Ortiz-Valles: Marginal Employment and IU

Ortiz-Valles v. McDonald, Opinion Number 14-2540, decided May 20, 2016 involves the consideration of marginal employment in reference to entitlement to individual unemployability (IU).

The veteran sought IU and at least one VA examiner discussed his back pain and while placing severe restrictions on the veteran stated he was able to work from a sitting position, and is thus able to “obtain and secure a financial rewarding job, at least in a part-time fashion.”  The RO and Board found the veteran wasn’t entitled to IU.

At the Court the veteran argued the Board failed to address whether he was only capable of marginal employment and specifically that the Board failed to explain how his capacity for only part-time sedentary employment with work restrictions would not preclude him from substantial gainful employment.

The Secretary argued a consideration of marginal employment only came into play if a veteran was employed—it allows the VA to determine if the employment results in below the poverty level pay and thus is marginal.

The Court found “the only logical reading of the [IU] regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal—i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of Census, as the poverty threshold for one person.”  Id. at *6-7.  “There is no language in the regulation that limits VA’s obligation to evaluate evidence suggesting that a veteran is capable of securing or following only marginal employment to cases of employed veterans.”  Id. at *7.

The Court remanded with instructions to the Board to state whether the veteran “would be able to obtain or maintain a substantially gainful occupation—or, put another way, whether [the veteran] is capable of more than marginal employment.”  Id. at *8.  The Court explicitly did not define the term “substantially gainful occupation” explaining the VA should first be allowed to take a position on the matter.

This case demonstrates that entitlement to IU is always a battle and that the exact definition of substantial gainful employment is still fluid.

Decided by Chief Judge Hagel and Judges Schoelen and Greenberg