Withers: TDIU and Sedentary Work

Withers v. Wilkie, Case Number 16-1543, decided August 10, 2018 address Sedenary Work in the context of a TDIU claim.

This case involved a Vietnam combat veteran who was service connected for gunshot wound residuals in his arm and leg, lower back problems and PTSD.  He had operated a financial services and investment firm for some time, but began to miss works due to physical complications and PTSD related problems.  He ultimately stopped his employment shortly thereafter. 

His VA examinations revealed PTSD complaints of depression and fatigue, as well as difficulty interacting with people and handling stress. With respect to his back disability, Mr. Withers reported that he could walk slowly for only 10 to 15 minutes and avoided heavy lifting; the examiner found objective evidence of pain and limitation of motion of the lumbosacral spine but no additional loss of motion, fatigue, incoordination, or lack of endurance upon repetitive use. The veteran endorsed similar limitations with respect to his right leg disabilities, and that same examiner found evidence of residual pain and some limitation of motion in the right knee, as well as limited right ankle motion.  Id. at *2-3.  Meanwhile, the Social Security Administration determined the veteran had “the residual functional capacity to perform sedentary work as defined in 20 [C.F.R. §] 404.1567(a) except that the claimant is unable to perform competitive work on a full-time basis.”  Id. at *3.

A VA examiner noted significant limitations and “concluded that the veteran was ‘unable to do any kind of strenuous or sustained work’ but should ‘be able to do light work or sedentary work.’  He adhered to that conclusion the following year but advised that he couldn't offer an opinion on the effects of PTSD.”  Id.

The Board denied TDIU reasoning no examiner found the veteran’s service connected disabilities precluded sedentary employment and his college education and history of management suggested he had the training to perform sedentary employment.  Id. at *4.

The Court noted the use of the term sedentary work is not found in any relevant VA statute or regulation, but is frequently arises in the context of TDIU claims.  It then noted:

VA has never forwarded, nor has this Court developed through precedential decisions, an interpretation of § 4.16 that accords dispositive significance to a veteran's ability to perform sedentary work. This sets up the central tension in this case: the parties urge the Court to define a term that has no independent legal significance. For this reason, to define the phrase would put the cart before the proverbial horse. The threshold question in this context is not what "sedentary employment" means, but what connection sedentary employment bears to the requirements of § 4.16.

Id. at *6.

The Secretary sought to have the term sedentary work defined by its ordinary usage, but the Court refused to go along and instead found:

We cannot settle the meaning of "sedentary work" as used by different VA examiners in this case or provide guidance in future cases by resort to the ordinary-meaning canon. What we can say, however, is that, where a veteran's ability to perform sedentary work is a basis for the Board's decision, the meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning—to the extent that it is not apparent from the Board's overall discussion of the opinion—as well as how the concept of sedentary work factors into the veteran's overall disability picture and vocational history, and the veteran's ability to secure or follow a substantially gainful occupation.

This approach accords with how the Board generally must assess evidence and adjudicate

the issue of TDIU.  We have repeatedly reiterated that a medical opinion must be read and interpreted as a whole, e.g., Gill v. Shinseki, 26 Vet.App. 386, 391 (2013), so when an examiner uses the term sedentary work, the surrounding medical opinion may give the term its content, based on the specific functional limitations, if any, found by the examiner. When, as here, an examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that the veteran is incapable of performing.

Id. at *8-9.

The Court then explained

Likewise, although §4.16 does not make the concept of sedentary work an explicit TDIU factor, if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case. This includes, where necessary, an explanation of how a finding that a veteran is capable of sedentary employment squares with the veteran's educational and occupational history. See Pederson, 27 Vet.App. at 287. In other words, the meaning of "sedentary work" is arrived at inductively with the facts cited providing the context for understanding how the observation applies in a given situation. This allows for

individualized assessment; absent such factual context however, the phrase can be regarded as conclusory and meaningless on its own.

Id. * 9.

The Court also determined:

VA examiners opined that Mr. Withers was capable of sedentary work. However, they also remarked that service connected physical disabilities interfered to some extent with his ability to stand, walk, lift, and carry.  It is not clear from the current decision whether the Board arrived at its own conclusion regarding the veteran's ability to perform sedentary work or simply adopted the examiners' conclusions. As noted above, the Board is not obliged to consider the standards used by SSA or the DOT, but it must sufficiently explain how it interpreted the examiners' use of the term and how the concept of sedentary work figures into a veteran's overall disability picture and vocational history.

Further compromising the Board's discussion of the sedentary employment issue is the

failure to mention Mr. Withers's psychiatric disability.

Id. at *10-11.

The veteran sought for a judicial determination defining sedentary work the same as a Department of Labor publication.  The Court refused, reasoning that sedentary work is absent from Section 4.16 and thus not necessarily a part of a proper TDIU analysis.  Id. at *10.

The Court expressed sympathy that the decision did not offer a clear cut resolution by refusing to define the term sedentary work.  Instead, it noted the definition of sedentary work must be discerned on a case by cases basis from the medical and lay evidence presented and in light of the veteran’s education, training, and work history.

The Court also explicitly stated the Secretary could use notice and comment rule making to amend Section 4.16 to include and define the term sedentary work or veterans and veteran advocates could petition the VA for rulemaking to do the same.  However, I suspect the VA and advocates will let the matter alone.  My reading is that a grant or denial of TDIU should consider all evidence, including the veteran’s work history and education.  In other words, a holistic approach to consideration of TDIU (as required) does not specifically need the term sedentary work to be defined.

This is an early decision by Judge Toth and frankly demonstrates a willingness to refuse both the Secretary and veteran advocates what they want.  It likely reveals a judicial temperament that is tough but clear minded and deferential to the language of the law.

The decision was by Judge Toth and joined in by Chief Judge Davis and Judge Meredith.