This document summarizes recent court cases that impact veterans and County Veterans Service Officers. It discusses the Ray case which provided guidance on what constitutes "substantially gainful employment" for determining TDIU benefits. It also summarizes the Stewart case which clarified how to interpret medical conditions under 38 C.F.R. 3.317 for Gulf War illness claims. Additionally, it covers the Procopio case which found that veterans who served in the territorial seas of Vietnam should receive presumptive exposure to Agent Orange. The document provides details on these and other cases and offers guidance for filing related claims.

1. RECENT COURT CASES
THAT IMPACT
VETERANS & CVSOs
National Association of County Veterans Service Officers
June 2019 – Cleveland, OH
Presenter:
Katrina J. Eagle,
Veterans Law Attorney

2. TOPICS:
TDIU: what constitutes “substantial
gainful employment”? (Ray)
MUCMI and PGW Veterans: interpreting
38 C.F.R.§ 3.317(a)(2)(ii) (Stewart)
Blue Water Navy: definition of Vietnam
for purposes of AO exposure (Procopio)
Medical conditions not presumed
related to herbicide exposure (Polovick)
COURT CASES

3.  38 C.F.R.§4.16: Total disability ratings
for compensation based on
unemployability of the individual
“Total disability ratings for compensation
may be assigned, where the schedular
rating is less than total, when the
disabled person is, in the judgment of the
rating agency, UNABLE TO SECURE OR
FOLLOW A SUBSTANTIALLY GAINFUL
OCCUPATION as a result of service-
connected disabilities.”
TDIU

4.  Unemployability – 38 C.F.R.§4.16(a)
 Eligibility requirements (Schedular):
• One disability rated at least 60% OR
• Multiple disabilities, with one
disability rated at least 40%, and a
combined rating of at least 70%.
• And, “Marginal employment
SHALL NOT be considered
substantially gainful employment.”
TDIU

5. Extraschedular TDIU
38 C.F.R.§4.16(b): “… all veterans
who are unable to secure and follow
a substantially gainful occupation
by reason of service-connected
disabilities SHALL be rated totally
disabled.” (emphasis added).

6. 38 C.F.R. § 4.16(b):
Veterans who are unemployable due
to SC conditions, but don’t meet the
% requirements, should be referred
to Compensation Service Director for
extraschedular TDIU consideration.
What if the Director denies
extraschedular TDIU?
TDIU

7.  Unemployability – case law
 VA must consider the claimant’s
work history, education, and
training, and cannot reject a claim
“without producing evidence … that
the veteran can perform work that
would produce sufficient income to
be other than marginal.” Beaty v.
Brown, 6 Vet.App. 532, 537 (1994).
TDIU

8. TDIU & “Substantially Gainful Employment”
Ray v. Wilkie, CAVC no. 17-781 (Mar. 14, 2019)
VA argued SGE is undefined on purpose;
CAVC rejected nebulous concept without more
VA has not defined “SGE,” so the CAVC used
Social Security regulation as guidance.
The definition has two components:
economic AND non-economic.

9. TDIU & SGE
Ray, continued:
Economic = occupation earning more
than marginal income (outside a
protected environment) as the U.S.
Dept. of Commerce defines as poverty
threshold for one person.

10. TDIU & SGE
Ray, continued:
Non-economic factors
the veteran’s history, education, skill, and
training;
the veteran’s physical ability (exertional and
nonexertional) to perform work (sedentary,
light, medium, heavy, or very heavy); and
the veteran’s mental ability to perform regular
work.

11. TDIU & SGE
Ray, continued:
Physical factors may include but are
not limited to: limitations concerning
lifting, bending, sitting, standing,
walking, climbing, grasping, typing,
reaching, auditory and visual.

12. TDIU & SGE
Ray, continued:
Mental factors may include but are
not limited to: limitations concerning
memory, concentration, ability to
adapt to change, handle workplace
stress, get along with coworkers, and
demonstrate reliability and
productivity.

13.  When Working TDIU Claims,
Remember:
 TDIU determinations are made by a
VA adjudicator, not a medical
examiner
 However, the rater should render an
opinion based on all of the lay, medical
and vocational evidence of record
 Use the factors listed in Ray (p17) when
explaining why the Veteran does not
have the physical or mental abilities for
SGE
TDIU -- Recap

14. • Doctors are qualified to define physical or
mental limitations caused by a condition, but
have no expertise in translating this info into
the degree of impact on the ability to work,
particularly when dealing with combination of
physical and mental limitations.
• Claims for TDIU can benefit from a
professional opinion from a vocational expert
who can determine whether the veteran is
qualified in education and experience for the
type of job that he is medically fit to perform
(e.g. “sedentary employment”)
• And, or consider VA’s Voc Rehab Program
TDIU -- Recap

15. Stewart v. Wilkie, 30 Vet. App. 383 (Dec.
20, 2018)
Stewart served in Iraq 2/2004 to 1/2005,
suffered from asthma and obstructive &
restrictive pulmonary disease with no known
etiology
CAVC held that the Board had misapplied
38 CFR§3.317(a)(2)(ii) re MUCMI (Medically
Unexplained Chronic Multisystem Illness)
COURT CASES – Stewart

16. 38 CFR§3.317(a)(2)(ii) consists of 2
sentences.
 The first sentence sets forth
characteristics of a MUCMI
 The second sentence sets forth
characteristics that prevent an illness
from being a MUCMI.
COURT CASES – Stewart

17.  38 CFR§3.317(a)(2)(ii)’s first sentence:
“MUCMI means a diagnosed illness
without conclusive pathophysiology
OR etiology, that is characterized by
overlapping symptoms and signs and
has features such as fatigue, pain,
disability out of proportion to physical
findings, and inconsistent
demonstration of laboratory
abnormalities.”
COURT CASES – Stewart

18.  “Etiology” defined: “the science or
doctrine of causation”; also “all of
the factors that contribute to the
occurrence of a disease or abnormal
condition.”
 “Pathophysiology” defined: “the
physiology of abnormal states;
specifically, the functional changes
that accompany a particular
syndrome or disease.”
COURT CASES – Stewart

19.  38 CFR § 3.317(a)(2)(ii)’s second sentence:
“Chronic multisystem illnesses of partially
understood etiology AND pathophysiology,
such as diabetes and multiple sclerosis, will
not be considered medically unexplained.”
 The Board erred because it found that the
Veteran’s asthma had a partially understood
etiology without determining whether it also
had a partially understood pathophysiology;
i.e., it did not address BOTH parts of second
sentence.
COURT CASES – Stewart

20. Stewart explained MUCMI this way:
Under 38 CFR§3.317(a)(2)(ii), “an
illness is a MUCMI where either the
etiology or pathophysiology of the
illness is inconclusive. Conversely, a
multisystem illness is not a MUCMI were
both the etiology and the
pathophysiology of the illness are
partially understood.”
COURT CASES – Stewart

21.  Understand VA’s adjudication
requirements in TL 10-03.
 Understand relevant CFR(s).
 Claim must identify symptom(s).
 Claim must describe exposure event(s).
 Submit supporting medical nexus opinion.
 Submit supporting medical treatise
evidence.
 Rating: consider alternative DCs,
extraschedular, effect on employment.
COURT CASES – MUCMI Recap

22. Procopio v Wilkie (CAFC (1/29/2019))
“Congress has spoken directly to the question
of whether those who served in the 12 nautical
mile territorial sea of the ‘Republic of Vietnam’
are entitled to§1116’s presumption if they meet
the section’s other requirements. They are.
Because the intent of Congress is clear, that is
the end of the matter.”
(Procopio at page 19)
COURT CASES – Procopio

23. Where does the “12 nautical miles” begin?
Various interpretations include:
 12 nautical miles from shore
 12 nautical miles from a “baseline”
Vietnam declared in 1977 (this is what HR299
calls for)
 12 nautical miles from baseline plus
additional 12 nautical miles (contiguous
zone)
Said differently, WORDS MATTER!!
COURT CASES – Procopio

24. COURT CASES – Procopio

25. Govt’s interpretation of 12 nautical miles:
 VA Undersecretary of Benefits: “Blue Water Navy
Veterans who served within 12 miles of shore are
presumed to have been exposed to Agent Orange.”
 VA Deputy General Counsel: “if the record contains
a deck log establishing that the ship went within 12
mile of mainland … would support the conclusion that
the veteran entered the territorial sea of Vietnam.”
 US Solicitor General: “The (Procopio) Court held
that the Agent Orange Act’s reference to “the
Republic of Vietnam,” includes “both its landmass and
it’s territorial sea” extending 12 miles off the shore.”
COURT CASES – Procopio

26. Why the controversy?
 UNCLOS*: “the normal baseline for measuring the
breadth of the territorial sea is the low-water line along
the coast” (low tide) Article 5
“In localities where the coastline is deeply indented…
straight baselines may be employed” Article 7(1)
 Vietnam chose to use straight baselines, BUT…
 “The drawing of straight baselines must not depart to
any appreciable extent from the general direction of the
coast and the sea areas lying within the lines must be
sufficiently closely linked to the land” Article 7(3)
* United Nations Convention on the Law of the Sea cited in Procopio decision
COURT CASES – Procopio

27. Baseline is 80 nm from shore at furthest point!
COURT CASES – Procopio

28. This is likely why the US refused to recognize
Vietnam’s definition of its territorial sea
COURT CASES – Procopio

29. Another potential VA argument for only
12 nautical miles from shore
 Although Mr. Procopio’s ship, the USS Intrepid, was
more than 12nm from shore, the Federal Circuit only
addressed the fact that BVA had earlier accepted that the
ship was in “territorial seas” (because when the Board
ruled, it didn’t really care where the ship was located
relative to shore, it only cared that Mr. Procopio wasn’t
“boots on the ground” and denied on that basis)
 As such, any correlation between the location of Mr.
Procopio’s ship and the definition of “territorial seas” was
not considered by the CAVC or the Federal Circuit.
 BVA decisions are not precedential.
COURT CASES – Procopio

30. Bottom line to share with Blue Water Vets
 It’s unlikely that VA is going to grant any claims beyond
bays, harbors or 12 nautical miles from shore without
additional litigation (i.e., not any time soon).
 It’s likely that VA will dig its heels in and fight to limit BWN
benefits as much as it can.
 The Procopio decision did not address effective dates. It’s
still unclear how VA will handle that.
 It’s likely that VA will drag this out for a very long time
unless Congress passes BWN legislation.
 BWN claims and appeals have merit, some may take longer
to win than others. Make sure Veterans know the facts (not
fiction) regarding this change in law. Manage expectations!
COURT CASES – Procopio Recap

31.  Presumption of In-Service Exposure:
 If Veteran exposed AND suffers a
medical condition presumed by
VA to be related to exposure,
then presumed service
connected unless VA can rebut.
 38 C.F.R. § 3.307
 38 C.F.R. § 3.309

32.  Presumption of Exposure to
Herbicides:
 What about Veterans who do not
qualify for presumption of exposure?
 Present evidence of actual, direct
exposure
 38 C.F.R. § 3.307(a)(6)(i) defines
“herbicide agent” as: 2,4-D; 2,4,5-T
and its contaminant TCDD, cacodylic
acid; and picloram

33. If all criteria for Presumptive service-connection
cannot be met, then pursue DIRECT S/C claim
 Combee v. Brown, 34 F.3d 1039 (FC 1994):
 Held: “That a medical condition is not
presumptively related to herbicide exposure
does not preclude a veteran from establishing
direct service connection with proof of
actual or direct causation” and that
presumptive service connection “does not
foreclose proof of direct S-C.”

34. If all criteria for Presumptive service-connection cannot
be met, then pursue DIRECT S/C claim
 Polovick v. Shinseki, 23 Vet. App. 48 (‘09)
 Held: a condition’s absence from the
presumptive list does not preclude a
Veteran from establishing direct service
connection by showing that it is as likely
as not that the condition is due to in-service
herbicide exposure.
 Note to VSOs: STOP telling Veterans not to
file when condition is not on a VA
presumptive list!

35. Resources:
www.uscourts.cavc.gov
www.veteranslawlibrary.com
www.lawstack.com
For Veterans Benefits Manual:
https://store.lexisnexis.com
COURT CASES

36. Questions?
Feel free to contact me:
Katrina J. Eagle
T: 858-549-1561
katrina@eagleveteranslaw.com
COURT CASES