United States Court of Appeals
for the Federal Circuit
__________________________
CURTIS E. SMITH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7145
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 08-3702, Judge William P. Greene. Jr.
__________________________
Decided: August 8, 2011
___________________________
JAMES R. BARNEY, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Washington, DC, argued for
claimant-appellant. MARK R. LIPPMAN, The Veterans Law
Group, of La Jolla, California, for claimant-appellant.
ERIC P. BRUSKIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for the respondent-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
SMITH v. DVA 2
sel on the brief were MICHAEL J. TIMINSKI, Deputy Assis-
tant General Counsel, and AMANDA R. BLACKMON, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
__________________________
Before LINN, PLAGER, and DYK, Circuit Judges.
DYK, Circuit Judge.
Curtis E. Smith (“Smith”) appeals a decision of the
Court of Appeals for Veterans Claims (“Veterans Court”)
that denied him a rating of total disability based on
individual unemployability (“TDIU”). Smith argued that
the Veterans Administration (“VA”) was required to
obtain an industrial survey from a vocational expert to
evaluate TDIU claims such as Smith’s. The Veterans
Court rejected this argument. We affirm.
BACKGROUND
Smith served in active military duty for training from
July 1972 to November 1972, active military duty from
February 1975 to February 1979, and in the Army Na-
tional Guard before and after his active service. While
not serving in the military, Smith worked as a “laborer in
a supply company and in the coal mines . . . for 13 years”
and as a carpenter. J.A. 38. In January 1997, Smith filed
a claim for entitlement to TDIU. TDIU provides a vet-
eran with a total disability rating even where his disabil-
ity rating is below 100% if the veteran is at least 60%
disabled, meets other disability rating criteria, and is
“unable to secure or follow a substantially gainful occupa-
3 SMITH v. DVA
tion as a result of service-connected disabilities.” 1 38
C.F.R. § 4.16(a).
In September 1998, the VA regional office denied
Smith’s TDIU claim. From 1998 to 2007, the Board of
Veterans’ Appeals (“Board”) remanded Smith’s claim to
the VA for further development three times, and Smith
underwent a total of five VA medical examinations. By
2007, Smith had a combined service-connected disability
rating of 80% based on neck, back, cardiovascular, eye,
and hearing disorders. Finally, in November 2007, the
Board denied Smith’s TDIU claim. The Board found that
his 80% combined rating (with at least one disability
rated at 40%) met the threshold requirements for a TDIU
claim. See 38 C.F.R. § 4.16(a). However, taking into
account Smith’s work history, his educational back-
ground, and reports from VA medical examiners, the
Board found that Smith’s disabilities were not “so dis-
abling as to prevent him from securing and maintaining
all forms of substantially gainful employment consistent
with a work background that would be consistent with
either sedentary employment or certainly light manual
labor.” J.A. 35. The basis for this finding was, in signifi-
cant part, the conclusions of the VA medical examiners.
While the medical examiners did not suggest that
Smith could perform his previous employment as a la-
borer in the coal mines or a carpenter, they concluded
that he was not prevented from performing other jobs.
One examiner concluded, based in part on Smith’s en-
rollment in business classes, that he would be capable of
“[d]esk jobs” or other activities “similar to that of school-
1 A veteran who does not meet the disability rating
thresholds may still be able to secure TDIU benefits
under some circumstances if he is still “unable to secure
or follow a substantially gainful employment as a result of
service-connected disabilities.” 38 C.F.R. § 4.16(b).
SMITH v. DVA 4
ing” that would not involve “heavy labor.” J.A. 45. An-
other examiner stated that Smith “should be able to
assume gainful employment doing most types of work
which do not involve heavy lifting (above 20-30 pounds),
excessive bending, or climbing. He would certainly be
able to assume all types of sedentary and light work.”
J.A. 50–51. A third examiner determined that Smith’s
cardiovascular disorder would not prevent him from being
gainfully employed. Lastly, a VA examiner found that
Smith’s eye disorder would only preclude him from jobs
where excellent depth perception was required or double
vision would be a serious risk (i.e., jobs involving driving
or heavy equipment operation).
Smith appealed the Board’s decision to the Veterans
Court, which affirmed. The Veterans Court found that
the Board’s conclusion was not clearly erroneous. It also
rejected Smith’s argument that the Board did not take
“his potential transferable occupational skills or educa-
tional background” into account. Smith v. Shinseki, No.
08-3702, slip op. at 3 (Vet. App. Aug. 11, 2010). Lastly,
the Veterans Court held that the VA was not obligated to
obtain an industrial survey from a vocational expert in
order to evaluate whether Smith was employable in a job
other than his former occupation (i.e., a job that did not
involve heavy manual labor). Smith timely appealed, and
we have jurisdiction pursuant to 38 U.S.C. § 7292.
DISCUSSION
Under 38 U.S.C. § 7292(a) and (c), our review of deci-
sions of the Veterans Court is limited to a “challenge to
the validity of any statute or regulation or any interpreta-
tion thereof . . . .” Smith challenges the Veterans Court’s
interpretation of 38 U.S.C. § 5103A––the duty to assist
statute.
5 SMITH v. DVA
The duty to assist statute provides that the VA “shall
make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate the claimant’s claim
for [veterans] benefit[s].” Id. Smith argues that an
industrial survey from a vocational expert (or its equiva-
lent) is “necessary” in all TDIU cases in which “a vet-
eran’s service-connected disabilities prevent him . . . from
performing the duties of his . . . prior employment” but
where he may be able to “secure alternative employment.”
Appellant’s Br. 11, 15. According to Smith, in this situa-
tion, only an industrial survey “can . . . tell us what jobs
are available in the labor market [that are] compatible
with the claimant’s physical [and] mental limitations
[and] educational and employment experience.” Appel-
lant’s Br. 19. Although Smith fails to fully explain what
an industrial survey entails, it apparently involves col-
lecting job market data, comparing available jobs with an
individual’s skills and experience, and thereby enabling a
vocational expert to determine “whether jobs are avail-
able, to which . . . [the] claimant can make a work ad-
justment, and the incidence of those jobs in the economy.”
Jon C. Dubin, Overcoming Gridlock: Campbell After a
Quarter-Century and Bureaucratically Rational Gap-
filling in Mass Justice Adjudication in the Social Security
Administration’s Disability Programs, 62 Admin. L. Rev.
937, 965 (2010).
This question whether the VA is obligated to supply a
vocational expert as a matter of course in cases where the
veteran cannot perform his old job is an issue of first
impression. We agree with the Veterans Court that the
statute does not require the VA to obtain such a survey in
all cases in which a veteran is unable to return to his
former occupation.
We note first that the statute includes no explicit ref-
erence to industrial surveys or vocational expert reports.
SMITH v. DVA 6
In contrast, the statute specifically requires the VA to
obtain “[t]he claimant’s medical records,” “[a]ny [other]
relevant records” identified by the claimant (including
government records), and “a medical examination or . . . a
medical opinion” when that examination or opinion is
“necessary.” 38 U.S.C. § 5103A(b)-(d). 2 The explicit
reference to medical expert reports without a reference to
vocational expert reports provides evidence that Congress
did not view such industrial surveys as “necessary.” Like
the statute, nothing in the VA’s regulation implementing
the duty to assist statute explicitly requires the VA to
obtain an industrial survey or consult non-medical ex-
perts even though the regulation identifies specific in-
stances in which the duty to assist applies, including
“obtaining records” and “providing medical examinations
or obtaining medical opinions.” 3 38 C.F.R. § 3.159(c).
2 The statute also explicitly defines when such a
medical examination is “necessary.” It is “necessary” if
the record “contains competent evidence that the claimant
has a current disability, or persistent or recurrent symp-
toms of disability;” and “indicates that the disability or
symptoms may be associated with the claimant's active
military, naval, or air service;” but “does not contain
sufficient medical evidence for the Secretary to make a
decision on the claim.” 38 U.S.C. § 5103A(d)(2).
3 So too a precedential VA general counsel opinion
determined that in order to “require an employability
assessment [from VA’s vocational rehabilitation service]
as a matter of generally applicable adjudication policy for
determining a veteran’s entitlement to [TDIU] . . . the
Secretary must . . . first promulgate substantive regula-
tions defining the scope, purpose and criteria for conduct-
ing such an assessment.” Precedential Opinion of the
Office of Gen. Counsel for the Dep’t of Veterans Affairs,
No. 08-1994, 4–5 (Mar. 25, 1994), available at
http://www.va.gov/ogc/docs/1994/Prc08-94.doc. No such
regulation has been promulgated.
7 SMITH v. DVA
Nevertheless, in and of itself, the failure of the statute
or the regulation to specifically require the VA to provide
an industrial survey from a vocational expert is not
dispositive. The duty to assist statute could still require
the VA to obtain an industrial survey if it were “necessary
to substantiate” the veteran’s claim. However, here, the
administrative scheme makes it clear that such a survey
is not “necessary” as a matter of course for TDIU claims of
the type identified by Mr. Smith.
Smith’s primary argument is that the VA must con-
sider the availability of work in making a TDIU determi-
nation. The VA regulation governing TDIU claims
includes no requirement that the agency consider the
availability of work and makes no reference to vocational
experts or industrial surveys. See 38 C.F.R. § 4.16. While
the TDIU regulation requires that the veteran be capable
of obtaining employment that would provide income
“exceed[ing] . . . the poverty threshold for one person,” it
does not state that a particular job meeting this standard
must exist in the national or local economy. Id. § 4.16(a).
The VA’s Adjudication Procedures Manual (published by
VA in order to provide guidance to its adjudicators) explic-
itly states that the “availability of work” is an “extraneous
factor” that is irrelevant to the TDIU determination. VA
Adjudication Procedures Manual Rewrite M21-1MR, Part
IV, Subpart ii, Chapter 2, Section F, 2-F-12.
We have previously held that VA interpretations of its
own regulations in its Adjudication Procedures Manual
are “controlling” as long as they are not “plainly erroneous
or inconsistent with the regulation.” Thun v. Shinseki,
572 F.3d 1366, 1369 (Fed. Cir. 2009) (quoting Auer v.
Robbins, 519 U.S. 452, 461 (1997)). We thus defer to this
interpretation of the TDIU regulation, which is consistent
with the Veterans Court’s standard. That standard does
not require a showing that jobs exist in sufficient num-
SMITH v. DVA 8
bers in the economy. See, e.g., Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993) (“The sole fact that a claimant is
unemployed or has difficulty obtaining employment is not
enough. A high rating in itself is a recognition that the
impairment makes it difficult to obtain and keep employ-
ment. The question is whether the veteran is capable of
performing the physical and mental acts required by
employment, not whether the veteran can find employ-
ment.”).
Given that a TDIU determination does not require
any analysis of the actual opportunities available in the
job market, we decline to conclude that an industrial
survey is “necessary” for that purpose in connection with
TDIU claims. Because job market information is not
required, the duty to assist does not require the VA to
provide such information through an industrial survey. 4
To support his contrary interpretation, Smith relies
on cases involving Social Security Administration (“SSA”)
disability determinations. These cases held that, at least
in some circumstances, the SSA was required to provide
vocational expert testimony or similar evidence. See, e.g.,
DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991);
Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986).
However, the SSA scheme differs significantly from the
VA’s approach. The SSA regulations expressly provide
that “any other work [besides your former occupation]
that you can adjust to must exist in significant numbers
in the national economy” and that “[SSA is] responsible
4 See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed.
Cir. 2009) (holding that the duty to assist does not require
the VA to provide affirmative evidence as to the compe-
tence of a VA examiner “because VA does not require a
claimant such as Mr. Rizzo to provide any evidence that
would establish the competence of a VA examiner in order
to substantiate a claim for benefits”).
9 SMITH v. DVA
for providing evidence that demonstrates that other work
exists in significant numbers in the national economy that
you can do, given your residual functional capacity . . . .”
20 C.F.R. § 404.1560(c). The SSA regulations also specifi-
cally envision that “[SSA] may use the services of a voca-
tional expert or other specialist,” id. § 404.1566(d), and a
1983 Social Security precedential ruling determined that,
in some cases, “the assistance of a vocational resource
may be necessary.” SSR 83-14: Titles II and XVI: Capa-
bility To Do Other Work (1983), available at
http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR
83-14-di-02.html.
Smith argues that, quite apart from determining the
availability of work, a vocational expert may be necessary
to determine whether a veteran is qualified in education
and experience for the type of job that he is medically fit
to perform. He notes that the regulation provides that
“employment history, [and] educational and vocational
attainment” of the veteran are relevant to a TDIU claim.
38 C.F.R. § 4.16(b). At the same time, the duty to assist
statute provides that “[n]othing . . . shall be construed as
precluding the Secretary from providing such other assis-
tance . . . to a claimant in substantiating a claim as the
Secretary considers appropriate.” 38 U.S.C. § 5103A(g).
At oral argument, the government agreed that the statute
provided the VA with the discretion to offer additional
assistance in the form of a vocational expert when the VA
concluded that it was necessary. Thus, the VA agrees
that a vocational expert could be “necessary” under the
facts of a particular case (if, for example, the veteran were
found medically qualified for a particular type of job, but
there was an unusually difficult question as to whether
the veteran had the educational or vocational skills for
the position).
SMITH v. DVA 10
But the relevance of education and experience or the
fact that such an expert is sometimes necessary does not
suggest that a vocational expert is always required for
this purpose, and we hold that such an expert is not
invariably required. We note in particular that Smith’s
counsel at oral argument “concede[d]” that “there has to
be some discretion [with] the [VA]” in determining “when
and where” such evidence is necessary, Oral Arg. at
10:44–11:03, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
10-7145.mp3.
Smith appears to argue that the VA should have
found that an expert was necessary for this purpose in
this case. Even if the question of whether a vocational
expert was necessary in this case were within our juris-
diction––a question on which we express no opinion––we
could not conclude on these facts that the VA abused its
discretion in declining to provide a vocational expert.
AFFIRMED
COSTS
No costs.