Smith v. Shinseki — VA not required to obtain vocational expert or industrial survey in every TDIU case

Curtis Smith sought TDIU and argued that VA was required to obtain an industrial survey from a vocational expert to determine whether he could perform work other than his former heavy labor occupations. The Board denied TDIU after considering his service-connected disabilities, education, work history, and multiple VA examinations showing he could perform sedentary or light work. The Veterans Court affirmed, and the Federal Circuit likewise affirmed.

The Federal Circuit framed the issue as a question of statutory interpretation under 38 U.S.C. § 5103A. It held that the duty to assist does not mandate vocational expert evidence as a matter of course in TDIU claims. The court relied on the statute’s text, which expressly mentions medical records, other records, and medical examinations/opinions, but not industrial surveys or vocational assessments. It also deferred to VA’s interpretation of its TDIU regulation and manual guidance, which treats actual job availability as an extraneous factor. The court distinguished Social Security disability law, where the regulations explicitly require consideration of jobs existing in the economy.

The decision matters because it confirms that vocational evidence may be helpful in some cases, but it is not automatically required by the duty to assist. VA retains discretion to decide when such evidence is necessary based on the facts of a particular claim.

Under 38 U.S.C. § 5103A, VA is not required to obtain an industrial survey or vocational expert opinion in every TDIU case; such evidence is only necessary when the facts of the particular claim make it needed to substantiate employability.

A claimant seeking TDIU cannot demand vocational expert development as a categorical rule. The better argument is that, on the specific facts, VA could not fairly decide employability without vocational evidence.

Smith is a leading Federal Circuit decision limiting categorical duty-to-assist theories in TDIU cases. It gives VA discretion over when vocational evidence is needed and narrows arguments that employability determinations must include labor-market analysis or industrial surveys.

Assuming VA must obtain vocational evidence in every TDIU claim simply because the veteran cannot return to prior employment.

A veteran with service-connected orthopedic and cardiac disabilities argues that VA had to obtain a vocational expert report before denying TDIU. Under Smith, that argument succeeds only if the veteran shows the case presented a specific evidentiary need for vocational assessment, not merely that such evidence could have been useful.

Use Smith to oppose blanket duty-to-assist arguments for mandatory vocational surveys, but distinguish it when the record shows an unusual dispute about transferable skills or educational fit that may make vocational evidence necessary.

Smith v. Shinseki