[00:00:00] Speaker 02:
The next case is Janet versus Collins, 24-1944.

[00:00:09] Speaker 02:
You have three minutes reserved for rebuttal.

[00:00:12] Speaker 02:
Yes, Your Honor.

[00:00:17] Speaker 02:
You may proceed.

[00:00:19] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:22] Speaker 00:
The Veterans Court could only legally affirm the board's denial of the individual unemployability benefit if there were record-based findings that Mr. Janich could perform substantially gainful employment.

[00:00:35] Speaker 00:
The Veterans Court agreed that the board's findings went beyond the record.

[00:00:40] Speaker 00:
In affirming the board's denial, the Veterans Court therefore created a legally erroneous rule that allows the board to deny individual unemployability based on its own say-so.

[00:00:51] Speaker 00:
that the work a veteran can perform is substantially gainful.

[00:00:56] Speaker 00:
The other Veterans Court legal error is misinterpreting section 4.16 to say that the required analysis ends with a finding about physical or mental tasks that a veteran can perform.

[00:01:09] Speaker 00:
That's only the first step of the analysis.

[00:01:13] Speaker 00:
The regulation goes on to require a finding that those physical and mental tasks equate to

[00:01:21] Speaker 00:
a job that can produce income above the poverty level and is outside of a protected environment.

[00:01:27] Speaker 04:
So let me just tell you how I understand the relationship of the arguments and the lay of the land and you'll tell me if this is right.

[00:01:38] Speaker 04:
So the question whether the jobs that the board mentioned

[00:01:49] Speaker 04:
were high enough pay.

[00:01:53] Speaker 04:
The government says that that is a question that the Veterans Court did not rule on because it was not fairly presented.

[00:02:04] Speaker 04:
There's one sentence in the summary of the argument in your brief to the

[00:02:09] Speaker 04:
I mean, your client's brief, right, to the Veterans Court.

[00:02:13] Speaker 04:
But the point of whether the pay was high enough was otherwise not argued, and therefore you just don't find that any question about proving the level of pay under 416 in the Veterans Court's opinion.

[00:02:28] Speaker 04:
There's no implicit legal ruling, no explicit legal ruling.

[00:02:34] Speaker 04:
So put aside the question of the amount of pay.

[00:02:38] Speaker 04:
What there is is a statement in the board's opinion after a kind of generic analysis, I don't mean generic, non-job specific analysis of physical abilities and mental abilities, and the board concludes Mr. Janich has had the

[00:03:00] Speaker 04:
ability and then says and here are some examples and the Veterans Court says that you say once the board identified examples of jobs he could do not that without regard to whether they were high enough paying just jobs he could do

[00:03:23] Speaker 04:
it had to have concrete evidence and the veterans court said well we don't really need to decide that because the board never really had to say give the examples at all

[00:03:35] Speaker 04:
That second point is to me the kind of interesting one because I think there's a fair bit to be said for the proposition that the level of pay issue you just you did not fairly present to the Veterans Court and so it didn't say anything about it.

[00:03:51] Speaker 04:
So can you just focus on that what was wrong with

[00:03:55] Speaker 04:
what the Veterans Court said, I guess this is really at appendix page 13, about in these, I don't know, it's really two paragraphs.

[00:04:08] Speaker 04:
What was wrong with what the Veterans Court said there?

[00:04:13] Speaker 00:
It said that even if the board didn't provide support for its findings about what jobs are substantially gainful and can be performed by Mr. Janich,

[00:04:26] Speaker 00:
Even if that's the case, like Your Honor said, it didn't have to because Smith said the board is under no legal obligation to identify jobs in the market.

[00:04:36] Speaker 00:
This isn't about the existence of jobs in the market.

[00:04:40] Speaker 00:
It's about a review of a finding that the jobs as identified by the board could be performed as Mr. Janich could perform them at a substantially gainful level.

[00:04:55] Speaker 00:
I do want to briefly dispute the notion.

[00:04:59] Speaker 04:
I keep separating off the substantial gain, because that's not in these two paragraphs.

[00:05:05] Speaker 04:
And I think it's not really in argument D in your brief.

[00:05:12] Speaker 04:
I don't think you really presented to the Veterans Court an argument about the level of pay.

[00:05:21] Speaker 00:
I mean, I think level of pay is... That's just my shorthand for substantially gainful.

[00:05:26] Speaker 00:
Well, I would respectfully push back on that a little bit because that's the case law's gloss on an element of what substantially gainful means.

[00:05:36] Speaker 00:
What we have the board here doing is saying these are jobs he can perform

[00:05:43] Speaker 00:
Jobs with limited social interaction that wouldn't exacerbate his limitations and then here are examples of those jobs and that the summary of the type of job followed by the illustrative example was was essentially dispositive to the board and where the Veterans Court goes wrong is to

[00:06:10] Speaker 00:
to say that even when it's dispositive to the board, there doesn't have to be record support for that finding because of Smith.

[00:06:20] Speaker 00:
And Smith did not even deal with this question of evidentiary support.

[00:06:26] Speaker 00:
It was a duty to assist case about going out and finding evidence about the existence of jobs in the market, which is not what we're talking about here.

[00:06:34] Speaker 00:
We're talking about the board essentially

[00:06:39] Speaker 00:
And here I want to, we're not asking for review of any factual findings, but we have the Veterans Court agreeing that the board had no problem with the evidence Mr. Janich submitted.

[00:06:51] Speaker 00:
And that included evidence that someone with his limitations is incapable of substantially gainful employment.

[00:07:01] Speaker 00:
The board was fine with that evidence, and the Veterans Court specifically acknowledged that the board had no issue with the competence, credibility, or probative weight of that evidence.

[00:07:12] Speaker 00:
Instead of finding some intrinsic defect in that evidence, finding that Mr. Janich did not meet his burden, the board took it upon itself to essentially invent something that got around

[00:07:29] Speaker 00:
because of the board's specificity, what Mr. Janich presented.

[00:07:34] Speaker 00:
It said, well, we think there are these jobs that have these requirements that he could perform.

[00:07:42] Speaker 00:
Therefore, individual unemployability, which I'll refer to as TDIU, is denied.

[00:07:48] Speaker 00:
And so the board didn't have that obligation, but it took it upon itself to do so.

[00:07:56] Speaker 00:
And no one has pointed to any,

[00:07:59] Speaker 01:
Record support for those findings about what jobs mr. Janich purportedly could have done I'm I'm confused about what the issues are that are in front of us at page 13 of your gray brief I read you to say There's no dispute that mr. Janich can do a job with requirements equal to his daily activities Is that undisputed?

[00:08:28] Speaker 00:
Yes.

[00:08:28] Speaker 00:
And the problem, though, is the question at issue is, can he do substantially gainful employment?

[00:08:36] Speaker 01:
And that means an income level and protected or not protected from the competitive economy.

[00:08:44] Speaker 01:
Is that what you mean by is it substantially gainful?

[00:08:48] Speaker 00:
Right.

[00:08:48] Speaker 00:
And that argument

[00:08:51] Speaker 00:
That gets into the second argument, which is that the Veterans Court also said on Appendix 13 that the required analysis ends with a finding that a veteran can do certain things.

[00:09:06] Speaker 00:
And here we have board findings about watching television, going to the gym, et cetera.

[00:09:11] Speaker 00:
The problem is that the second step is can a veteran with

[00:09:18] Speaker 00:
this veteran's limitations and capabilities perform substantially gainful work.

[00:09:24] Speaker 01:
If, just for the sake of argument, if I don't think you preserved a challenge to the amount of money that would be earned from a particular job, and again you've conceded he can do a job, whatever it is, equal to his daily activities, then what issue is in front of me?

[00:09:43] Speaker 01:
How do you win this case nonetheless if the money question isn't in front of me?

[00:09:50] Speaker 00:
We win because we have a Veterans Court ruling that a Dispositive Board factual finding can be unsupported by record evidence.

[00:10:02] Speaker 04:
And why would one not read this page in the Veterans Court opinion to say,

[00:10:16] Speaker 04:
That mention, the sentence in, I guess it's on page 71 of the appendix that begins with additionally, was not actually dispositive, kind of icing on the cake.

[00:10:30] Speaker 04:
Because as we discussed in the Great... The Veterans Court doesn't say that, what I just said.

[00:10:35] Speaker 00:
Exactly.

[00:10:35] Speaker 04:
Why would we not read it that way, anyway?

[00:10:37] Speaker 00:
Well, as we also said that in the Gray Brief, that the Veterans Court did not read it that way.

[00:10:43] Speaker 00:
It ruled based on its misinterpretation of Smith.

[00:10:47] Speaker 00:
But additionally, as we argued in the Gray Brief, the illustrative examples

[00:10:55] Speaker 00:
expand on that prior paragraph.

[00:10:58] Speaker 00:
The gist of that prior paragraph is that the veteran can do work that involves limited social interaction because social interaction would exacerbate his social impairment.

[00:11:14] Speaker 00:
And then it goes on to say, these are the kinds of jobs that are like that because they involve

[00:11:20] Speaker 00:
They don't involve constant supervision.

[00:11:22] Speaker 00:
They don't involve a lot of social interaction.

[00:11:25] Speaker 04:
So it's a holistic analysis with a- So would one way of describing this be as follows?

[00:11:31] Speaker 04:
When you start a page, I'm now looking at the board opinion.

[00:11:37] Speaker 04:
There's a lot that leads up to this, but they're then on page 70, as it relates to mental capabilities, and the next paragraph, as to the veterans' physical capabilities.

[00:11:53] Speaker 04:
And then, right, and those two are about capabilities, but they haven't yet connected it to work.

[00:12:03] Speaker 04:
Exactly.

[00:12:05] Speaker 04:
the summary accordingly.

[00:12:09] Speaker 04:
Now it's starting to talk about

[00:12:12] Speaker 04:
work, jobs, with a couple of additionales.

[00:12:17] Speaker 04:
And so the additionally that has the key sentence about warehouse worker, assembly line worker, or custodian is actually a important part of the analysis because it ties task capabilities to work.

[00:12:33] Speaker 00:
Yes.

[00:12:34] Speaker 00:
And the similarity of the task capabilities for work in those two paragraphs is what ties it together.

[00:12:42] Speaker 00:
So it's really all one analysis there, despite the additionally, which is I think we're making that additionally do a lot of work to say that this is just an afterthought here.

[00:13:01] Speaker 02:
You're into your rebuttal time.

[00:13:03] Speaker 02:
I will reserve the remainder of my time.

[00:13:19] Speaker 03:
The Court lacks jurisdiction over this case.

[00:13:26] Speaker 03:
This appeal challenges the Board's factual determination that Mr. Yannick was capable of securing a substantially gainful occupation.

[00:13:34] Speaker 03:
It's well established that this Court may not review challenges to factual determinations or challenges to the application of law to facts.

[00:13:42] Speaker 03:
In this case, the board thoroughly discussed the totality of the evidence in a detailed 25-page opinion.

[00:13:51] Speaker 04:
I think, as you probably surmised by now, to me, what's in front of us comes down to two paragraphs on page 13.

[00:13:58] Speaker 04:
And it's not at all clear to me why there isn't a legal conclusion

[00:14:05] Speaker 04:
that is being asserted there namely that because under Smith there is no obligation on the part of the board to determine availability of particular jobs in the market that it doesn't matter as a matter of law it is harmless whatever the board said about particular jobs

[00:14:33] Speaker 04:
That seems like a legal proposition, a legal proposition about harmless error and maybe about concrete evidence that is at least before us to consider whether it's correct or not.

[00:14:51] Speaker 03:
The reason why I disagree with that characterization of the Veterans Court opinion is because in the paragraph right below on the bottom of page, appendix 13, where the Veterans Court explained that the board is only required to assess the appellant's educational and occupational history skills training and whether he has the physical and mental ability

[00:15:17] Speaker 03:
to perform tasks required by an occupation, and that given that the board found that the appellant has the physical and mental abilities to perform tasks with limited interactions with others, it supplied the requisite assessment, and this finding is not clearly erroneous, given its plausible nature.

[00:15:33] Speaker 03:
To me, it looks like the Veterans Court recognized that the board's obligation is to assess the capabilities, the mental, physical capabilities, the educational background, the skills and job history of the

[00:15:47] Speaker 03:
veteran to determine whether they're capable of a substantially gainful occupation and because The board did that in this case and it's clear from reading the board's opinion that it did carefully assess his employment background his mental capabilities physical capabilities it performed the requirement assessment conducted an analysis of the practicality of Whether whether the jobs that they were looking at are substantially gainful or not

[00:16:13] Speaker 03:
Well, I don't think the board made a specific finding as to those particular example jobs, in part because the board recognized that those example jobs were merely illustrative of potential occupations and not exhaustive.

[00:16:29] Speaker 02:
But if we were to find that that is the case, that there was no analysis, that would be a legal question, wouldn't it?

[00:16:35] Speaker 03:
Well, I think it could be if the court was to require a specific finding

[00:16:41] Speaker 03:
about whether particular jobs are substantially gainful.

[00:16:45] Speaker 03:
If that's required as a matter of law, that would be, I think, appropriately characterized as a legal issue.

[00:16:52] Speaker 03:
But in this case, there is no obligation to identify specific jobs as part of a TDIU determination.

[00:16:58] Speaker 03:
And the appellant recognizes that.

[00:17:01] Speaker 03:
It's not required.

[00:17:02] Speaker 03:
And I just don't think below there was an issue that was raised about whether these jobs were above the poverty line or not.

[00:17:10] Speaker 02:
Are you saying that the term substantially gainful, that that has no meaning?

[00:17:14] Speaker 03:
No, it has a meaning.

[00:17:18] Speaker 03:
It's just that the meeting was not in dispute below.

[00:17:21] Speaker 03:
I think the parties recognized what that meant below.

[00:17:25] Speaker 03:
And then to identify an issue about whether there needs to be a finding about a poverty level on appeal, I just don't think that it was fairly raised below.

[00:17:38] Speaker 03:
I think, address the economic and non-economic aspects, including the poverty determination.

[00:17:44] Speaker 03:
In some way, in the opinion, at the very bottom of page 72 in the appendix, the board explains, in accordance with the court's holding and reg,

[00:17:53] Speaker 03:
the board has considered the economic and non-economic components of the Veterans TDIU claim.

[00:17:59] Speaker 03:
And then if you look at what Ray says, in Ray the Veterans Court explained that the economic component simply means an occupation earning more than marginal income outside of a protected environment.

[00:18:11] Speaker 03:
And the board recognized that requirement.

[00:18:15] Speaker 04:
Is the expression more than marginal equal to above the poverty level?

[00:18:23] Speaker 03:
I think it is used as a substitute for that phrase.

[00:18:36] Speaker 03:
But I don't think there was any dispute below about poverty related issues.

[00:18:42] Speaker 03:
Mr. Yannick's argument to the board was that he could not perform any occupation.

[00:18:47] Speaker 03:
And he had a vocational assessment presented to the board that opined that he was incapable of any social interaction necessary to sustain any job.

[00:19:00] Speaker 03:
There wasn't a dispute about whether he was on the border

[00:19:02] Speaker 03:
of being able to perform work above or below the poverty line.

[00:19:07] Speaker 03:
That was just not part of the issues that were raised to the board.

[00:19:12] Speaker 04:
But putting aside the question of amount of pay, explain what you think is the role in the board's opinion, 70 to 71 really, of those illustrative examples.

[00:19:30] Speaker 03:
I think

[00:19:31] Speaker 03:
The role of them is to provide helpful information to the veteran.

[00:19:36] Speaker 03:
After doing the required legal analysis of assessing the veteran's physical capabilities, mental capabilities, jobs, training background, all of the work that's required to be done to come to the determination that he was not precluded from substantially gainful occupation, I feel like the board wanted to provide further guidance to help him identify what additional jobs he might be able to do.

[00:20:01] Speaker 03:
even though it's not required, even though it's not legally required.

[00:20:04] Speaker 03:
That's what the board did here, to just try to be helpful.

[00:20:09] Speaker 03:
And now it's turned into an issue.

[00:20:12] Speaker 04:
I guess I'm not going to be able to say this as precisely as would be helpful.

[00:20:18] Speaker 04:
But I guess I can imagine a situation where the board, as fact finder, is thinking about the generic abilities to perform tasks.

[00:20:30] Speaker 04:
It's pretty convinced that the veteran can perform a bunch of different tasks, physical capability, mental capability.

[00:20:37] Speaker 04:
But it hasn't yet reached a conclusion that there are the right kind of jobs that go with that.

[00:20:44] Speaker 04:
And so a identification, I can imagine, of particular jobs might actually be important to the fact finders reaching the crucial finding of fact.

[00:21:00] Speaker 04:
And because that's a possibility, I guess I worry that the language in the Veterans Court opinion, I'm now switching over to A13, seems to say, well, because it is not always necessary to give individual examples, any defect in the giving of individual examples must be harmless.

[00:21:26] Speaker 04:
That doesn't seem right.

[00:21:30] Speaker 03:
Well, let me try to explain my views on that.

[00:21:36] Speaker 03:
I think as to this particular case, there was no

[00:21:41] Speaker 03:
there is no requirement to identify particular jobs, even if there might be in other cases where there could be a dispute about whether specific tasks really do have an occupational translation.

[00:21:52] Speaker 03:
To look at what the board found as the physical capabilities, there was no... Right.

[00:21:57] Speaker 04:
I guess I'm really interested far more in what the Veterans Court said than in what the board said.

[00:22:04] Speaker 04:
except insofar as what the board said informs what the Veterans Court meant.

[00:22:12] Speaker 04:
Where in these two paragraphs on page A13 do you think the Veterans Court most clearly said

[00:22:21] Speaker 04:
We think that the board actually independently reached its conclusion about substantial gainful employment before considering the illustrative examples.

[00:22:40] Speaker 03:
most likely place for that is in the block quote.

[00:22:45] Speaker 03:
It's quoting your brief.

[00:22:47] Speaker 03:
Right.

[00:22:47] Speaker 03:
Well, the block quote, it's quoting the secretary's brief.

[00:22:51] Speaker 03:
Isn't that you?

[00:22:52] Speaker 03:
It was not me, no.

[00:22:53] Speaker 03:
No, no.

[00:22:54] Speaker 04:
You are always the client.

[00:22:56] Speaker 03:
Right, right.

[00:22:56] Speaker 03:
Yes, yes.

[00:22:57] Speaker 03:
It was from the secretary's brief at the Veterans Court.

[00:23:00] Speaker 03:
And this doesn't specifically identify the timing of where in the board's decision the factual finding

[00:23:08] Speaker 03:
was made, but it does talk about how the board provided the required assessment of the appellant's physical and mental capabilities.

[00:23:18] Speaker 03:
And to me, it seems that that is what the Veterans Court agreed that that's what the board did, that it performed the required assessment.

[00:23:25] Speaker 03:
And so therefore, any additional discussion about particular occupations was superfluous, maybe icing on the cake, but not required.

[00:23:35] Speaker 03:
I think that's what we have here.

[00:23:38] Speaker 01:
Isn't the Veterans Court over reading Smith, though, in saying essentially all the board has to do is determine what tasks the veteran is capable of, and then you're basically done?

[00:23:52] Speaker 03:
I don't think so.

[00:23:54] Speaker 03:
And I know the argument has been raised in the appellant's brief that the board read the substantially gainful requirement out of the analysis.

[00:24:03] Speaker 03:
But if you look at the very first sentence,

[00:24:05] Speaker 03:
of the Veterans Court's discussion of TDIU on Appendix 11, the very first sentence says, TDIU will be awarded by the board, quote, when a veteran cannot secure or follow a substantially gainful occupation.

[00:24:17] Speaker 03:
And to me, it seems like the Veterans Court recognized the substantially gainful requirement and determined that it had been met.

[00:24:26] Speaker 03:
The board clearly recognized that requirement.

[00:24:29] Speaker 01:
Is it enough, though, just to itemize the tasks that the veteran is able to do, and then anything else is just icing, and so if you make a mistake on anything else, it's harmless?

[00:24:41] Speaker 03:
No, I don't think that's enough.

[00:24:43] Speaker 03:
I don't think it's a task-based assessment.

[00:24:45] Speaker 03:
I think the Veterans Court and the board explained that there's more to it than simple tasks, that there's an evaluation of whether the service-connected disabilities

[00:24:56] Speaker 03:
preclude a veteran from following substantially gainful occupation.

[00:25:00] Speaker 03:
And that involves a holistic assessment of the veteran's educational background, physical capabilities, employment history, skills training, education.

[00:25:08] Speaker 01:
And that's what happened.

[00:25:09] Speaker 01:
So let me ask you this.

[00:25:11] Speaker 01:
Would you agree it is a question of law within our jurisdiction whether under 4.16 and Smith, it's enough for the board just to itemize tasks?

[00:25:21] Speaker 01:
without doing the rest of those things.

[00:25:23] Speaker 01:
Sounds like a question of law to me.

[00:25:25] Speaker 03:
Right.

[00:25:26] Speaker 03:
I mean, I think framed that way, it is a question of law.

[00:25:29] Speaker 03:
But as applied to what happened in this case, to me it seems like a dispute about the factual finding of a TDIU determination.

[00:25:38] Speaker 03:
Neither the board nor the Veterans Court said that a task-based analysis is enough.

[00:25:42] Speaker 03:
I think to look at one sentence of the board's opinion that does not include the word substantially gainful, or the Veterans Court opinion that does not include the word substantially gainful, but then you see it referenced clearly in the very beginning and throughout the opinion, there's a recognition of this requirement.

[00:25:58] Speaker 03:
And the Veterans Court didn't change the legal landscape of TDIU by reading that out, by taking that out in this case.

[00:26:15] Speaker 01:
I have another question for you.

[00:26:18] Speaker 01:
Whether the amount of income question is in front of us, I see in footnote four on page 24 of your brief you say that he didn't argue that below, and therefore it's waived.

[00:26:31] Speaker 01:
Do you make that argument elsewhere in your brief?

[00:26:33] Speaker 01:
Because I'm sure you know we have cases that say if you just raise something in a footnote, then we tend not to give you credit for it.

[00:26:41] Speaker 03:
Well, to be honest with you, from reading the opening brief, I couldn't tell if that argument was really being made or not.

[00:26:48] Speaker 03:
And so I addressed it, and I thought in an appropriate, responsive way, basically to the extent that this argument is being raised for the first time.

[00:26:56] Speaker 03:
It's been waived.

[00:26:58] Speaker 03:
That's, I think, the only place in my brief where I mentioned it.

[00:27:01] Speaker 03:
But I was trying to address it, commensurate with my understanding of how it had been raised in the opening brief.

[00:27:07] Speaker 03:
And I just don't think it was raised below.

[00:27:10] Speaker 03:
That's why the Veterans Court didn't address it.

[00:27:12] Speaker 03:
And there was no dispute.

[00:27:13] Speaker 03:
I don't think there was any dispute at the board about marginal income or poverty levels, because the entire basis for the Mr. Yannick's argument was based off of a vocational opinion that said upon that he couldn't perform any work.

[00:27:29] Speaker 04:
It wasn't a dispute.

[00:27:30] Speaker 04:
Would it be right to say that on the question of adequacy of pay,

[00:27:36] Speaker 04:
forfeiture here, there are kind of two sides to the same coin, not made below, and kind of independently, no legal ruling by the Veterans Court.

[00:27:48] Speaker 04:
And in the absence of a legal ruling, we don't get to speak to it.

[00:27:51] Speaker 04:
I think that's exactly right, yes.

[00:27:56] Speaker 03:
There are no further questions, but we respectfully ask that the court dismiss or affirm.

[00:28:01] Speaker 02:
Thank you.

[00:28:17] Speaker 00:
Want to first address Judge Toronto your point about identified jobs might possibly be key to the factual finding and the the conflation by the government of whether They're legally required and whether they need to be supported by evidence if they are key to the factual finding as they were here and

[00:28:43] Speaker 00:
A reviewing court simply cannot affirm an administrative tribunal's factual finding that doesn't have record support in the evidence.

[00:28:53] Speaker 00:
And that is the case under the statutes that govern the board's factual findings and the Veterans Court review of those findings.

[00:29:02] Speaker 04:
And just to... But it could, I'm sorry, but a court can say that error might be harmless.

[00:29:09] Speaker 00:
It could, but it can't do so on a misreading of the law as it did here, especially where it was key to the ultimate determination of entitlement as it was here.

[00:29:24] Speaker 00:
Just a quick point on the amount of pay issue.

[00:29:29] Speaker 00:
It is one part only of the substantially gainful analysis, and when

[00:29:36] Speaker 00:
When parties in the Veterans Court engage in a conversation about substantially gainful, it implicitly encompasses amount of pay and work outside of a protected environment because the regulation spells those two things out as the components of substantially gainful and the Veterans Court's case law has expanded on that.

[00:30:00] Speaker 00:
So the argument that

[00:30:04] Speaker 00:
that the board needs to make findings about the components is substantially gainful and not just make an assessment of tasks was raised to the Veterans Court.

[00:30:18] Speaker 00:
And particularly, it was re-raised in the motion for reconsideration on pages 18 to 19 of the appendix.

[00:30:27] Speaker 00:
Key ultimately is he submitted evidence, Mr. Genich submitted evidence that he could not perform substantially gainful employment with his limitations.

[00:30:37] Speaker 00:
The board said no, because here are jobs that are substantially gainful.

[00:30:42] Speaker 00:
And the Veterans Court affirmed that finding.

[00:30:46] Speaker 00:
And to affirm the Veterans Court, this court would have to say that it's OK for there not to be record evidence supporting those findings.

[00:30:56] Speaker 02:
Is your view that the error was there's no evidence supporting a substantial employment finding or that the error was just that the analysis was never done at all?

[00:31:11] Speaker 00:
It was the Veterans Court's holding that it was harmless as a matter of law that the board didn't support those findings because of its over-reading of Smith.

[00:31:21] Speaker 00:
It's of no moment whether the board is required to identify jobs if it does do so and makes that dispositive.

[00:31:29] Speaker 00:
Once it does, it needs to support those findings.

[00:31:33] Speaker 00:
So we would ask the court to vacate and remand for the Veterans Court to apply the correct law to its review of the board's decision.

[00:31:42] Speaker 00:
Thank you.

[00:31:43] Speaker 02:
Thank you.

[00:31:44] Speaker 02:
That concludes today's arguments.

[00:31:46] Speaker 02:
This court now goes into recess.