well one five seven zero five seven mentor versus mcdonald the misinterpretation by the veterans court in this case involves the provisions of thirty eight c f r four point one six a and a shown by the following statement in the decision below nothing in the medical reports as a whole however indicate that this mithras ability to do sedentary work would be limited to protect the environment such as family business or sheltered workshop or otherwise limited positions that were not substantially that were not substantially gainful employment based upon the plain language of four point one six employment in a protected work environment is by the definition provided in the regulation marginal employment and specifically the regulation provides that marginal employment is not as a matter of this regulation and therefore as a matter of law substantial gainful occupation under the regulation my prob argument in this mr carpenter is that it seems to be quade any time somebody needs national accommodations and there's a determination that they need some degree of accommodation with marginal and claim it and the regulation clearly limits marginal employment to a very specific kind of employment and just if someone is in accommodation like they can't have these are things i know that's not the only accommodation misadventure needs i understand that x the case but if someone a very mild form of accommodation that would not fall within the marginal employment category because it would be something easy to accommodate in the most says they will i don't what is your regulatory interpretation issue because i thought it devolved into any time there's a determination that a company's sins are necessary that person qualifies as marginal employment status no you are i believe if i could paraphrase our argument any time there is evidence of accommodation the board is required to address whether or not those accommodations do or do not constitute a protected work environment and that's what did not occur here by the board there no mention by the board in its decision anywhere as to whether or not the numerous accommodations that are identified in the record by my count there are at least eight significant accommodations for three different service connected disability that have a combined rating of ninety percent there is only one more category available under the rating schedule and that is the category that mr mentor is sent those seeking and that is a total gra under the correct interpretation of this regulation the board was required to ms mentor presented below the question of whether or not the board had or had not provided adequate and adequate statement of reasons or bas why the accommodations set out in the medical evidence were not a protected work environment there was no mention whatsoever in the board's decision what the court decided below was is that they could rely upon the statement related to said cherry work that is in those reports the problem with that is that sedentary work does not appear in the regulation so whether that's been tour can or cannot perform sedentary work is not the measure under the addressing of this question even though they went to great length over several pages to describe the multiple medical reports of different disabilities which imposed one accommodation after another ability in the opinion of the v a exam that that that misadventure would be a able to obtain sedentary employment the record reflects that this mentor has not had employment since two thousand and there is no affirmative evidence in the record that ms mentor could work with the disability that she had was there is merely a medical opinion that speculates that she would be able to secure and obtain sedentary employment protected work environment the board discussed at length the multiple accommodations that were required the failure of the error of the war was not to then go out and say whether that did or did not constitute a protected work environment but coort narrowed the reading of this regulation to exclude any protected work environment other than a family business or  a sheltered workshop those are merely examples under the regulation the court limited it to no they said miss mentors ability to set a terry work would be limited effect of work environments such as a family business or shelter workshop it doesn't i don't read the court's decision as limiting its analysis to those two but rather saying nothing in this record indicates that should be limited to a protective work environment such as those kinds of places no route at all in your argument argument is your honor that that first that the a does not define other than giving the two examples but they protected work environment is we assert that the correct interpretation of four point one six say is that the phrase a protected work environment must address when the evidence raises the question of multiple accommodations for multiple disabilities attorney below but said the board had an obligation under seventy one zero for the to address refusing to provide an adequate statement of reasons or bases to every material issue the material issue in this case well as protected work environment protected work environment was not addressed by the board the better it's court then said that you get a pass board on that because these records didn't raise it but they didn't raise it in the context of sedentary work as being limited to but that's not the test as to whether that secondary work limits the veteran from only working in a protected work environment under the v a s regulations there are three ways to get a extra schedule a total rating you have no earnings as a result of your service connected disability which is in fact the record in this case moving or there is evidence that you may be able to work and there is evidence in this record that they may be able to work but the second criteria is you get them if you work but you can't make more than the poverty level but if you were in a protected work environment there was no limitation with the protected work environment what is absent from this record is any analysis by the ward as to whether or not the accommodations allow her to perform sedentary work outside of a work protected work environment that is in by the court and was not addressed at less all by the war that goes to our second argument under seventy one of four a that the court primitive the board to rely upon total speculation that said terri work would equate to substantial gainful occupation substantial gainful occupation were priors that sedentary work to produce if it's not in a protected work environment more than the poverty level in has been working during the t d i you application process in such a job do you think the veterans court conducted that  i cannot tell whether they did or they didn't but presuming for the moment that the government is correct and they did then that would be incorrect because there is nothing whatsoever at least as illegal purposes yeah absolutely as to whether or not you have to be working and that's the dilemma under this regulation particularly as applied by the board in this case and that goes to the legal question of what is required by a four point one six  veteran who is unable to learn or are supposed to get a job in order to be able to demonstrate that they are entitled to the determination that's an absurdity that is a completely ridiculous interpretation of this regulation that a veteran as in this case will stop working in two thousand and nine whose conditions are documented to have gotten worse in two thousand and twelve she files that application of the extra schedule a total rating in two thousand  e her combined rating increases from sixty to ninety and then she's supposed to go out and get a job in order to show that she if she worked she would have to work in a protected work environment but there is nothing in the regulation none of those words say that as impenetrable in my view as four point one six is to understand what those languages on a fax found basis mean as opposed to making stuff up for i mean i don't know  but what is that language doing doing any work well i guess we have to assume that it's intended to mean something and what we read that language to mean it particularly in the context of this case is that when you have medical records that outline accommodation then you need to address those please the court the protected work environment category is an exception to the rule disallowing a t d i you rating when the veteran is earning income that exceeds the poverty level essentially ms mentor is seeking an advisory opinion about to address when the protected work environment category is a political the board has done all the analysis that four point one six say requires  it to do which is to determine whether the veteran in light of her service connected disability can pursue and maintain substantially gainful employment and it has done that it has looked at her work history her educational background and also her service connected disability and determined that she is still capable of securing and maintaining substantially gainful employment the four point one six eight does not require the board to go on to determine whether there are any employment that she she might seek or might obtain won't fit within the protect it work environment category it's only a when the veterans are earning income so so i'm i guess i want to focus on that for a minute i did not first of all of that seems to me to be a legal interpretation so that if the veteran's court adopted it we would be we would have jurisdiction to review that interpretation as opposed to the way that at least i read the veterans court opinion which is i don't think makes any reference to this notion that that phrase about protected environment applies only to work that the applicant is in fact doing as opposed to could do so i took the veterans court opinion to say we just think that there isn't enough evidence here to show that there is gainful employment including employment outside a protected environment to to qualify her for you so are i guess i'm a little baffled by the way that you're injecting what is a real legal issue here that i don't think the veterans court actually were resolved determining that the veteran can pursue and maintain substantially gainful employment and concluded that the record there is nothing about this case that raises this issue or this category regarding protected work environment and that would be whether the record reasonably raises any issue with a question of fact over which this court does not have jurisdiction to reach the conclusion regarding substantially gainful employment we are necessarily concluding that miss mentor is not limited to marginal employment can i ask you a kind of a general practice question that probably goes more to mr carpenter's second argument than to the first how does the board was and the be a generally go about making a market availability determination that is what jobs are available is it always the evidence submitted i know the doctor or some examiner that says the claimant can do the following things and i'm kind of generally aware though of course i don't have documentation of statistical or otherwise that you know jobs are available for somebody who can do that sort of thing or is it his or anything more respect to determining whether the types of jobs that the veteran can do here for example it's just categorical it's she can perform sedentary work and this is based on her educational background and her work history she has a history of working as a counselor so perhaps she could engage in that type of employment but it doesn't have to go as far as to say whether these jobs are actually available there is nothing in the deed to a statute that requires the v a to consult an industrial survey or of locational expert all that the v a must conclude is that she is capable of pursuing substantially gainful employment out there for her to perform and that based upon their month of full examinations for her multiple disabilities if they meet the accommodation set out then she would be able to get that work but she is not entitled to the benefit of an analysis under protected work environment because she doesn't have a job but they're denying her because she can get a job gunner's there is nothing in the language of four point one six say that says that protected work environment is an exception it is a criteria it is one of the available options for eligibility and if you meet that and here is the real problem with the government's position under their own regulation if she gets a job as they say she can doing sedentary work and she makes less than the poverty level she is still entitle to the benefit and therein lies the problem with the evidence that the b a well i suppose there is no evidence that even if she could find the job that these collect to be examiners imagine that she could meet the threshold of poverty to do but if she did which would she not be working in a protected work environment where the amount of her income would not be relevant to her in time or to an extra schedule or total rate that's the way that is the correct interpretation and that is not the interpretation that was relied upon by the veterans court the veterans court selectively parsed out the regulation relying upon