Veteranclaims’s Blog

March 16, 2019

Single Judge Application; Ray v. Wilkie, Vet.App, No. 17-0781 (Mar. 14, 2019); TDIU; “VA’s refusal to define ‘substantially gainful employment’ in 38 C.F.R. § 4.16(b) frustrates judicial review[.];


Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-3885

RONALD C. STEVENSON, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before ALLEN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

ALLEN, Judge: U.S. Navy veteran Ronald C. Stevenson is service connected for residuals of a cervical spine fracture with osteoarthritis. He appeals a September 6, 2016, Board of Veterans’ Appeals decision that denied him entitlement to TDIU because “his service-connected disability does not, in and of itself, render [him] unable to secure or follow a substantially gainful occupation.”1 On August 17, 2018, this matter was stayed pending the Court’s precedential decision in Ray v. Wilkie, No. 17-0781. The Court issued its decision in Ray on March 14, 2019.2

The Court lifts the August 17, 2018, stay.

Ray is dispositive of this appeal. In Ray, the Court held that “VA’s refusal to define ‘substantially gainful employment’ in 38 C.F.R. § 4.16(b) frustrates judicial review[.]“3 Here, as in Ray, the Board failed to define “substantially gainful employment,” and judicial review is frustrated. Thus, remand is warranted for the Board to provide adequate reasons or bases for its

decision.4

1 Record at 13.

2 See __ Vet.App. __, No. 17-0781 (Mar. 14, 2019).

3 Ray, __ Vet.App. __, slip op. at 2; see also 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).

4 See Tucker v. West, 11 Vet.App. 369, 375 (1998) (“Generally, where the Board has incorrectly applied the law, failed

to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise

2

In pursuing his case on remand, appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court.5 The Board must consider any such evidence or argument submitted.6 The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the decision.” 7 The Board must proceed

expeditiously.8

The stay of proceedings in this appeal is lifted. The Board’s September 6, 2016, decision is SET ASIDE and the matter REMANDED to the Board for readjudication.

DATED: March 15, 2019

Copies to:

Zachary M. Stolz, Esq.

VA General Counsel (027)

inadequate, a remand is the appropriate remedy.”).

5 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.

92, 97 (2018).

6 Kay v. Principi, 16 Vet.App. 529, 534 (2002).

7 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).

8 38 U.S.C. §§ 5109B, 7112.

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