Minns v. Wilkie

Case: 20-1131 Document: 37 Page: 1 Filed: 11/20/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
QUEBELL L. MINNS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1131
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-1135, Judge Joseph L. Toth.
______________________
Decided: November 20, 2020
______________________
MARK RYAN LIPPMAN, The Veterans Law Group,
Poway, CA, for claimant-appellant.
ERIC LAUFGRABEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.,
LOREN MISHA PREHEIM; MARTIE ADELMAN, Y. KEN LEE, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
Case: 20-1131 Document: 37 Page: 2 Filed: 11/20/2020
2 MINNS v. WILKIE
______________________
Before REYNA, SCHALL, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
Appellant, Quebell L. Minns, appeals a decision of the
U.S. Court of Appeals for Veterans Claims (“Veterans
Court”) affirming a decision of the Board of Veterans’ Ap-
peals (“Board”) finding that Mr. Minns was capable of sub-
stantially gainful employment and denying entitlement to
a total disability rating based on individual unemployabil-
ity (“TDIU”). Minns v. Wilkie, No. 18-1135, 2019 WL
4741726, at *1–2 (Vet. App. Sept. 30, 2019); see J.A. 10
(Judgment), 15–32 (2017 Board Decision). We have juris-
diction pursuant to 38 U.S.C. § 7292(a). We affirm.
BACKGROUND
Mr. Minns served on active duty in the U.S. Air Force
from 1973 to 1975. J.A. 88; see J.A. 88–90 (2015 Regional
Office Rating Decision). In 1993, the Department of Veter-
ans Affairs (“VA”) assigned Mr. Minns a combined disabil-
ity rating of 10 percent for lumbosacral spine strain with
degenerative disk disease and associated residuals.
J.A. 88. Effective in 2000, the VA assigned Mr. Minns a
combined disability rating of 40 percent, increasing his
lumbosacral spine rating to 20 percent and assigning 10
percent each for peripheral neuropathy of the right and left
lower extremities. J.A. 88–89. Effective in 2013, the VA
assigned Mr. Minns a combined disability rating of 60 per-
cent, increasing his lumbosacral spine rating to 40 percent.
J.A. 88–89.
Since 2012, Mr. Minns has alleged that he is unable to
“procure or maintain employment” because of his service-
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MINNS v. WILKIE 3
related conditions and sought a TDIU. J.A. 93. 1 In 2015
and 2017, the Board issued decisions denying Mr. Minns
entitlement to a TDIU. J.A. 16. In the 2017 Board Deci-
sion, the Board noted consistent record evidence that
Mr. Minns was capable of performing “sedentary employ-
ment.” J.A. 29; see J.A. 22 (listing a 2000 VA examination
that assessed Mr. Minns as “generally capable of perform-
ing work through the sedentary, light and medium work
categories”), 23 (listing a 2002 VA assessment that “stated
[Mr. Minns] was capable of clerical/sedentary activity”), 24
(listing a 2006 Social Security Administration (“SSA”) as-
sessment that “determined [Mr. Minns] to be physically ca-
pable of performing many occupational tasks”), 26
(recounting Mr. Minns’s statement in a 2011 VA examina-
tion that he “could walk [one to three] miles”). The Board
found that “[t]he preponderance of the evidence is against
a finding that [Mr. Minns]’s service-connected disabilities
preclude him from obtaining and retaining substantially
gainful employment” and concluded that the “requirements
1 The VA may assign a TDIU “where the schedular
rating is less than total, when the disabled person is, in the
judgment of the rating agency, unable to secure or follow a
substantially gainful occupation as a result of service-con-
nected disabilities[,]” provided that if there is only one ser-
vice-connected disability, “this disability shall be ratable
at 60 percent or more, and that, if there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more, and sufficient additional disability
to bring the combined rating to 70 percent or more.” 38
C.F.R. § 4.16(a). VA rating boards may also submit “all
cases of veterans who are unemployable by reason of ser-
vice-connected disabilities, but who fail to meet the per-
centage standards set forth in” § 4.16(a) “for extra-
schedular [TDIU] consideration[.]” Id. § 4.16(b).
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4 MINNS v. WILKIE
to establish entitlement to a TDIU ha[d] not been met.”
J.A. 16.
Mr. Minns appealed to the Veterans Court, arguing, in-
ter alia, that the Veterans Court “must decide the meaning
of the term ‘sedentary employment.’” Minns, 2019 WL
4741726, at *1. The Veterans Court affirmed, and declined
to define the term. Id. at *1–2.
DISCUSSION
I. Standard of Review and Legal Standard
“The jurisdiction of this court to review decisions of the
Veterans Court is limited by statute.” Gazelle v.
Shulkin, 868 F.3d 1006, 1009 (Fed. Cir. 2017). We may re-
view a Veterans Court decision “with respect to the validity
of a decision of the [Veterans] Court on a rule of law or of
any statute or regulation . . . or any interpretation
thereof . . . that was relied on by the [Veterans] Court in
making the decision.” 38 U.S.C. § 7292(a). “Except to the
extent an appeal . . . presents a constitutional issue,” we
“may not review (A) a challenge to a factual determination,
or (B) a challenge to a law or regulation as applied to the
facts of a particular case.” Id. § 7292(d)(2). “We review
statutory and regulatory interpretations of the Veterans
Court de novo.” Gazelle, 868 F.3d at 1009 (quotation marks
and citation omitted).
II. The Veterans Court Was Not Required to Define
“Sedentary Employment” Under 38 U.S.C. § 7261(a)(1)
The Veterans Court affirmed the Board’s denial of
Mr. Minns’s entitlement to a TDIU. Minns, 2019 WL
4741726, at *2. The Veterans Court rejected Mr. Minns’s
argument that it was required to define the term “seden-
tary employment” used in the 2017 Board Decision. Id. at
*1. The Veterans Court explained that it could not define
the term because it “did not appear in any relevant statute
or regulation and so lacked ‘independent legal signifi-
cance[.]’” Id. at *1 (citing Withers v. Wilkie, 30 Vet.
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MINNS v. WILKIE 5
Ohio App. 139, 142 (2018)). 2 The Veterans Court concluded that
the 2017 Board Decision sufficiently explained “what [the
Board] meant by sedentary employment” and sufficiently
supported the Board’s finding that Mr. Minns could per-
form sedentary work and maintain “substantially gainful
employment.” Id. at *2. Mr. Minns argues that 38 U.S.C.
§ 7261(a)(1) requires the Veterans Court to define the term
“sedentary employment” used in the 2017 Board Decision.
Appellant’s Br. 14. We disagree with Mr. Minns.
Section 7261(a)(1) did not require the Veterans Court
to define the term “sedentary employment.” Sec-
tion 7261(a) to (a)(1) provides that “[i]n any action brought
under [chapter 72 of part V of title 38 of the United States
Code],” the Veterans Court, “to the extent necessary to its
decision and when presented, shall . . . determine the
meaning or applicability of the terms of an action of the
Secretary [of Veterans Affairs.]” 38 U.S.C § 7261(a)–(a)(1).
Thus, the Veterans Court must only “determine the
2 In Withers, the Veterans Court declined to define
the term “sedentary employment” used in a Board decision
denying entitlement to a TDIU. 30 Vet. App. at 142. The
Veterans Court explained that the term was not “men-
tioned, much less defined, in any relevant VA statute or
regulation,” id., and thus “ha[d] no independent legal sig-
nificance,” id. at 145. The Veterans Court concluded that
“the meaning and relevance of the term w[ould] have to be
discerned on a case-by-case basis,” id. at 149, and that
“where a veteran’s ability to perform sedentary work is a
basis for the Board’s decision,” the Board must explain the
term’s 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 vet-
eran’s overall disability picture and vocational history, and
the veteran’s ability to secure or follow a substantially
gainful occupation,” id. at 147.
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6 MINNS v. WILKIE
meaning” of a term if such definition is “necessary to its
decision.” Id. Here, the Veterans Court concluded that
the 2017 Board Decision sufficiently explained “what it
meant by sedentary employment,” such that defining the
term was not necessary to the Veterans Court’s decision.
Minns, 2019 WL 4741726, at *2. The Board detailed
Mr. Minns’s statements that he “experiences acute shoot-
ing pain to both legs while sitting down or walking,”
J.A. 20, and acknowledged “statements throughout the rec-
ord indicat[ing] [Mr. Minns] had difficulty with prolonged
walking and standing and used assistive devices,” J.A. 29,
but also observed that he had completed college courses
“with the intention of obtaining a degree in electrical engi-
neering, a field containing sedentary jobs,” J.A. 30. The
Board concluded that “the preponderance of the evi-
dence . . . indicates [that Mr. Minns] can still perform sed-
entary work,” J.A. 29, as he “could still perform jobs that
would allow [him] to sit or stand at will, or take breaks to
sit or stand as needed,” J.A. 30. As the Veterans Court
found, this discussion sufficiently expressed what the
Board meant by “sedentary employment.” Minns, 2019 WL
4741726, at *2. Thus, it was not necessary for the Veterans
Court to define the term in order to reach its decision to
affirm the 2017 Board Decision. Id. Accordingly,
§ 7261(a)(1) did not require the Veterans Court to define
the term “sedentary employment.” 3
3 Alternatively, the VA argues that the Veterans
Court was not required to define “sedentary employment”
because a Board decision is not an “action of the Secretary”
under § 7261(a)(1). See Appellee’s Br. 21–25. In light of
our conclusion that § 7261(a)(1) did not require the Veter-
ans Court to define the term “sedentary employment,” we
need not reach the issue of whether a Board decision is an
“action of the Secretary” under § 7261(a)(1). Cf. Burris v.
Wilkie, 888 F.3d 1352, 1361 (Fed. Cir. 2018) (holding that
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MINNS v. WILKIE 7
Mr. Minns’s primary counterargument is unpersua-
sive. Mr. Minns argues that allowing VA adjudicators to
consider the meaning of “sedentary employment” on a
“case-by-case basis from the medical and lay evidence pre-
sented and in light of each veteran’s education, training,
and work history,” Appellant’s Br. 20–21 (citing With-
ers, 30 Vet. App. 149–50), “is a sure recipe for decisional
anarchy,” id. at 21. Mr. Minns’s argument is without
merit. Application of the controlling rules or precedent to
the individual facts of each case is the hallmark of our com-
mon-law adjudicatory system. See Bettencourt v. Bd. of
Registration in Med. of Mass., 904 F.2d 772, 783 (1st
Cir. 1990) (describing how a judge performing “traditional
adjudicatory functions . . . decides facts, applies law, and
otherwise resolves disputes on the merits”) (internal quo-
tation marks omitted); cf. Commonwealth of Massachu-
setts v. Mellon, 262 U.S. 447, 488 (1923) (explaining that
the judiciary has the duty of “interpreting and applying”
governing law and rules “in cases properly brought before
the courts”). Additionally, alternative means exist to
achieve a uniform definition of “sedentary employment.”
For example, veterans may petition the VA for rulemaking
under 5 U.S.C. § 553(e) to add a formal definition of the
term to 38 C.F.R. § 4.16, and may seek review in this court
should the VA deny the petition. See Disabled Am. Veter-
ans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1075 (Fed.
Cir. 2017) (stating that this court has jurisdiction to review
VA actions under 5 U.S.C. § 553). 4
“[h]aving resolved [the] . . . particular challenge” on ap-
peal, “we need not” address the appellant’s alternative ar-
gument regarding the Veterans Court’s equitable powers).
4 Mr. Minns also appears to argue that we should or-
der the VA to adopt the SSA’s definition of “sedentary
work.” See Appellant’s Br. 24–26 (citing 20 C.F.R.
§ 404.1567(a)); see also 20 C.F.R. § 404.1567(a) (defining
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8 MINNS v. WILKIE
CONCLUSION
We have considered Mr. Minns’s remaining arguments
and find them unpersuasive. The Final Judgment of the
U.S. Court of Appeals for Veterans Claims is
AFFIRMED
“[s]edentary work” for SSA purposes as “involv[ing] lifting
no more than [ten] pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small
tools”). This argument is misplaced. “[G]iven the compre-
hensive statutory and regulatory scheme for the award of
veterans’ benefits, it would be not be appropriate for [us] to
impose” an SSA definition on the VA. White v. Prin-
cipi, 243 F.3d 1378, 1381 (Fed. Cir. 2001). Further, “Con-
gress left it to the VA, and not this court, to determine how
best to weigh evidence in veterans’ benefits cases[,]” and
“[o]ur limited role in this area is further reinforced by our
general inability to review [Veterans Court] decisions on
factual issues.” Id.