We have three cases scheduled for oral argument today. Let's start with the first one. This is field number 14-7090, Vetter versus McDonald. Mr. Smith, you reserved five minutes for a rebuttal. Okay. Thank you. Please begin when you're ready. May please support. I have two initial points I'd like to make regarding the interpretation of the VA regulations that issue in this case. First, with regard to section 4.16, contrary to the text of the regulation itself and the present from this court, the veterans court interpreted the regulation as including a TDIU finding has been reasonably raised by a record that contains evidence of unemployment ability if a veteran is later determined to have been able to obtain employment. Second, with regard to section 4.63, the veterans court incorrectly interpreted the regulation as requiring the equivalent of complete paralysis or ankylosis in order to reasonably raise a claim for loss of use and or foot. Mr. Vetter believes in both interpretations of these regulations were incorrect and asked this court to reverse the decision of the veterans court and you show us where the veterans court did a treatment in terms of interpreting the terms of either 4
.16 or 4.63. Sure. So with regard to 4.16, I think the evidence that the court was interpreting the regulation is in part shown by the fact that it cited 4.18 in interpretation at a, it's a record page A6. After considering the TDIU issue, it cites 4.18 which related to unemployment ability and instead of doing shows that it wasn't merely applying 4.16 in resolving Mr. Vetter's claim but it was actually incorporating a limitation. But it's also citing 4.16 too. You said it 4.16 as well but there would be no reason for the veterans court to have cited 4.18 if it wasn't for some reason incorporating a limitation from that regulation in its interpretation of 4
.17. Well, let me see if I understand. You started off, I think, by saying that the interpretive wrongful interpretation had to do with the, if I heard you correctly, the failure of the court to recognize what was required to trigger the inquiry into the 4.16. Is that right? It was, did I hear you correctly? Right. As opposed to the question of what the substantive requirements of 4.16 are. Right, right. Which is, is the argument you're making about the misinterpretation of 4.16. A substantive argument, our ineffective procedural argument, failure to recognize that there was evidence that should have provoked the board's inquiry into a 4.16. I think the question presented here because the VA and the board never actually reviewed 4.16 and its determination was whether or not it was reasonably raised by the record. Well, but that's not really an interpretation question of the regulation, right? That's a question of whether there was an error on the part of the board not to have looked at the record and concluded that it was reasonably raised by the evidence, right? Right
. But in determining that it wasn't reasonably raised, the court was looking at 4.16 and interpreted 4.16 as not encompassing a situation where a veteran is later enabled to secure employment and finding that his later employment prevented him from even reasonably raising the possibility of entitlement to TDIU under 4.16, which requires the veteran to be unable to obtain substantially gainful employment. The veteran's court was actually interpreting 4.16 as not applying in the situation because I'm a survey later. You think that the veteran's court was interpreting 4.16 not to require that or to require the substantial gainful employment was not required according to the veteran's court. Is that your view of what they were saying? That's my understanding of what the veteran's court, that's the interpretation that I believe the veteran's court made in this case. So would you say that? I think that you're asking us essentially to infer an interpretation from the way the veteran's court applied to slap facts, aren't you? No, I don't think there's any more. I think where in the opinion does it say 4.16 doesn't apply when a veteran gains employment? I acknowledge that the opinion itself nowhere says it explicitly in those terms. But I think there is no requirement under the jurisdictional statute that it be made explicit that an interpretation is..
. Well, sure, but I mean you have to show us where it actually even implicitly suggests that. I think it implicitly suggests that the court is interpreting the regulation that narrowly. As I pointed out before, in the fact that it's size 4.18, and either Secretary of State of the States is brief also in characterizing the veteran's court opinion, said that... But it also says 4.16. It's a size 4.16 and 4.18. Well, the passage that struck me as most indicative of what the court seemed to think 4.16 required was the passage on A5, the second full paragraph, and where the court is saying there is no record evidence, this is where it's dealing with the question of whether there was record evidence to support a TDIU determination. There is no record evidence that he was let go of that position as of July 12, 2012. That was his new position
. Or that, and here's the critical language, the position was not one of substantially gainful employment, followed by Senate saying he did not suggest below that he was unemployable or unable to obtain substantially gainful employment. That sounds like they are indeed interpreting 4.16 as requiring substantial gainful employment. Isn't that a fair, the fairest reading of that language? The issue, I agree with that's of the language, says the issue is that the reason the record does not contain evidence of substantially gainful employment, or Mr. Vetter's... The more lack of sense that we get the employment is because the VA and the board never perform this analysis to begin with. And so the issue is under... It's not the analysis that it shows that it's the record of it. But under..
. We're not making a failure to develop or assist argument here. You're saying that they didn't look at the record properly, right? So the record is what it is. But under 4.16B, a full statement as to the veteran service connected to the ability of the employment history is required to be performed by the board, when a TDI claim is recently raised. But when it's recently raised, the veterans court here found as a matter of fact that it wasn't recently raised by this record. But in doing so, it did so in the reason the only basis provided by the veterans court in reaching that conclusion is that Mr. Vetter was later able to obtain employment. Well, that's an entirely accurate. There's an OPA-86. It elaborates a note that he had several jobs as his claims for benefit was processed and then had this job for seven months, it was decided. So I think the court also understands that he lost those jobs partly due to his disability, but it looks at the record as a whole and finds that as a whole, it doesn't demonstrate unemployability. I don't see where it's applying the incorrect legal standard there. I mean, I think your argument is that they've applied the incorrect legal standard by once a veteran gets a substantial job, then they can never be the TDIU. And if that's what this was saying, you might have an argument, but I don't see where the veterans court is saying that. So the two things pointed to OPA-86, the fact that he had several jobs and that he was actually employed
. The problem is that under this court's president and both Robert and the Comer and Roberson, this court interpreting the same regulation said that all a veteran has to do is prevent, present evidence of unemployed. Well, Roberson's a little bit different, isn't it, though, because Roberson is based on the part of the statute where the veteran has met the scheduler, the 60 or the 80% I think, and chose unemployability. That's different than 4.16b, isn't it? I don't think there's a distinction made in the statute or in Roberson regarding the fact that it was applied. Is essentially what you're arguing for, is that any time whatsoever, no matter what the rating schedules provide, whether it's a 10%, or an 80%. If there's any evidence that the veteran found a job, the board has to stay on the record that 4.16b has been considered and doesn't apply. I think the question is not whether or not the veteran has obtained a job. I think what the point is is if the veteran has presented evidence of unemployability, this instance evidence that he had been terminated for his job and that he was unemployed for a period of year and a half during the time frame, that under those circumstances, the VA should consider the TDI use that. Let me return to make sure that I understand your position on the jurisdictional issue, whether we have jurisdiction or not. Suppose that the veterans court had said explicitly, we interpret section 4.16, according to its terms, to require a showing that he was unable to obtain substantially gainful employment. The exact language from the regulation point, period. Then we went on to say, we've looked at this record and we conclude on this record in light of the fact that he had a job ultimately which seemed to be, there was no indication that it wasn't a substantial employment. It was a maintenance supervisor or something like that
. In light of that evidence, we think that that standard is satisfied. Would we have jurisdiction in that case given that they read 4.16 to require exactly what I understand that you're saying that it's unsuitably required to be interpreted to say? I think under those circumstances, I think it would present a factual question, this court would be a barred jurisdiction. But I don't think that's exactly the same as what we have here because here we have the court also citing 4.18 and saying that in light of 4.18 as well as 4.16. In the veteran court's initial opinion, it didn't cite 4.16 at all. And that's at a... Sure, but you pointed out an error and the veterans court looked at it and said under 4.16 also the record doesn't raise unemployment. I think my position is said by citing 4
.18 and finding that the later employment was a bar to Mr. Betters, reasonably raising the issue. The veterans court was at least implicitly interpreting 4.16 to preclude to the TDIU, be reasonably raised. The case missed. You're into your revival. Do you want to say something about your 4.63 claim now or something on reserve your time? Just briefly, I'll note that 4.63 wasn't interpreted in this case as well. The court found that it required that at least the equivalent of complete paralysis or in kill those to reasonably raise an issue of loss of use. And we believe that that is unnecessarily limiting of the regulation is not required. Those two subsections of the regulation are not the requirements of the general subsection which requires a determination based on the actual remaining function. Here from the government. Mr. Pihon
. Good morning and may it please the court. The court should dismiss this appeal for lack of jurisdiction. Whether the record reasonably raised the TDIU claim in any given case is a factual question or most involves the application of law to act. The veterans court here didn't merge sections 4.16 and 4.18. It simply cited both of those sections. The veterans court didn't hold the any in time. It was the same non-monger. Why did the veterans court cite 4.18? Well, 4.18. What is this trying to suggest to the reader by evoking 4.18? Well, 4.18 also talks about unemployment ability and when a veteran may be considered as unemployable. So I think the veterans court was simply citing both 4.16 and 4.18 to cover all of its all spaces. Obviously, the issue here was whether or not Mr. Vetter is in fact unemployable. But it certainly referenced 4.16 and also referenced the specific language in 4.16 regarding substantial gainful occupation. Do you think the term unemployable in 4.18 equals the requirement that the employment be substantially gainful? Right. I think it does. I mean, it doesn't say so. I guess it explicitly does. In 4.18, it doesn't, but certainly in 4
. So I think the veterans court was simply citing both 4.16 and 4.18 to cover all of its all spaces. Obviously, the issue here was whether or not Mr. Vetter is in fact unemployable. But it certainly referenced 4.16 and also referenced the specific language in 4.16 regarding substantial gainful occupation. Do you think the term unemployable in 4.18 equals the requirement that the employment be substantially gainful? Right. I think it does. I mean, it doesn't say so. I guess it explicitly does. In 4.18, it doesn't, but certainly in 4.16. That's what that's what that's what you interpret those terms as being. Right. Certainly for a TDIU claim, the issue is essentially gainful. But you does. But I think you're also saying that even for 4.18 claims, which are a specific narrow category of claims, that would nonetheless also require substantial, substantially gainful employment. Right. That's right. That's right. Your Honor. Is there any hint anywhere in veterans court or for that matter board precedent as to what constitutes substantially gainful? It has to be something other than marginal, Your Honor. I don't recall the regulation of hand, but I believe there's a regulation that talks about marginal employment as well. Right. So it has to be something other than marginal
.16. That's what that's what that's what you interpret those terms as being. Right. Certainly for a TDIU claim, the issue is essentially gainful. But you does. But I think you're also saying that even for 4.18 claims, which are a specific narrow category of claims, that would nonetheless also require substantial, substantially gainful employment. Right. That's right. That's right. Your Honor. Is there any hint anywhere in veterans court or for that matter board precedent as to what constitutes substantially gainful? It has to be something other than marginal, Your Honor. I don't recall the regulation of hand, but I believe there's a regulation that talks about marginal employment as well. Right. So it has to be something other than marginal. And here, of course, the veterans court made the determination that the record simply didn't indicate. And Mr. Vetter didn't assert that the job that he held was anything other than substantially gainful. Moreover, Your Honor, even if your Honor is even if the court considers this, the merits of this claim any error here. Mr. Prearm, are you suggesting that the veteran has to state on the record that although he may be employed, his job isn't substantially gainful? Well, certainly if the issue presented to the veterans court and the veterans court doesn't make any sort of assertion, otherwise, then it seems reasonable for the veterans court to conclude that in fact the employment is substantially gainful. And the veterans court, of course, looked at the record here as well and expressly stated that there simply is no indication of the record. The employment here was other than substantially gainful. Moreover, even if the court considers the merits, any error here in not considering TIE was harmless there, the board, in fact, considered whether the disability here caused market interference with employment. Under section 3.321 B1, the test for TDIU under section 4.16 is actually a higher standard. So if Mr. Vetter wasn't able to meet that lower standard before the board, he certainly wouldn't be able to demonstrate TDIU. Turning to Mr
. And here, of course, the veterans court made the determination that the record simply didn't indicate. And Mr. Vetter didn't assert that the job that he held was anything other than substantially gainful. Moreover, Your Honor, even if your Honor is even if the court considers this, the merits of this claim any error here. Mr. Prearm, are you suggesting that the veteran has to state on the record that although he may be employed, his job isn't substantially gainful? Well, certainly if the issue presented to the veterans court and the veterans court doesn't make any sort of assertion, otherwise, then it seems reasonable for the veterans court to conclude that in fact the employment is substantially gainful. And the veterans court, of course, looked at the record here as well and expressly stated that there simply is no indication of the record. The employment here was other than substantially gainful. Moreover, even if the court considers the merits, any error here in not considering TIE was harmless there, the board, in fact, considered whether the disability here caused market interference with employment. Under section 3.321 B1, the test for TDIU under section 4.16 is actually a higher standard. So if Mr. Vetter wasn't able to meet that lower standard before the board, he certainly wouldn't be able to demonstrate TDIU. Turning to Mr. Vetter briefly to Mr. Vetter's claim under section 4.63. I assume that the test of employability has to do with the particular skill set and experience of the particular veteran. In other words, you couldn't say if somebody who has been a carpenter all his life and is deprived of the capacity to continue to do carpentry, could nonetheless write novels for a living and that would be a substantial gain from employment. Although I wouldn't necessarily say that just because one couldn't do carpentry, there may not be other jobs that the veteran could do. I think the veteran would say, you could go to law school and become a lawyer here. I don't know. I have any skills. I think that would be on reason. That's right. Regarding the claim under 4.63, this court also lacks jurisdiction. The veteran's court simply did not interpret 4.63 as Mr
. Vetter briefly to Mr. Vetter's claim under section 4.63. I assume that the test of employability has to do with the particular skill set and experience of the particular veteran. In other words, you couldn't say if somebody who has been a carpenter all his life and is deprived of the capacity to continue to do carpentry, could nonetheless write novels for a living and that would be a substantial gain from employment. Although I wouldn't necessarily say that just because one couldn't do carpentry, there may not be other jobs that the veteran could do. I think the veteran would say, you could go to law school and become a lawyer here. I don't know. I have any skills. I think that would be on reason. That's right. Regarding the claim under 4.63, this court also lacks jurisdiction. The veteran's court simply did not interpret 4.63 as Mr. Vetter suggests. It didn't limit what the lawsuit was used at hand to only the specific examples cited in the regulation. So this court should also dismiss that claim as well. So unless the court has further questions for these reasons, we respect the request that the court does dismiss this appeal. Well, why did the opinion invoke complete ankylosis and complete paralysis? I'm sorry, why did it? Yeah, why did it? Well, it doesn't that suggest that the veteran's court's mind, that is what's needed in order to add its further requirements to this regulation. I know your honor. In fact, the veteran's court specifically said that those are just examples provided in the regulation. And obviously noted those examples, but it didn't limit its analysis to only, it didn't say the only way you can show loss of use of the hand is if you can meet one of those two examples. It never said that in its opinion, your honor. So that actually cited earlier at page 73 of the joint appendix, the more general language in the regulation concerning whether or not the effective function of the hand would be equally well served by an amputation stump with the suitable prosthetic device. And that's the portion of the regulation that Mr. Vetter focuses on. Well, the veterans cited that very language in its opinion. So for these reasons, we respect the request of the court dismissed. Thank you
. Vetter suggests. It didn't limit what the lawsuit was used at hand to only the specific examples cited in the regulation. So this court should also dismiss that claim as well. So unless the court has further questions for these reasons, we respect the request that the court does dismiss this appeal. Well, why did the opinion invoke complete ankylosis and complete paralysis? I'm sorry, why did it? Yeah, why did it? Well, it doesn't that suggest that the veteran's court's mind, that is what's needed in order to add its further requirements to this regulation. I know your honor. In fact, the veteran's court specifically said that those are just examples provided in the regulation. And obviously noted those examples, but it didn't limit its analysis to only, it didn't say the only way you can show loss of use of the hand is if you can meet one of those two examples. It never said that in its opinion, your honor. So that actually cited earlier at page 73 of the joint appendix, the more general language in the regulation concerning whether or not the effective function of the hand would be equally well served by an amputation stump with the suitable prosthetic device. And that's the portion of the regulation that Mr. Vetter focuses on. Well, the veterans cited that very language in its opinion. So for these reasons, we respect the request of the court dismissed. Thank you. Thank you. Mr. Smith will give you four minutes. Thank you for leading it. I just have a couple of quick points. First, that's the jurisdictional issue under 4.16. For all the reasons mentioned before, the blue report does have jurisdiction. And indeed, in the robust case, the court was deciding similar issue. And this, the federal case determined that they have jurisdiction to, to hear the case in that instance. So I think this case presents a similar question regarding 4.16 and when it's reasonably raised and that the court also has jurisdiction. But there you're going back to the reasonably raised question as being the jurisdictional point as opposed to the substantive question of what does 4.16 mean with respect to what the elements of proof required. So I'm not clear which of those you're saying is the jurisdictional hook for this court
. Thank you. Mr. Smith will give you four minutes. Thank you for leading it. I just have a couple of quick points. First, that's the jurisdictional issue under 4.16. For all the reasons mentioned before, the blue report does have jurisdiction. And indeed, in the robust case, the court was deciding similar issue. And this, the federal case determined that they have jurisdiction to, to hear the case in that instance. So I think this case presents a similar question regarding 4.16 and when it's reasonably raised and that the court also has jurisdiction. But there you're going back to the reasonably raised question as being the jurisdictional point as opposed to the substantive question of what does 4.16 mean with respect to what the elements of proof required. So I'm not clear which of those you're saying is the jurisdictional hook for this court. I think the jurisdictional hook is the interpretation of the regulation. The interpretation of the regulation as saying the required substantial substantial, painful employment as you read it. That's right. Okay. So the robust and issue really isn't the jurisdictional hook issue then. Right. I think it's, yeah. Sorry. Okay. Second, briefly, the secretary notes the harmless error of the decision of the case. And I think it was pointed out briefs. I think there clearly is harmful error in this case if the court determined to just have jurisdiction because Mr. Vetter under 4.16 is entitled to certain under 4.16, you know, full statement as to his service-needed disabilities employment history, et cetera
. I think the jurisdictional hook is the interpretation of the regulation. The interpretation of the regulation as saying the required substantial substantial, painful employment as you read it. That's right. Okay. So the robust and issue really isn't the jurisdictional hook issue then. Right. I think it's, yeah. Sorry. Okay. Second, briefly, the secretary notes the harmless error of the decision of the case. And I think it was pointed out briefs. I think there clearly is harmful error in this case if the court determined to just have jurisdiction because Mr. Vetter under 4.16 is entitled to certain under 4.16, you know, full statement as to his service-needed disabilities employment history, et cetera. It was not performed by the VA. And so whether or not the VA considered 3.321 or some other statute that may have similar or different things. It is not the analysis you can title to under this regulation and the case cited in our brief show that they aren't the same analysis. They're not overlapping with their really different analysis. So I think the harmless error issues should be disregarded. And then finally, with regard to 4.63, the veterans court did note that the two subsections that characterize them as examples of what was required to meet the 4.63 statute. And I think that is in fact indicative of the fact that it is interpreting the language of the regulation above that as requiring something, you know, along the lines of those two subsections. But there's nothing in the regulation itself that says those are meant to be examples or criteria or set of threshold or be anything related to what is actually required to meet the text of the body of the regulation, which requires determination made on the basis of the actual remaining function, particularly in these of a hand, whether acts of grasping manipulation, et cetera, is, you know, is present or deficient to the point that raises the issue. And if you require complete paralysis or complete ankylosis as a prerequisite for getting even recently raises, then you're not going to be able to determine the actual running function because you're going to have required a complete paralysis. You're not going to be able to that analysis. You'll never get to that analysis. Wouldn't you read 4
. It was not performed by the VA. And so whether or not the VA considered 3.321 or some other statute that may have similar or different things. It is not the analysis you can title to under this regulation and the case cited in our brief show that they aren't the same analysis. They're not overlapping with their really different analysis. So I think the harmless error issues should be disregarded. And then finally, with regard to 4.63, the veterans court did note that the two subsections that characterize them as examples of what was required to meet the 4.63 statute. And I think that is in fact indicative of the fact that it is interpreting the language of the regulation above that as requiring something, you know, along the lines of those two subsections. But there's nothing in the regulation itself that says those are meant to be examples or criteria or set of threshold or be anything related to what is actually required to meet the text of the body of the regulation, which requires determination made on the basis of the actual remaining function, particularly in these of a hand, whether acts of grasping manipulation, et cetera, is, you know, is present or deficient to the point that raises the issue. And if you require complete paralysis or complete ankylosis as a prerequisite for getting even recently raises, then you're not going to be able to determine the actual running function because you're going to have required a complete paralysis. You're not going to be able to that analysis. You'll never get to that analysis. Wouldn't you read 4.63 A and B, which refer to the ankylosis and complete paralysis as being examples of what constitutes the loss of a hand or a foot? The way I read the regulation, I don't read them as examples. I read the text of the regulation above as being the standard met, we require 4.63 and A and B are merely two ways that automatically qualify for 4.63 consideration, you know, qualifying or the statute. There aren't necessarily examples or meant to limit the text above them. I view them just as two circumstances that automatically meet the standard, not necessarily limiting the standard of the text above them. Okay. I think my time is less than a further question. Thank you. Thank you.
We have three cases scheduled for oral argument today. Let's start with the first one. This is field number 14-7090, Vetter versus McDonald. Mr. Smith, you reserved five minutes for a rebuttal. Okay. Thank you. Please begin when you're ready. May please support. I have two initial points I'd like to make regarding the interpretation of the VA regulations that issue in this case. First, with regard to section 4.16, contrary to the text of the regulation itself and the present from this court, the veterans court interpreted the regulation as including a TDIU finding has been reasonably raised by a record that contains evidence of unemployment ability if a veteran is later determined to have been able to obtain employment. Second, with regard to section 4.63, the veterans court incorrectly interpreted the regulation as requiring the equivalent of complete paralysis or ankylosis in order to reasonably raise a claim for loss of use and or foot. Mr. Vetter believes in both interpretations of these regulations were incorrect and asked this court to reverse the decision of the veterans court and you show us where the veterans court did a treatment in terms of interpreting the terms of either 4.16 or 4.63. Sure. So with regard to 4.16, I think the evidence that the court was interpreting the regulation is in part shown by the fact that it cited 4.18 in interpretation at a, it's a record page A6. After considering the TDIU issue, it cites 4.18 which related to unemployment ability and instead of doing shows that it wasn't merely applying 4.16 in resolving Mr. Vetter's claim but it was actually incorporating a limitation. But it's also citing 4.16 too. You said it 4.16 as well but there would be no reason for the veterans court to have cited 4.18 if it wasn't for some reason incorporating a limitation from that regulation in its interpretation of 4.17. Well, let me see if I understand. You started off, I think, by saying that the interpretive wrongful interpretation had to do with the, if I heard you correctly, the failure of the court to recognize what was required to trigger the inquiry into the 4.16. Is that right? It was, did I hear you correctly? Right. As opposed to the question of what the substantive requirements of 4.16 are. Right, right. Which is, is the argument you're making about the misinterpretation of 4.16. A substantive argument, our ineffective procedural argument, failure to recognize that there was evidence that should have provoked the board's inquiry into a 4.16. I think the question presented here because the VA and the board never actually reviewed 4.16 and its determination was whether or not it was reasonably raised by the record. Well, but that's not really an interpretation question of the regulation, right? That's a question of whether there was an error on the part of the board not to have looked at the record and concluded that it was reasonably raised by the evidence, right? Right. But in determining that it wasn't reasonably raised, the court was looking at 4.16 and interpreted 4.16 as not encompassing a situation where a veteran is later enabled to secure employment and finding that his later employment prevented him from even reasonably raising the possibility of entitlement to TDIU under 4.16, which requires the veteran to be unable to obtain substantially gainful employment. The veteran's court was actually interpreting 4.16 as not applying in the situation because I'm a survey later. You think that the veteran's court was interpreting 4.16 not to require that or to require the substantial gainful employment was not required according to the veteran's court. Is that your view of what they were saying? That's my understanding of what the veteran's court, that's the interpretation that I believe the veteran's court made in this case. So would you say that? I think that you're asking us essentially to infer an interpretation from the way the veteran's court applied to slap facts, aren't you? No, I don't think there's any more. I think where in the opinion does it say 4.16 doesn't apply when a veteran gains employment? I acknowledge that the opinion itself nowhere says it explicitly in those terms. But I think there is no requirement under the jurisdictional statute that it be made explicit that an interpretation is... Well, sure, but I mean you have to show us where it actually even implicitly suggests that. I think it implicitly suggests that the court is interpreting the regulation that narrowly. As I pointed out before, in the fact that it's size 4.18, and either Secretary of State of the States is brief also in characterizing the veteran's court opinion, said that... But it also says 4.16. It's a size 4.16 and 4.18. Well, the passage that struck me as most indicative of what the court seemed to think 4.16 required was the passage on A5, the second full paragraph, and where the court is saying there is no record evidence, this is where it's dealing with the question of whether there was record evidence to support a TDIU determination. There is no record evidence that he was let go of that position as of July 12, 2012. That was his new position. Or that, and here's the critical language, the position was not one of substantially gainful employment, followed by Senate saying he did not suggest below that he was unemployable or unable to obtain substantially gainful employment. That sounds like they are indeed interpreting 4.16 as requiring substantial gainful employment. Isn't that a fair, the fairest reading of that language? The issue, I agree with that's of the language, says the issue is that the reason the record does not contain evidence of substantially gainful employment, or Mr. Vetter's... The more lack of sense that we get the employment is because the VA and the board never perform this analysis to begin with. And so the issue is under... It's not the analysis that it shows that it's the record of it. But under... We're not making a failure to develop or assist argument here. You're saying that they didn't look at the record properly, right? So the record is what it is. But under 4.16B, a full statement as to the veteran service connected to the ability of the employment history is required to be performed by the board, when a TDI claim is recently raised. But when it's recently raised, the veterans court here found as a matter of fact that it wasn't recently raised by this record. But in doing so, it did so in the reason the only basis provided by the veterans court in reaching that conclusion is that Mr. Vetter was later able to obtain employment. Well, that's an entirely accurate. There's an OPA-86. It elaborates a note that he had several jobs as his claims for benefit was processed and then had this job for seven months, it was decided. So I think the court also understands that he lost those jobs partly due to his disability, but it looks at the record as a whole and finds that as a whole, it doesn't demonstrate unemployability. I don't see where it's applying the incorrect legal standard there. I mean, I think your argument is that they've applied the incorrect legal standard by once a veteran gets a substantial job, then they can never be the TDIU. And if that's what this was saying, you might have an argument, but I don't see where the veterans court is saying that. So the two things pointed to OPA-86, the fact that he had several jobs and that he was actually employed. The problem is that under this court's president and both Robert and the Comer and Roberson, this court interpreting the same regulation said that all a veteran has to do is prevent, present evidence of unemployed. Well, Roberson's a little bit different, isn't it, though, because Roberson is based on the part of the statute where the veteran has met the scheduler, the 60 or the 80% I think, and chose unemployability. That's different than 4.16b, isn't it? I don't think there's a distinction made in the statute or in Roberson regarding the fact that it was applied. Is essentially what you're arguing for, is that any time whatsoever, no matter what the rating schedules provide, whether it's a 10%, or an 80%. If there's any evidence that the veteran found a job, the board has to stay on the record that 4.16b has been considered and doesn't apply. I think the question is not whether or not the veteran has obtained a job. I think what the point is is if the veteran has presented evidence of unemployability, this instance evidence that he had been terminated for his job and that he was unemployed for a period of year and a half during the time frame, that under those circumstances, the VA should consider the TDI use that. Let me return to make sure that I understand your position on the jurisdictional issue, whether we have jurisdiction or not. Suppose that the veterans court had said explicitly, we interpret section 4.16, according to its terms, to require a showing that he was unable to obtain substantially gainful employment. The exact language from the regulation point, period. Then we went on to say, we've looked at this record and we conclude on this record in light of the fact that he had a job ultimately which seemed to be, there was no indication that it wasn't a substantial employment. It was a maintenance supervisor or something like that. In light of that evidence, we think that that standard is satisfied. Would we have jurisdiction in that case given that they read 4.16 to require exactly what I understand that you're saying that it's unsuitably required to be interpreted to say? I think under those circumstances, I think it would present a factual question, this court would be a barred jurisdiction. But I don't think that's exactly the same as what we have here because here we have the court also citing 4.18 and saying that in light of 4.18 as well as 4.16. In the veteran court's initial opinion, it didn't cite 4.16 at all. And that's at a... Sure, but you pointed out an error and the veterans court looked at it and said under 4.16 also the record doesn't raise unemployment. I think my position is said by citing 4.18 and finding that the later employment was a bar to Mr. Betters, reasonably raising the issue. The veterans court was at least implicitly interpreting 4.16 to preclude to the TDIU, be reasonably raised. The case missed. You're into your revival. Do you want to say something about your 4.63 claim now or something on reserve your time? Just briefly, I'll note that 4.63 wasn't interpreted in this case as well. The court found that it required that at least the equivalent of complete paralysis or in kill those to reasonably raise an issue of loss of use. And we believe that that is unnecessarily limiting of the regulation is not required. Those two subsections of the regulation are not the requirements of the general subsection which requires a determination based on the actual remaining function. Here from the government. Mr. Pihon. Good morning and may it please the court. The court should dismiss this appeal for lack of jurisdiction. Whether the record reasonably raised the TDIU claim in any given case is a factual question or most involves the application of law to act. The veterans court here didn't merge sections 4.16 and 4.18. It simply cited both of those sections. The veterans court didn't hold the any in time. It was the same non-monger. Why did the veterans court cite 4.18? Well, 4.18. What is this trying to suggest to the reader by evoking 4.18? Well, 4.18 also talks about unemployment ability and when a veteran may be considered as unemployable. So I think the veterans court was simply citing both 4.16 and 4.18 to cover all of its all spaces. Obviously, the issue here was whether or not Mr. Vetter is in fact unemployable. But it certainly referenced 4.16 and also referenced the specific language in 4.16 regarding substantial gainful occupation. Do you think the term unemployable in 4.18 equals the requirement that the employment be substantially gainful? Right. I think it does. I mean, it doesn't say so. I guess it explicitly does. In 4.18, it doesn't, but certainly in 4.16. That's what that's what that's what you interpret those terms as being. Right. Certainly for a TDIU claim, the issue is essentially gainful. But you does. But I think you're also saying that even for 4.18 claims, which are a specific narrow category of claims, that would nonetheless also require substantial, substantially gainful employment. Right. That's right. That's right. Your Honor. Is there any hint anywhere in veterans court or for that matter board precedent as to what constitutes substantially gainful? It has to be something other than marginal, Your Honor. I don't recall the regulation of hand, but I believe there's a regulation that talks about marginal employment as well. Right. So it has to be something other than marginal. And here, of course, the veterans court made the determination that the record simply didn't indicate. And Mr. Vetter didn't assert that the job that he held was anything other than substantially gainful. Moreover, Your Honor, even if your Honor is even if the court considers this, the merits of this claim any error here. Mr. Prearm, are you suggesting that the veteran has to state on the record that although he may be employed, his job isn't substantially gainful? Well, certainly if the issue presented to the veterans court and the veterans court doesn't make any sort of assertion, otherwise, then it seems reasonable for the veterans court to conclude that in fact the employment is substantially gainful. And the veterans court, of course, looked at the record here as well and expressly stated that there simply is no indication of the record. The employment here was other than substantially gainful. Moreover, even if the court considers the merits, any error here in not considering TIE was harmless there, the board, in fact, considered whether the disability here caused market interference with employment. Under section 3.321 B1, the test for TDIU under section 4.16 is actually a higher standard. So if Mr. Vetter wasn't able to meet that lower standard before the board, he certainly wouldn't be able to demonstrate TDIU. Turning to Mr. Vetter briefly to Mr. Vetter's claim under section 4.63. I assume that the test of employability has to do with the particular skill set and experience of the particular veteran. In other words, you couldn't say if somebody who has been a carpenter all his life and is deprived of the capacity to continue to do carpentry, could nonetheless write novels for a living and that would be a substantial gain from employment. Although I wouldn't necessarily say that just because one couldn't do carpentry, there may not be other jobs that the veteran could do. I think the veteran would say, you could go to law school and become a lawyer here. I don't know. I have any skills. I think that would be on reason. That's right. Regarding the claim under 4.63, this court also lacks jurisdiction. The veteran's court simply did not interpret 4.63 as Mr. Vetter suggests. It didn't limit what the lawsuit was used at hand to only the specific examples cited in the regulation. So this court should also dismiss that claim as well. So unless the court has further questions for these reasons, we respect the request that the court does dismiss this appeal. Well, why did the opinion invoke complete ankylosis and complete paralysis? I'm sorry, why did it? Yeah, why did it? Well, it doesn't that suggest that the veteran's court's mind, that is what's needed in order to add its further requirements to this regulation. I know your honor. In fact, the veteran's court specifically said that those are just examples provided in the regulation. And obviously noted those examples, but it didn't limit its analysis to only, it didn't say the only way you can show loss of use of the hand is if you can meet one of those two examples. It never said that in its opinion, your honor. So that actually cited earlier at page 73 of the joint appendix, the more general language in the regulation concerning whether or not the effective function of the hand would be equally well served by an amputation stump with the suitable prosthetic device. And that's the portion of the regulation that Mr. Vetter focuses on. Well, the veterans cited that very language in its opinion. So for these reasons, we respect the request of the court dismissed. Thank you. Thank you. Mr. Smith will give you four minutes. Thank you for leading it. I just have a couple of quick points. First, that's the jurisdictional issue under 4.16. For all the reasons mentioned before, the blue report does have jurisdiction. And indeed, in the robust case, the court was deciding similar issue. And this, the federal case determined that they have jurisdiction to, to hear the case in that instance. So I think this case presents a similar question regarding 4.16 and when it's reasonably raised and that the court also has jurisdiction. But there you're going back to the reasonably raised question as being the jurisdictional point as opposed to the substantive question of what does 4.16 mean with respect to what the elements of proof required. So I'm not clear which of those you're saying is the jurisdictional hook for this court. I think the jurisdictional hook is the interpretation of the regulation. The interpretation of the regulation as saying the required substantial substantial, painful employment as you read it. That's right. Okay. So the robust and issue really isn't the jurisdictional hook issue then. Right. I think it's, yeah. Sorry. Okay. Second, briefly, the secretary notes the harmless error of the decision of the case. And I think it was pointed out briefs. I think there clearly is harmful error in this case if the court determined to just have jurisdiction because Mr. Vetter under 4.16 is entitled to certain under 4.16, you know, full statement as to his service-needed disabilities employment history, et cetera. It was not performed by the VA. And so whether or not the VA considered 3.321 or some other statute that may have similar or different things. It is not the analysis you can title to under this regulation and the case cited in our brief show that they aren't the same analysis. They're not overlapping with their really different analysis. So I think the harmless error issues should be disregarded. And then finally, with regard to 4.63, the veterans court did note that the two subsections that characterize them as examples of what was required to meet the 4.63 statute. And I think that is in fact indicative of the fact that it is interpreting the language of the regulation above that as requiring something, you know, along the lines of those two subsections. But there's nothing in the regulation itself that says those are meant to be examples or criteria or set of threshold or be anything related to what is actually required to meet the text of the body of the regulation, which requires determination made on the basis of the actual remaining function, particularly in these of a hand, whether acts of grasping manipulation, et cetera, is, you know, is present or deficient to the point that raises the issue. And if you require complete paralysis or complete ankylosis as a prerequisite for getting even recently raises, then you're not going to be able to determine the actual running function because you're going to have required a complete paralysis. You're not going to be able to that analysis. You'll never get to that analysis. Wouldn't you read 4.63 A and B, which refer to the ankylosis and complete paralysis as being examples of what constitutes the loss of a hand or a foot? The way I read the regulation, I don't read them as examples. I read the text of the regulation above as being the standard met, we require 4.63 and A and B are merely two ways that automatically qualify for 4.63 consideration, you know, qualifying or the statute. There aren't necessarily examples or meant to limit the text above them. I view them just as two circumstances that automatically meet the standard, not necessarily limiting the standard of the text above them. Okay. I think my time is less than a further question. Thank you. Thank you