Smith v. Shinseki

Summary

The United States Court of Appeals for the Federal Circuit affirmed the denial of Curtis E. Smith's claim for a total disability rating based on individual unemployability. The court held that the Department of Veterans Affairs was not required in every such case to obtain an industrial survey or vocational-expert report, although such assistance could be appropriate in particular circumstances.

Holdings

1. The duty to assist under 38 U.S.C. § 5103A does not require the VA to obtain an industrial survey or vocational-expert report in every TDIU case where the veteran cannot return to his former occupation.
2. A vocational expert is not invariably required in every TDIU case to determine whether the veteran's education and experience qualify him for work he is medically capable of performing, although the VA retains discretion to obtain such assistance when it is necessary under the particular facts.
3. The Federal Circuit did not conclude that the VA abused its discretion in declining to provide a vocational expert on the facts presented.

Questions Presented

1. Whether 38 U.S.C. § 5103A requires the VA to obtain an industrial survey or vocational-expert report in every TDIU case in which a veteran cannot perform his former occupation but might be able to perform alternative employment.
2. Whether a vocational expert is invariably required to determine whether a veteran's education and experience qualify him for work that he is medically capable of performing.

Disposition

affirmed