution of veterans' law. CCK noted the importance of the court's decision in ultimately setting standards for VA so that not only will the decision be more consistent, but veterans applying for TDIU will know what to expect. This precedent decision finally provides more than a roadmap for treating veterans fairly throughout the VA system and no longer hides standards from veterans, adjudicators, and representatives. This improved structure and transparency will better help veterans receive the disability benefits to which they are rightfully entitled.
Factual and procedural history ofRay vs. Wilkie
Mr. Ray served with honor in the United States Army from November 1966 to November 1969 and is attached to service for several termscombined disability ratingof 50 percent. In September 2005, he submitted an application for a Total Disability Assessment based on Individual Incapacity for Work (TDIU), stating that he was unable to work due to his service-related conditions. However, the Regional Office (RO) rejected his claim and he continued to appeal to the Board of Veterans' Appeals. In July 2014, the Board remanded the issue of the TDIU entitlement for referral pursuant to 38 CFR §4.16(b) to the Director of Compensation Services for an unscheduled review. The director rejected TDIU in March 2015 and the RO implemented the director's decision that same month. Mr. Ray again appealed to the board, which also denied him an unscheduled TDIU rating.
The Board found that his service-related conditions did not "disable him from finding and holding substantially gainful employment" consistent with his education and special training. Importantly, Mr. Ray had a high school education and completed one semester of college. He worked construction jobs until September 2004 when his disabilities prevented him from continuing. At the time, Mr. Ray was receiving training in typing and clerical skills, but his records of whether he successfully acquired these skills are unclear. After the board's denial, CCK appealed to the court on behalf of the veteran.
CCK appeals Board rejection of TDIU and presents oral arguments before CAVC
CCK successfully appealed to the CAVC against the Board's decision denying entitlement to TDIU on an off-scheduled basis. On September 5, 2018, CCK held a hearing on this matter at the CAVC in Washington, D.C. In particular, CCK argued that the Board's 2014 decision to refer TDIU's matter constituted a binding finding of fact which the Board improperly amended when it later disputed that Mr. Ray received an exceptional TDIU rating in February 2017. In other words, the Board originally determined that Mr. Ray was eligible for TDIU under 38 CFR §4.16(b). Therefore, it should not be allowed to resort to this finding and subsequently deny the claim for TDIU unscheduled.
The court issues a precedent ruling and returns the veteran's case to the board of directors
On appeal, the court had to answer two important questions: (1) What effect, if any, will the Chamber's decision to refer a case to an unscheduled review38 CFR § 4.16(b)if the board subsequently reviews the director's decision not to assign an unscheduled TDIU rating; and (2) Does VA's refusal to define key terms in § 4.16(b) render the Chamber's reasoning or basis inadequate, and if so, should the Court itself interpret those terms? Here, the court's answers to these questions pertain not only specifically to Mr. Ray's case, but also to veterans' law as a whole, since the ambiguous language of 38 CFR §4.16(b) has long affected veterans' pursuit of TDIU benefits. While VA directs that all veterans who are unable to find and pursue substantial gainful employment are eligible for an overall rating (i.e., 100 percent), it does not define what that means. By using such broad, ambiguous terms, VA was able to highly individualize the TDIU assessment, thereby inconsistently assessing veterans' benefit claims under 38 CFR §4.16.
In response to the first question at issue, the Court noted that the Board's original decision to refer TDIU under Section 4.16(b) “addresses the question of whether there is sufficient evidence to establish a reasonable possibility that a Veteran is unable to work for reasons of his or her service. related disabilities.” If the Director of Compensation then denies an unscheduled TDIU rating, the Board, after reviewing that decision, must ensure that he adequately explains his rationale if a finding of fact at the referral stage differs at the review stage. Therefore, the referral decision is not categorically binding, but depending on how specific the referral decision was and whether the records have changed since then, it is "possible that no statement will overcome the Board's original finding."
In relation to the second question, the Court found that VA would ideally have interpreted the phrase 'unable to find and hold substantially gainful employment'. However, since VA has refused over the years to provide an adequate definition, the court chose to interpret the term itself. Importantly, this is the first time the Court has interpreted that phrase and provided guidance on what it means to "secure and pursue" that employment. Here the Court noted that the phrase "unable to find and engage in substantially gainful employment" in § 4.16(b) has both an "economic" and a "non-economic" component. Economic refers to the veteran's ability to earn more than marginal income as determined by the federal poverty line for a single person. The non-economic component includes what needs to be assessed to determine if a veteran can actually work. The court concluded that the following must be considered:
- Veteran's history and education, skills and education;
- Whether the veteran has the physical ability (both strenuous and non-strenuous) to perform the type of activities (e.g., seated, light, moderate, heavy, or very heavy) required for the job in question - including limitations in lifting, bending, sitting, standing, walking, etc. and auditory/visual limitations; And
- Whether the veteran has the mental ability to perform the activities required for the job in question - including limitations in memory, concentration, the ability to adapt to change, manage stress at work, get along with co-workers, and demonstrate reliability and productivity.
With regard to the above factors, the Court emphasized that they do not constitute a checklist. Instead, a factor needs to be considered only when it is collected through evidence of the record.
Consistent with these findings, the court remanded Mr. Ray's case because the Chamber did not explain why the finding of fact it made at the submission stage was different at the review stage. While in custody, the Board must ensure that it explains its various findings of fact at each stage and reassesses Mr. Ray's entitlement to TDIU benefits.