Cantrell: TDIU and the “Protected Environment”

Cantrellv. Shulkin, Case Number 15-3439, decided April 17, 2017 considers whether the term “protected environment” in the TDIU context.

The veteran worked as a park ranger, but had significant bilateral hip pain and gastrointestinal issues.  He sought an award of TDIU stating he worked in a protected environment in light of the substantial and numerous accommodations provided by the employer.  and was denied by the Board which found he did not work in a “protected environment.”  The veteran appealed.

During the case, the Court specifically ordered the VA to provide its definition of a protected environment and was told that "VA has purposely chosen not to prescribe a

precise definition of 'protected environment,' allowing the factfinder to make the determination on a case-by-case basis."  Id. at *10.

The Court did not take well to the VA’s position stating “VA's failure to define employment "in a protected environment" or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue because the Court is unable to meaningfully assess the propriety of the Board's reliance on the factors it cited in this case. The Court simply cannot sanction a statement of reasons or bases that amounts to finding that Mr. Cantrell was not employed in a protected environment  "because I say so." Accordingly, the Court concludes that the Board provided inadequate reasons or bases for denying entitlement to TDIU, necessitating remand.”  Id. at *11-12 (internal citations omitted).

The Court found the term “protected environment” was ambiguous, but declined to define the term at this time instead remanding giving the VA an opportunity to first define the term.

Judge Lance concurred but focused on stating the veteran’s income should impact the calculation (i.e., “whether the 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”).  He also noted the impact of the ADA and that employers must provide reasonable accommodations and that where an employer must do so payment of TDIU could constitute a “second paycheck on the back of the taxpayer.”

environment.

The decision exposes what has long been recognized as a glaring failure by the VA to really define protected work environments.  However, I fear it will only result in an adoption of a definition by the VA that is anything but veteran friendly.

Decision by Judge Bartley, joined in by Judge Schoelen with a concurring opinion by Judge Lance.