disability this finding relied on a v a medical examination that made the same conclusion in so doing they applied the wrong legal standard under the political provision of law which is four point one six b the veterans court erred by affirming they or its decision which relied upon an incorrect legal standard the correct legal standard is whether or not a veteran is capable of securing or following substantial gainful occupation that permits by the very definition provided by the v a and its own regulation that a veteran may work by finding that it is possible that the veteran may work whether you characterize that work as sedentary or not is simply not relevant to the disposition of whether or not under the regulation the veteran is capable of performing securing obtaining some substantial gainful occupation under the regulation that is a misinterpretation of the regulation i don't i'm really quite unclear honestly i don't know what it is you're arguing i understood you your i thought you were arguing something about shifting of the bear the burden should not be on the detriment to kind and that's what happens when you use that in correct legal standard the correct legal standard has to do with the ability to secure or follow substantial going to say they've just i thought you were just telling us the correct standard is whether or not he's capable of securing a following substantial gainful occupation when you impose a burden as the veterans court did to demonstrate that the veteran is capable of doing centenary work that shifts the burden to the veteran to prove something that isn't part of the requirements of the regulation incapable of performing postal work and janitor oil work which he had done previously then he should automatically be title to the award because he can't do those jobs that he had before is that your position of how does that that would be the correct outcome in this case but i do not believe that that as you phrased it correctly describes what is going on under this regulation under this regulation your honor the v a has defined what constitutes substantial gainful occupation by using the term marginal employment and explicitly providing within the provisions of four point one six a a definition of marginal employment marginal employment allows a veteran to work so long as that work does not produce income more than the poverty level that is the definition and when you shift the burden to the veteran to come forward with evidence that describes an ability to or excuse me an inability to prove a negative that said terry work would not do that then you shift the burden to the veteran in this case to the forward have concluded in terms of what they give they have all these medical reports and they say he can perform janitorial a postal work but he can't perform sedentary employment and you're saying that that conclusion should have led them to say and therefore he's entitled to t d i you absolutely wrong because he does know can no longer perform as there is no affirmative evidence in this record that the veteran is capable of even when he does sedentary work to do sedentary work which reproduce income more than the marginal employment or skinny poverty level as defined by the v a s own regulation i mean i don't know i don't have question right in front of me but i mean the record of there's no evidence that he's incapable of that and that's where the burton shifting comes in your honor the obligations of the claimant of some burden to to provide some evidence and he did he provided evidence that he was terminated from his employment with the post office he provided evidence that he was eventually awarded social security disability benefits and he provided evidence that he has not worked since two thousand and two the v a it is the obligation of the v a to show that the veteran is capable there is no affirmative evidence in this record that he is capable even if he could do sedentary work to earn more than the poverty level well the step the terms i don't know where the poverty level comes and a and b both refer to substantially gainful occupation so i don't i don't know what that four one six that's what the criteria for one six a explicitly states for the purposes of this section marginal employment generally will be deemed to exist when the veteran earns annual income that does not exceed the amount of stablish by the substantially gainful occupation which is what defined at the department of labor means this yes because that's what the v a defined in its own regulation they were the ones that shows that mark and they specifically th go on to say your honor in regards to marginal employment that  marginal employment may also be held to exist on facts found included but not limited to employment in a protected environment such as a family business or sheltered workshop when the earned enderle income exceeds the poverty level so in that alternative definition the v a has provided by regulation that if you work in a sheltered workshop or you work for your own family business you only have that job because of your familial relationship you do not have that job there was no there was no circumstance put in front of this this case does at least from what i can tell on the record it didn't present a question when they said you're able to work because you've been working at the job and he came in and he because if that's the definition that is provided by the v a to guide its adjudicators under terminating whether or not a veteran is were isn't capable of substantial gainful occupation the operative word being substantial more than the poverty level but let's let's back this up just a moment what we're dealing with here is an issue that was raised by the veteran that the board did not give an adequate statement of reasons or ba about his vocational aptitude for what he was capable of doing and the b s regulation four point one six b expressly provides that the v a is required to account for the employment history educational and vocational attainment the veterans court described that as a vocational assessment and then said that a vocational cesspool would not did not need to be provided would not be of any benefit that is a misinterpretation because the regulation expressly provides that you must take it that into consideration and in particular taken consideration the reason for the termination of the veterans employment the veterans employment in this case was terminated two thousand and one by the post office the post office that he was no longer capable of working for the post office because of his service connected the if you're not challenging that weariness where is the evidence that you think is missing supposed to come from other than the claimant by making the book ational assessment that the veterans court said was not necessary under four point one six b that vocational assessment requires an analysis of the employment history the education this is a veteran who only has a high school degree but are true then isn't that really capability if they choose not to make the assessment which they chose not to do in this case they cannot then go on to say we rely on the possibility that you could do sedentary work the possibility that he could work is not part of the criteria under this regulation the regulation requires substantial gainful occupation are you saying they couldn't have made the assessment that they made without having the that's correct your honor they have to have affirmative evidence as part of that vocational assessment that looks at the veterans employment history the kinds of jobs that he or she has done before their education and their vocational a the most this veteran ever got to was being a guard at the post office and being a maintenance person at the post office he had no skills it's not like there are any number of sedentary would he have been capable of getting that job and that job producing it so if this is not the shifting of the burden here as described in the briefs is when the government then comes on and  the obligation imposes the obligation on the veteran to demonstrate that he would not be able to isn't part of the problem here the fact that the claim itself is it's like proving a negative total disability based on individual unemployability that's right when your claim is i'm i'm objectively i am one of my education and my experience and capabilities is incapable employment at a negative and he is allowed to rely upon that assertion particularly when the other facts are as they are in this case unless the v a comes forward and demonstrates that there is something about he is would be possible despite the appellant's need disability that a vocational assessment would not provide any benefit and therefore is not the point and the board then went on to find that that was inadequate statement reasons or that can not be correct under the proper interpretations of four one six b because the obligation to do what the veterans court calls a vocational assessment is mandatory it is not permissive this is not the well let's be clear you are in the regulation when they use the term warrant there there were referring to the rating i am under this regulation there is a referral that is made to the director of compensation services who makes the ultimate determination in this case neither the v a regional office nor at the warrant a veteran's appeals chose to make that referral so this case is just about making the referral so that the director can make the determination so this was were cut off at the pass it was not made a referral because there was no reference in any of the documentation that indicated what the veterans co a vocational assessment i agree with you in the book ational attainment and vocational assessment are probably near equivalence but in this context it's also about their education in this case i school education and their employment history which in this case was pre service a grocery store clerk and post service a job with the post office doing guard work and me mr kirby you're not arguing that  consideration as mandated by the regulation of the veterans education is ok tional attainment and it remarkable that their vote was look what what in this record suggests that they didn't do that the board decision it statement of reasons or bases had not been made by the war in its decision the court rejected that saying that it wasn't required to do that so the question here is is is there a mandate in for one may please a court i'd like to first address the argument that mr patterson's attorney made in his brief which if you open up his first brief at a simply stated the veterans court relied upon a misinterpretation of four point one six when it required m certainly my understanding of the argument presented in mr peterson's brief was that the full the first full paragraph on this page was where the legal error happened which is that the argument was that this language quote  not pointed to any evidence in the record of proceedings demonstrating that his level of education in his past employment experience categorically preclude him from centauri employment that would provide more of the marginal income that is the issue that was presented in the opening brief as containing and it you eroni is legal interpretation of four point one six somehow inappropriately requiring mr peterson to have provided affirmative evidence and as you point out in our brief all this statement here is that when conducting their clearly erroneous review the veterans court simply stated where you're not challenging the duty to assist in where you can see you are mentally and physically capable of sedentary employment you need to at least point to something in the record that will allow us to find out the board got this wrong and you haven't done that and i will look at the statement above that look at the the end of the first paragraph th concluded and i think that quarter veterans claims embraces this conclusion at some point that while his work my experience work experience might limit his employment opportunities it does not seem that the lack of a college degree w identification by the claimant as to what he believes he's prevented from doing as a result of his disability and here we're talking about two twenty percent disabled needs the evidence at the board discusses in their board decision ma clear repeatedly that the examination examiners said you are capable of also in three employment there was no there are circumstances where someone is in people certain types of sedentary employment because they can't sit for long periods of time here  secretary as receptionist blah blah blah and they've all rejected me either because i don't have a high school diploma or because i have no prior experience relevant experience is that in your view that's sufficient and certainly t a high school education and he has an employment history showing that he can hold a job with federal agencies so the facts you change are the critical facts that could demonstrate that in fact he is incapable of having  here and i think we're straying a little bit into the reasons and bases argument well what about mr carpenter's argument this morning on the last race and b which talks about the requirement that the board the rating board now include a fourteen in the original when the court in the last sentence of the carry over paragraph says the court finds that the board has provided adequate statement of its reasons what it is doing is saying that the description of the assessment would not provide any benefit and therefore is not required one way i guess of making the legal point is that it is legally erroneous to say you never need a vocational assessment when you have the possibility of sedentary sedentary employment that is legally erroneous you that's legally erroneous it's category incorrect because it's categorical if they had made that kind of moral same and that could possibly be illegal interpretation certainly this court could review i think what mr carpenter's argument is doing is it's combining the explanation that the peterson is not entitled to t d i you the vocational assessment piece is that j fifty nine and it is after the fact it is after the board has already discussed the evidence all the medical records including s s a records where they found that he was not unemployable it said that they find that you know as a stated that the veterans capable of performing physical mental lacks and that is not precluded by his education employment it then goes on to say that this court's decision and smith requires board to consider whether vocational assessment is required and i'm reading from the first full paragraph on j fifty nine it explains why the board's determination of a functional assessment was not required and that's all that's court can review that terminations but this court can't review the veterans court review of that because that is an application of last fact what's what's bothering me about this case and that's it's i don't think that's an argument  carpenter is making because he seems to embrace the language that is you names which is capable of performing that very work but what i see a disconnect between the language used in the regulation which is not whether you're capable of performing certain kinds of work it says whether you're unable to secure in both a m d the standard is unable to secure gainful employment not whether the capable of doing it but whether you are able to secure to me there's a little bit of a difference capable seems more generic and you know generally capable of doing anything but whether you are not seems to me that an able to secure gainful employment is a little stronger you understand  do but i think this strays into an argument that came up in smith which is whether or not this is an assessment of whether the individual can actually obtain a job in the city they live in and the court there said that for the s s a context here it's are they mentally and physically capable of securing and yes you can read security be actually you know apply for get a job and become employed i think in this context where the disability review is the effects of their service connected disability on their capability it's can they apply for a job are they physically and mentally capable of going through the tasks required to see shore a position and then if they do can they maintain that position here it would be practical matter and it's not just because the employment unemployment rate is ten percent it's that i've tried and i've been rejected because i don't have the necessary qualifications and i don't have the necessary experience the ability to actually become employed and be considered in the regulation is clear that work history and education needs to be considered but i'm not sure where that line is drawn i don't think this is the right case for that determination but certainly our circumstances where someone shows up with a hypothetical that your honor described and i would say in that instance it's quite likely that the v a would have gotten a vocational assessment in that instance because someone with those unique characteristics would pretty probably present  a unique situation that would require something beyond the board's expertise which is what the standard incidence is for when it's necessary to obtain a vocational assessment i just want to respond to one more thing that mr carpenter noted when he was up here he said that the veteran should be allowed to rely on the assertion that they are incapable of performing or securing or maintaining sedentary employment and and that argument is essentially it's wrong it's two reasons one there's a presumption of soundness that applies to a veteran here so the v a doesn't go in presuming that the person is fully disabled or that and  will admit that i'm not as familiar with the case law about that portion of four point one six a i certainly didn't read it in preparing for this argument because it wasn't part of the issues that were briefed so there is no allegation below that she's capable of further they look at whether there are in fact sufficient jobs available for someone applying for disability and they identify using i will labor statistics four hundred seventy five photographic processing operator jobs and twenty nine thousand don't provide marginal employment income and it sounds a little bit like he's trying to reiterate the argument smith to satisfy that marginal employment threshold beautiful creational expert who can look at how much the se i'd like to begin with smith smith is a a duty to assist case be it involved the question of whether or not the v a was required to obtain a vocational opinion this case is about the interpretation of four one six b when it uses the language that the veterans court characterized as a vocational assessment those are two entirely different concepts a opinion under the duty to  is something that the veteran in smith was trying to impose upon the v a here we have a v a regulation that expression imposes the obligation on the rating war when making a referral to make a full statement that the veterans court call a vocational assessment as to the veterans employment is education and his vocational attainment the key here is that this is a regulatory mandate something the v a imposed upon itself next is the distinction that your honor correctly drew between the shifting of the burden to the veteran to demonstrate his ability to do send terry work that will produce substantial gainful occupation the burden here is on the v a to show that he is not capable he is entitle to it and the record clearly demonstrates that from two thousand and two to the present he has had no earnings because he has been unable to work the v a takes that favorable evidence along with is lay evidence that he is not capable of getting a job due to his service connected need disability for which he lost his job at the post office and has not worked since two thousand and one and then flip that burden and says you must show us the veteran court says you must show us you must point to something in the record that says that you would not earn substantial gainful occupation that is not the obligation under the regulation one final thought and that is that this case has always only been about the board considering these we are not asking this court to determine that there must be an awar the interpretation simply is whether or not for one six b requires the board to consider what the veterans court called a vocational assessment what what is described in the v a s own regulation as consideration of the education the vocational attainment and the employment history and that simply was not done in this record and the veterans court said that was ok and it is not