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![Single Judge Application; Wait v. Wilkie, 33 Vet.App. (2020); The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.”;](https://haditprd.wpengine.com/wp-content/uploads/2022/05/Hadit-Final-Logo-Transparent.png){kind=logo}
Single Judge Application; Wait v. Wilkie, 33 Vet.App. (2020); The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.”;
Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-9062ANDREW M. THORPE, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before TOTH, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. ...
![Panel Application; Otero-Castro v. Principi, 16 Vet.App. 375, 380 (2002) (“The basic principles that apply to construing statutes apply equally to construing regulations.”). If it is not clear, “the Court may look to other sources, including the history and purpose of the regulation.” Bailey v. Wilkie, 33 Vet.App. 188, 194 (2021); see Kisor, 139 S. Ct. at 2415 (explaining that to exhaust the traditional tools of regulatory construction, “a court must ‘carefully consider[]’ the text, structure, history, and purpose of a regulation” (quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984))). “[D]eference [to the Agency] can arise only if a regulation is genuinely ambiguous[,] . . . after a court has resorted to all the standard tools of interpretation.” Kisor, 139 S. Ct. at 2414;](https://www.hadit.com/wp-content/uploads/2022/06/how-to-decide-when-to-start-a-new-website.jpg)
![Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;](https://www.hadit.com/wp-content/uploads/2022/05/Hadit-Final-Logo-Transparent.png){kind=logo}
