i can assure you i'm going nowhere near  board relied exclusively upon evidence from a v a examiner about mr wade's ability to perform sedentary employer are you are you disagreeing with him or is weighing of the opinion of that a no your honor because an opinion about sedentary employment goes to the legal status the standard for entitle ment to an extra schedule or tolerating the term or phrase sedentary employment or the ability to perform said very employment does not exist in four point one six the legally or they can't do it because it doesn't exist there you're saying that use a sedentary employment as a factor occluded by regulation unless the sedentary employment is tied to the earning ability under sedentary employment for one six is a regulation that is structured by the v that deals with not the inability to work in totality but the disability that arises to prevent it understand you said at the broad generic sense that would be a correct statement your honor but in the context of four one six four one six and a specifically described marginal employment which then permits the veteran to earn up to the poverty level for a single person a mere statement that any veteran is capable of sedentary employment is no more valuable than the statement that he is capable of employment it is capable of more than marginal employment that is required that the board made the the finding the legal finding here that he is capable of not support a finding that due to the appellant service connected disability he has an inability to obtain and retaining substantially in poll employment consistent with his education and history that is part of that is a quote from the or it's in i'm looking at appendix page three in the more the court's opinion you i'm sure you're aware of that's a correct legal center right whether or not he can obtain and retain employment with his education and history that's correct the board made a finding that he could yes based upon evidence of the ability to perform sedentary employment and are they are establishing an equivalence between the ability to perform so sedentary employment with the ability to perform more than marginal employment and those two are not equivalent any more than the ability to work and earn less than marginal employment less than the poverty level equals the inability well i get what you're saying i mean if if what the net by sedentary employment was he can show up and work for minimum wage for two hours a week and because that would limit his social their actions that when it meet the meaningful gainful employment center that's correct but that doesn't seem to be the type of evidence that the examiners talking about i think they're talking more generally about c can sustain a work in a desk job or position or has a social interactions are minimized what are they saying when they use the word sustained they may not be specifically using the word you know gainful employment above marginal on the like but they're going through all this evidence and they're looking at it and they're saying yes yes pe can work in a certain job isn't that what they're alternately saying and you're asking us to read the evidence differently no i'm not asking you to read the evidence differently i'm asking you to examine the evidence to determine whether there is any evidence that connects with the legal standard in for once that the mere statement by the b h examiner that he is capable of performing sedentary work is not equivalent to the ability to earn more than marginal income to get a sedentary job does not mean that that said every job will produce more than marginal income and there is no evidence in the record there is revealing live half work that was more than marginal i'm sorry he previously visited yes he previously did and the question here is the date that he made this application for what after he left the twenty years in the steel industry did his disability from that point limit his ability to even in a sedentary environment earn more than marginal earnings and there is nothing in the record what the v a is doing is using the backdoor to make it v a examiner to offer an opinion about a concept that doesn't exist in the regulation of said terry employment and justify that the earlier argument your argument seems that the  introduce evidence in some fashion of what sort of work specific work at what sort of specific the veteran can get they have to establish a reasonable basis in the record to conclude that if he found sedentary employment aid he could maintain it and be he would earn more than marginal earnings and why not the simply make the global statement that he is capable being capable and that's the only conclusion this court indeed said that the role of the medical examiner is to assess the symptoms but that's a factual question i mean you're not making some kind of argument that they have to and every one of these t d i you cases bring in a vocational expert are you know i know that argument i don't know if you pressed it but it certainly didn't press before but i don't think it's ever been accepted by this court well what i'm suggesting is your honor that with out vocational evidence that there isn't evidence to meet the legal standard of the ability to earn more than marginal income supposing that that mishal v a examiner that said to him you know what kind of work commute do that said here and and ask him how much does that this pay more than minimum wage would that have satisfied you know or be because particularly when you're dealing with a psychiatric disability we're talking but that factual basis with have to be based upon some actual performance by the vector that the veteran has shown why on this road while if it's a fact finding why can't determine that he is psychologically capable of doing that i've asked him the right questions and that's my determination why not well this court said indeed that that's not the rule of the medical examiner that the role of the medical examiner is not to supplant the responsibility of the v a rating specialist that that answer has to be an answer made by the rating specialist based upon the evidence and that what the to me the medical examiner does according to this court's decision indeed is to assess the symptoms describe what those symptoms do to him payer or not to impair not to simply inquire person but to look at the actual symptoms in the record of the severity frequency and duration of those symptoms and how they impact the ability to earn more than marginal income that somebody have to make a determination and that he will be able to not stain employment over a period of that's what the regular that of occasional or a medical doctor i believe it's locational determination i believe consistent  that's not what i argued in my brief i was asking answering the judge's question if you don't think it a expert psychiatry strain and p t s d is qualified to upon an on whether an individual's p t would prevent them from gaining and sustaining meaningful employment no your honor i do not believe that a psychiatrist or a psychologist would be able to make that up and that is not their training that is would not affect the ability of a veteran with a psychiatric disability that qualifies for that unemployment believe because they are only able to secure and follow substantial i'm not aware and i don't i don't know what occupational therapists do and it may be that they have additional training but it seems to me you're asking for for some to a type of evidence that want to be is never insisted on nor is this court ever and that i'm not sure there are and they're qualified to give well with respect your honor i don't think that the vocational expert that we're talking about is an occupational therapist a vocational expert is a expert in what it takes to perform the requirements of the job what it requires in order to maintain substantial honestly who is that person what are their qualifications what is their background what kind of degrees do they have but they have degrees in vocational training and vocational evaluation to evalu security hearing to give the soul security administrative law judge the expertise about the ability of an individual to perform the task all of are required to maintain employer they used in hearing they are not used by the v a they are have been used by me and other practitioners for at least a decade to those people in the social security context yes  the diagnosis they are looking at the symptomatology that is presented in the medical records what it is about sleep impairment what it is about nightmares what it is about irritability temper issues  the ability to become easily distracted those are the kinds of things that they assess in terms of the requirement to do a forty hour a week job in order to sustain that emp it's going to say there needs to be more than that if they were to meet twelve thousand dollars a year which is approximately the poverty threshold for an individual twenty seventeen then yes that would be something obviously for them to consider is whether or not there and how the marginal claimant is not the legal standard automatically it equal more than marginal employment you could have said it employed but i think you would agree that it's completely marginal yes your honor absolutely however the the standard applied by the by the a doesn't actually use occupational per people to determine whether or not someone is able to engage in a certain occupation they go he says and that would be a sufficiency of the evidence argument that he would meet that we need to be made for the analysis or any sort of study as to whether or not whether or not there is what kind of jobs actually between the market and so and us or any other questions from the court for those reasons is what our process i mean if you say that and he comes back request five years from now and to establish that sort of evidence that would obviously probative for the board to consider of course the board cannot consider the effect of other disabilities i believe mr ray does have some disabilities which are not service connected of which he does receive social security to be clear your honor i do not believe a fair reading of the regulation uses marginal employment as a trigger marginal employment is a specific definition that is provided by the v a to give guidance to both trims and their representatives as well as their own adjudicators as to how you make this call how you make a determination as to whether or not they're entitled to this benefit what about what about it mr governor not in the real or all that represent a lot of it do you have certain stances where somebody is shunted off saying you can you can obtain more than marginal employment and you come back at a later point and say look this guy can't hold a job yeah you can get one but you keep getting fired yes you're but but then they submit that these individuals do examination by v a examiners and they make this this hypothetical determination that has no factual basis what i'm saying  to the blue brief at age twelve where we cite the for seka decision from the veterans court in which the veterans court determined that the board may not recall reject they claim without producing evidence as distinguished from mere conjecture that the appellant can perform work sufficient to produce income other than marginal as a consequence what we end up with here is an expert a v a examiner who offers an opinion that the veteran is capable that simply in the guise of a medical opinion is conjecture there is nothing in this there was nothing in the v a examination that provided any factual basis for that conclusion now both of the judges have given hypotheticals as what an examiner might inquire but those inquiries were not made in this case they are not part of the record and then the government's reference to the fact that he worked previously for twenty or thirty years with the steel industry is simply not relevant his ability to work previously has nothing to do with this evaluation it is the evaluation going forward the v a says that they would disagree that psychiatrists are capable of making this decision day is instructing their psychiatry is not to make this determination they are instructing this psychiatrist to do what this court said in d c and that is to examine the symptoms tell the v a exist or raters what the limitations are that are observable or projectable from the veteran's psychiatric point of view based upon the severity