the veteran's disability are such that they do not preclude him from continued continuing in his current profession or job or job at the other end of the spectrum the medical examiner could conclude that the veterans disabilit severe that he can't work any job and either of those two situations the opinion of the medical expert by itself could provide sufficient evidence for the v a to adjudicate the veteran's claim without the need for a vocational surveyor or expert this case however involves the third situation between those two extremes and it's a situation i like to call the alternative shop job situation and that is where the medical expert concludes that the veteran service connected disability preclude him from working in his current or most recent job but he may be qualified medically speaking to work in some alternative job and in that particular situation which is where we find ourselves here the opinion of the medical expert by itself is not enough it's not sufficient evidence for the v a to adjudicate the veterans t d i you claim and the reason is a medical professional a doctor let's say is simply not qualified does not have the a consideration of the veterans education and vocational experiences job experience and whether those that education experience actually qualifies him for one of these alternative jobs whether the jobs the that are being proposed the alternative jobs actually exist in sufficient number in the national local economy and this was an important one whether the better if you were engaged in those in that alternative job would actually be able to make a living wage and as just one example to answer your question on that third issue the v a s regulations specifically require on t d i you that the job that's being in vision for the better and that's a reason for denying is t d i you claim provide a honor i don't know whether the words arbitrary and capricious were used to be honest with you i know the issue was raised before the c a v see that the duty to assist should require the v a to provide this type of evidence and in this kind of a case in this in this category of case now it's true that the opinion of the c of e c to overgeneralize what the argument was we are not to be clear we're not suggesting that every single t d i you claim requires this type of evidence it's a particular type of claim which i've again honor the statute has several parts to it but i think the most important part is the first paragraph that says that the secretary shall make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim its claim for a benefit yes it's true that there are subsequent provisions in that statute that spell out at a minimum the v a must assist in gathering records and must provide a medical examination in certain cases and it's true that there is no mention of vocational examinations but that doesn't change the fact that subsection a of fifty one of three doesn't is not limited to any particular type of evidence it doesn't say medical evidence the sole criterion in that portion of the statute is whether has not yet squarely made its way to this court i think this would be a case of first impression but the obligation our obligation is to interpret what the statute says and it does not limit the statute on its face is not limited to medical evidence although i will concede that is the most common issue that comes before this court is the failure of the alleged failure to provide medical evidence but it isn't the most you know whether this statute is limited to medical evidence but whether it mandates a certain type of evidence well as i said i don't think it mandates a certain kind of evidence the sole criteria in section fifty one of three subsection essay is whether the evidence is next serry to substantiate a claim a benefit here the better and it has put forth the claims for t v i do and as i've explained part of the v a s own rules and regulations require the agency to look at things like the veterans education the better an vocational experience and again there is that clear provision in for ford out sixteen a that that there be some consideration given to whether the alternative job is going to provide a living wage above the some particular type of evidence for instance a vocational expert over industrial survey i think that's best left with the v a but i think what needs to be corrected here is the position that the secretary has taken in this case and in previous cases that there is cat duty to assist beyond providing a medical examination we think that's incorrect it's not discretionary will it so little will the secretary of state be here he has a ago where the issue came up before so it's something that the v a is aware of that veterans on occasion seek out this type of evidence and the position that the secretary has taken and continues to take is that this evidence is essential discretionary and that the v a can just decide in its own discretion as to whether or not to order up a vocational survey and what what we are arguing is that while an opinion from us telling the secretary to be nice it's not discretionary under the duty to assist discretion if the evidence is deemed necessary which we would submit it is under the under the v a s own rules and regulations there is no discretion if the v a if the veteran needs evidence on whether his education a vocational experience qualifies him for a certain type of job what are the jobs out in the economy and will provide me a living wage it's the duty of the secretary to provide that evidence be it through a vocational expert or otherwise but it's left in the discretion of the secretary when that circumstances is i would concede that your honor yes i mean there are there certainly have to be some discretion at the secretary but they cannot as they've done seemingly in previous cases categorically say that there is no duty provide vocational evidence because we think there is a duty to provide book ational evidence when and where there may be some discretion there but it can't be categorical right would you like to reserve your  made please the court i don't disagree with your honor's reading of five hundred three a in that it doesn't leave to the secretary of the discretion to provide additional assistance above and beyond in cases when it feels it's necessary but i also  agree with your honor's view that where congress sets forth the specific ways in which the duty to a situation be interpreted by the secretary congress saw fit to only provide those and did not specify or require the secretary to go above and they provide a vocational expert what happens and you'll see this in some of the cases is where there is a mental disability being considered as part of the initial v a rating whether as a mental disability they obtain a social and industrial survey which is in some instances a vocational survey which is i believe what mr smith is seeking as the alternative to vocational expert the reason they obtained those in the ratings is because the the level social and industrial param it goes into the evaluation of a mental disability and the percentage compensation to be given so those are the only circumstances where and when you read the veterans court opinions there is a social survey or international survey there there are no vocational experts who have been brought in to testify on the v a side if you look at the cases mr smith sites where the secretary has obtained one of the surveys all but one of the involves psychiatric disorders or p t s d so that that's the circumstance that's case in addition to her would be revenged its decisions for the arbitrary without the assistance of appropriate experts well i think it's important to step back  and look at what mr smith counsel said where the necessary factors to be considered one of the factors he set forth to be considered in a t d i you case is whether there are available jobs in the national economy for the better and two to actually to to procure however what he's citing is standard from the social security regulations that factor that question is not actually required to be asked and is in fact not asked assessing whether the veteran is sable to continue to do the kind of works a bit different has been doing but in concluding that well all right you can't do that kind of work anymore you're not able to do any heavy lifting but  some guidance some testimony for that determination but you know let's take for instance that they're able to sit for eight hours to do a desk job is based upon the physical and mental disability that's affecting the veterans and it's a key premise of the v rating system that that medical examiners are competent to testify about the effects of the disability on the veterans ability to engage in normal activities including the physical and mental activities required of a certain of any kind of occupation sort of possibility that the veteran could physically and mentally perform the activities required my employment is the correct test mr smith's brief to any employee any employment correct whether there is available employment in the national economy or not congress in the social security regulations set forth that disability the term disability would be defined in part by whether or not there were suitable jobs in sufficient numbers in the national economy prior to nine hundred seventy eight  in social security cases had to consult with locational experts since one nine hundred seventy eight they probably get it vocation medical vocational guidelines so they no longer need to do that they go to the guidelines to determine whether there are sufficient numbers of jobs in the national economy when that's one that doesn't answer the question they're permitted now by so skewed regulation to consult with a vocational expert but even there they're not required to do so anymore so i would submit that that's a question that congress set forth in the social security case here the congress were left to the discretion of the secretary to set forth and implement the compensation the compensation concept to disabled veterans and so therefore they set forth the initial the rating system and set forth this t d i you would fill the gap where someone who isn't initially determined to be one hundred percent disabled physically or mentally by their disability nonetheless gets one hundred percent disability because they simply are eligibility for t b i you is quoted in one of the first footnotes in the secretary's brief where it sets where we set forth what percentage is sixty percent forty sixty or seventy depending on gets with the disability  veteran is able to follow it substantially gainful employment the secretary of the added years after that was first implemented that so essentially game full employment is not marginal employment and marginal employment exists one of veterans earned annual income does not exceed an amount of stablish by the department of commerce as the poverty threshold so that's that's the additional language of four point one six a which i don't believe that cited in the secretary's brief  fact is that the standard that's followed by the v a in these cases makes clear that there's a difference between theoretical employability and an actual employee ability so we would submit that what a physician is capable of doing in an examination render an opinion about theoretical capability in that it is theoretically employment rather that this veteran theoretically should be able to sit behind a desk or theoretically should be able to work in jobs that require him to carry less than thirty pounds that's a very typical type of opinion that the doctor mere theoretical ability to engage in substantial gainful employment is not sufficient basis basis to deny benefits the test is whether a particular job is realistically within the physical and mental capabilities of the claimant that's the  one vet app three fifty six which is cited on page twenty three of our blue brief and the other side of the answer your question is the v a s regulations thirty eight c f r four point one six b specifically require evidence or at least consideration of the veterans education and vocational attainment and so if the if the only question to be answered was theoretical employment in other words th whether or not the physical and mental capabilities of the of the veteran are sufficient that he could theoretically work a job then why would the regulation require consideration of his education and his employment history we would submit that these are extra requirements that need to be looked at and they are beyond the expertise of a physician but the regulations don't say general job m very heavily from the security cases they tend to follow those cases fairly well and the reason is that the social security is the agency of the government that really has the most expertise on this particular question of on employee ability that's what the social security administration does day in and day out and so it's not a surprise that the v a over the course of you know fifteen to twenty years has followed much of the case law in the sr curity administration the definition of employee of substantial employee ability of substantial gainful employment is employment that is that which is ordinarily followed by the non disabled to earn their livelihood with earnings comics the particular occupation in the community where the veteran resides that's baby versus brown also cited our pinion once a regulation has been set forth once the rules are set forth in the regulations and once a body of law has been developed as a matter of due process there is no discretion in arbitrarily deciding when evidence is going to be brought in on certain issues and when it's not the event evidence is necessary it must be provided that occur if they fail to follow their own if they fail to apply the statute which is the duty to assist statute in support of their own regulations that is within the jurisdiction yes you are subject to any further questions just think i'm done thank you very