Cantrell: TDIU, EMPLOYMENT "IN A PROTECTED ENVIRONMENT"

Cantrell v. Shulkin, docket no. 15-3439 (Apr. 18, 2017)

HELD: VA has not defined “employment in a protected environment” for purposes of entitlement to TDIU, but factors to consider include “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work.” VA adjudicators must consider the combined impact of a veteran’s multiple service-connected disabilities in determining whether referral for extraschedular consideration is warranted.

SUMMARY: Veteran Eric Cantrell was service connected for ulcerative colitis, among other conditions. He requested a total disability rating based on individual unemployability (TDIU) based on evidence of chronic loose stools and abdominal discomfort that “made it difficult for him to stand or be away from the bathroom for prolonged periods of time.” He reported having 6-10 bowel movements a day – when he was feeling well – and up to 16-20 bowel movements a day during his monthly episodes of “pouchitis” that lasted three to four days.

Mr. Cantrell was employed as a park ranger and was able to “work around his condition by knowing the location of every restroom in the park and by avoiding eating anything at work during pouchitis episodes.” He stated that he was only able to maintain his job “because of the many accommodations made by his employer, including being assigned only to duty stations near restrooms, not being required to remain at emergency scenes, and always having another ranger on call for him in case he needed to leave work early for medical reasons.” He had to leave work early about three times per month, and was unable to work at all about two to three times per month.

To support his claim, he submitted a private vocational assessment, which noted that his condition resulted in 10 to 15 bathroom breaks per day, lasting 20 minutes each, and that his current job was “tantamount to a ‘protected employment’ situation” because no typical employer would allow “a worker to take three and one third (3 1/3) hours per workday/work shift for bathroom break purposes.” The vocational expert determined that Mr. Cantrell’s need for bathroom breaks rendered him “totally unemployable for any competitive occupation.”

The Board denied TDIU, finding that Mr. Cantrell’s employment was substantially gainful. The Board discounted the private vocational expert’s opinion that his job was “in a protected environment,” because it found that the symptoms he reported to the vocational expert were inconsistent with his prior statements. The Board further found that Mr. Cantrell’s employment was not “in a protected environment” because he had “substantial responsibilities” and his employer’s accommodations enabled him to work full time.

On appeal to the Court, Mr. Cantrell argued that the Board provided an inadequate explanation for its determination that his job did not qualify as “in a protected environment.” He noted that VA did not define employment “in a protected environment,” but argued that “‘employment in a protected environment’ exists when a veteran ‘is only able to work because his employer protects him from termination.’” The Secretary argued that VA intentionally chose “not to define ‘employment in a protected environment,’ leaving it to the discretion of the factfinder on [a] case-by-case basis.” The appellant strongly objected to the Secretary’s position, arguing that “without an articulated standard for employment ‘in a protected environment,’ he cannot discern and the Court cannot determine whether the factors the Board considered in this case were appropriate.” The Court agreed with Mr. Cantrell.

The Court first discussed the relevant regulation, C.F.R. § 4.16, which provides that a veteran may be entitled to TDIU when his service-connected conditions render him unable to secure or follow substantially gainful employment. The regulation states that “marginal employment is not gainful employment,” and defines marginal employment as employment that either (1) results in earned annual income below the Census Bureau’s poverty threshold or, when a person’s income exceeds the poverty threshold, (2) on a facts-found basis, including “employment in a protected environment such as a family business or sheltered workshop.”

The Court determined that the meaning of “in a protected environment” is not clear from the plain language of the regulation, but declined to defer to the Secretary’s “we know it when we see it” definition that would essentially rely on hundreds of VA adjudicators to “uniformly and consistently apply that undefined term without guidance.” The Court stated that without a definition, “there is no standard against which VA adjudicators can assess the facts of a veteran’s case to determine whether he or she is employed in a protected environment.” The Court held that “absent an articulated standard for employment ‘in a protected environment’ that is capable of consistent application by VA and meaningful review by this Court, we cannot defer to the Secretary’s decision not to define that term in § 4.16(a).”

The Court discussed VA’s historical difficulties in implementing this regulation, adding that it “has little confidence that VA has or will be able to determine employment ‘in a protected environment’ in a consistent manner without further guidance from the Secretary.”

The Court stated that “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work might be appropriate facts to consider in determining whether a veteran is employed in a protected environment,” but VA’s failure to define this phrase made it impossible for the Court “to meaningfully assess the propriety of the Board’s reliance on the factors it cited in this case.” However, the Court declined to define the phrase, stating that it is VA’s responsibility to define its own regulation, and remanded this case back to the Board to provide an adequate statement of reasons or bases for its decision.

The Court also determined that the Board provided an inadequate explanation for its rejection of the private vocational expert’s opinion. The Board’s assessment of this opinion focused on the vocational expert’s estimate of the amount of time the veteran spent in the restroom each day. The Board determined that the veteran’s reports to the vocational expert were “inconsistent with the rest of the record” because the veteran never stated that “he spends nearly half of his work shift in the restroom.” The Court found, however, that the record contains no other evidence regarding the amount of time spent in the restroom each day – and “thus no statements that may be inconsistent” with the vocational expert’s opinion. The Court concluded that “the Board failed to identify a proper foundation in the record for its adverse credibility determination.”

The Court further determined that the Board erred by denying referral for consideration of entitlement to TDIU on an extraschedular basis. The Court reiterate that the extraschedular referral determination requires the Board to “consider the collective impact of multiple service-connected disabilities whenever that issue is expressly raised by the claimant or reasonably raised by the record,” and determined that the issue was reasonably raised, citing evidence that Mr. Cantrell “could not stand or walk without difficulty as a result of multiple service-connected disabilities.” The Court added that “the Board’s approach in this case improperly focused on individual symptoms, rather than the collective impact of those symptoms on the veteran’s disability picture.” The Court thus rejected the Board’s determination that referral for extraschedular consideration was not warranted because “the Board considered only whether Mr. Cantrell had symptoms not listed in the respective evaluation criteria for each service-connected disability and not whether those disabilities collectively caused an exceptional disability picture not contemplated by the rating schedule.”

Judge Lance wrote a concurring opinion, stating his belief that “a claimant’s income – and, specifically, whether a claimant receives the same pay as similarly situated coworkers who are not disabled – is also a factor relevant to whether the claimant is employed in a protected environment.” Judge Lance noted that disability ratings are based on “the average impairments in earning capacity.” Therefore, “[i]f a claimant’s disabilities do not result in lost income, then there is no loss of earning capacity, and an award of TDIU would not be appropriate.” The concurrence also noted that the Americans with Disabilities Act requires employers to make reasonable accommodations for employees with disabilities – and that where such accommodations are made pursuant to the ADA, “a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.”

While the language of this decision is quite useful for claimants who are employed “in a protected environment” and who are seeking entitlement to TDIU, the ultimate remedy in this case was simply a remand for the Board to provide an “adequate explanation” for its decision. I believe the facts of this case and the law should have been sufficient to warrant reversal.

FULL DECISION

TDIU, "MARGINAL EMPLOYMENT"

Ortiz-Valles v. McDonald, docket no. 14-2540 (May 20, 2016)

HELD: the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.”

SUMMARY: In determining whether a claimant is entitled to a total disability rating based on individual unemployability (TDIU), the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.” The regulation defines “marginal employment” as one example “of what is not substantially gainful employment.” Therefore, “when the facts of the case reasonably raise the issue of whether the veteran’s ability to work might be limited to marginal employment,” VA must address this issue and “explain why the evidence does not demonstrate that the veteran is incapable of more than marginal employment.”

FULL DECISION