language in full force sixteen was misinterpreted and how and where the specific language is the phrase to secure and follow substantial gainful occupation further in the regulation is the definition that is provided for marginal employment the specific to whether those demands a question is a fact  yes you found in this case the question that was presented below by mr gonzales was whether or not to be a examiner provided an adequate opinion that addressed the issues necessary for a determination under four one six and that's a question of fact applications lot of fact no jurisdiction but this is not a question about what cased of law the fact this is a question of whether or not when the court found that should be a examiner had ultimately provided an opinion as to his as mr gonzales is functioning including his ability to work constitutes a misinterpretation of the regulation the ability to work is not the criteria or the legal standard under four one six if ability to work or the standard then there would have been no need for the v a and its regulation to indicate that the phrase substantial gainful occupation was not considered to be exist if the veteran was unable to obtain more than marginal employment in other words a veteran is capable of working but not to the extent to which their work produces more than the poverty threshold old as defined by the regulation and that means that a veteran can in fact be able to work as the examiner in this case says maintain employment in the job that did not require much interaction with the public and where he did not have to interact frequently with supervisors but such a statement does not go to whether or not such and in vision job as it might exist does in fact indicate that the veteran could earn more than the poverty threshold it simply makes a statement that he has the ability to work the ability to work is not the correct legal standard under four one six isn't it fair to say that the veteran's part was simply parroting back the very language that you use in your court at one court art and j a e d for your prepare the veterans court that the board had a duty to request a medical opinion to discuss what effect the veteran service connected disability had on his ability to work and then later you say the medical opinion obtained by the v a in february two thousand and seven did not discuss what effect mr gonzales's service connected disability from post traumatic stress disorder with alcohol abuse had on his ability to work that's correct and then the veteran fourth response to you talked about a number of thing about how in fact examine physician did a very thorough job in evaluating the medical condition of your client including among other things his ability to work but not whether so in the context of that it sounded like you were the one that maybe got the ball rolling with this particular phrase and the veterans co simply using it but the veterans court still has an obligation double standards now i may have in articulately presented in my brief a lot of to apply the law correctly and apply the correct legal standard and even if i assert an incorrect legal standard is not appropriate for the lower court to adopt that incorrect legal standing at least to its it could just simply be you know evidence of unemployability is simply a factor to be considered in the overall determination of whether someone can get substantial gainful employment but your honor the way in which this issue was presented below had to do with the adequacy of the medical examination that  was placed issue was whether or not the exam which was provided and the ability to work is defined by the provisions of four point one six and those include the ability  to have marginal employment we don't have any issue with the way the board below handled the substantial gainful employment issue right yes i do your honor because they relied upon the only evidence they had to deny it that simply addressed his ability to work not in terms of whether or not that ability to work met the criteria that they were to be considering under four one six and that criteria includes was he capable of doing more than marginal employment to be able to work includes under the v a s regulation the ability to do marginal employment is a veteran is capable of doing less than marginal employment and there's marginal employment includes employment in a protected environment such as a family business or sheltered workshop i believe that's the only food vision i could find that deals directly w of substantial gainful occupation and clearly the regulations states that marginal employment i don't know i found something the v a manual here that says substantial stand for employment is defined as employment which non disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resigns you're not familiar with th but i'm not i know i'm not but that definition doesn't seem to have any application here in this context we're dealing with the v a examination in which the examiner simply opined that he believed that mr because that's that is precisely the examiners opinion that was attacked by mr gonzales below and the veterans court found that the examiner ultimately provided an opinion that was consistent with his ability to work using the ability to work limited phrasing is inconsistent with the plain language of the regulation this is the benefit which he was seeking this is the only parameter that was to be considered not whether there were other jobs within the community but whether or not this examination was or was not probative and competent to address the question posed by four one six and the question  four one six is whether or not the veteran can secure and follow substantial gainful occupation not whether or not he would be able to maintain employment in a very narrow specified set of circumstances that may or may not generate a marginal influence and this is purely speculative on the part of the examiner and doesn't go to the salient question which is whether or not the veteran is capable of more that marginal employment that is the critical question and when we talk in terms of ability to work it is defined by the v a s regulation because he is entitled to that benefits if he meets those requirements and in this case he was found during one period of time to meet those requirements and in another period of time based exclusively on this v a examination not to meet those qualification i can understand intuitively how often is ition would no be able to say you can do these activities and so not lots of exposure to supervision community i don't believe that i have no reason to believe that they do or that they would any more than i believe that a psychiatrist would be necessarily capable of determining whether or not a veteran could or could not secure or follow substantial gain to lock a patient but that is the current methodology that is relied upon by the v a to determine whether or not a bet for and against what i'm aware of this is leading me to wonder whether severity of his condition because a g s score that is that below fifty indicates an inability to work by the very nature of the assignment of that g s course of action that's a natural inability to work court for the board separately address the question of ability to work on the one hand and how much money he could earn doing certain work on the other hand i don't i don't think he did it my reading of the record is that he did not although that is not an issue that mr gonzales raises breed so it's not something that i review the entire record but i mean i guess in a way it feels to me that that's in fact the heart of what he's arguing about he's saying  to the find that somebody is able to work is not in fact the fines that they can make a living the substantial gainful employment that that there's a gap there and that gap is precisely what the better and sco disregarded so i guess i'm asking the question did he present that case evidentiary or otherwise that even if the meadow medical examiner was correct about the first stage able to work nevertheless i had evidence and there's no contrary finding that i couldn't turn more than marginal marginal living off that i don't think there's any evidence that fact but that to be clear that argument has not been made until s census bureau at the poverty threshold for one person and or on a fact down basis it includes but is not limited to employment in a protected environment such as a family business or sheltered workshop when earned annual income exceeds the property threshold so that definition comparable to the particular occupation in the community where the veteran resides and you complain to me what the government thinks that means well that it's not the clearest language but it appears to be the flip side of this whole marginal employment concept where marginal planing is employment below the poverty threshold or over the poverty threshold that you're working in a situation where i'd not a disabled person normally wouldn't be working your family's employing you were non disabled person would be employed  g some sort of protected were shocked were not disabled persons would be employed you have to show that you that your disability prevent you from getting any job in your community that is not a disabled person could do so what does that mean the particular occupation in the community where the veteran resides is that whose whose occupation what occupation i'm not exactly sure what that means but it's courts veterans court and that the the board generally defined stance on being blocked addition as being able to showing that you're capable when it severely severely deteriorated did not prevent him from working and the examiner made findings include conclusions about that which the board for and in the veterans court affirmed he had worked in the railroad brakeman during the period when he said he had conjecture as to whether or not he could return without any reference to the information that was just provided by counsel about is having previously worked as a real brakeman his past employment is not relevant what is relevant is whether or not at the time he at issue in this case recently was two thousand and five to two thousand and eight he was capable of securing and following substantial gainful occupation and in our brief below we indicated that the opinion offered no evidence either positive or negative at as to whether or not this work that was referred to would result in mr gonzales as being able to secure follow gainful occupation and the we cited to the court their own case law that says that the court may not give me the board may not reject the veterans claim without producing evidence as distinguished from m conjecture that the veteran can perform a work that would produce sufficient evidence to be other than marginal this is at the crux of the interpretation made by this case that  a medical opinion that simply refers to the ability to work is not consistent with the interpretation of the regulation and to add to the response to your question about where the poverty level language comes from your honor that is precisely