Arline: Protected Work Environment and Rejecting Vocational Experts

Arline v. McDonough, Case Number 18-0765, was decided July 1, 2021 and involves what is a protected work environment for the purposes of TDIU.

In Cantrell v. Shulkin, 28 Vet. App. 382 (2017) the Veterans Court grappled with the definition of the term “employment in a protected environment” and encouraged the VA to define the phrase through regulations.  However, as noted in this decision, that has never occurred.  Still, the Veterans Court found the Board did not clearly err in finding the veteran’s descriptions of workplace accommodations not credible and that he was no unemployable.  Id. at *1.

The veteran has a 50% mental health rating and the court did remand as to the issues of a higher rating, however, the veteran also sought TDIU.  The veteran was working but argued he was in a protected work environment.

The veteran worked at the U.S. Defense Logistics Agency (DLA) at the Defense Supply Center of Columbus (DSCC)—first as a janitor, then as a machine specialist, and finally as a parts expediter.  Id. at *3.  He eventually retired.  He explained his anxiety had become overwhelming and stated his employer told him he needed to retire or be terminated.  This was disputed by the employer.  Id. at *3.  After retirement, the veteran volunteered for approximately 20 hours per week at a local VA facility, he explained the lack of a set schedule or expectations made his volunteerism possible.

The Board denied TDIU because it concluded the veteran’s schizophrenia did not preclude substantially gainful employment and his employment was not marginal. The Board found the veteran’s employment did not qualify as "in a protected environment" given his employment history and found a vocational opinion less probative because it was based, in part, on the veteran’s non-credible statements.  Id. at *3-4.

TDIU is available despite work if the work is marginal employment, which is defined as earned income that does not exceed the poverty threshold for one person established by the Department of Commerce.  Id. at *5.  The Court then explained:

The regulation further provides that "[m]arginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold." Id. The issue here is the meaning of "employment in a protected environment" in § 4.16(a).

Id. at *4-5.  The Court noted the term in question was ambiguous and the Secretary had declined to define the term and wanted the fact finder to engage in a case by case analysis. 

The veteran argued the only competent evidence was from a vocational expert that said the veteran was engaged in a protected work environment.  However, the Court found the Board had a plausible basis for its credibility and employability determinations.  Id. at *9.  “Reading the decision as a whole, the Board determined that Mr. Arline's workplace accommodation descriptions were not credible because they lacked facial plausibility and were inconsistent with other independent evidence.”  Id. at *9.

The Court noted:

In denying TDIU, the Board weighed Mr. Arline's lay statements against his stable 37- year, full-time DLA career, during which he spent 23 years in the same position ordering parts for the U.S. Department of Defense (DOD); his "regular retirement" from that job; and the September 2015 VA examiner's assessment that he could complete simple repetitive tasks in an environment that did not require more than superficial social interactions because he had done so for decades at his DLA job and was now volunteering at a local VA facility.

Id. at *9.

The Court also rejected the argument that the Board substituted its own opinion for a vocational expert saying the veteran “does not explain how vocational expertise is equivalent to medical expertise so that the Court should extend the reasoning in Kahana to encompass vocational opinions. Vocational matters do not involve the same complex issues as medical matters.”  Id. at *13. 

Chief Judge Bartley wrote a powerful dissent.  She explained the veteran’s:

lay statements indicate that his schizophrenia worsened late in his long-term career with a federal agency, causing increasing occupational impairment that his employer, supervisor, and co-workers admirably attempted to accommodate. The Board essentially found this narrative facially implausible, reasoning that no employer would tolerate, and no employee would help, an underperforming disabled veteran as he ended the last stage of a long career. But to be facially implausible, testimony must be so unbelievable that no reasonable factfinder would credit it.

Id. at *22.

She argued:

To put it bluntly, the Board went out of its way to impeach the veteran's lay testimony rather than accepting his plausible description of his declining psychiatric state, the corresponding problems it caused with his employment, and the significant accommodations that he received from his employer. Contrary to the Board's finding, there is nothing facially implausible about Mr. Arline's coherent narrative, and the Board in support cites nothing other than its own unsupported view of how workplaces should operate.

Id. at *23.

As to the majority’s rejection of the vocational assessment, she argued:

Moreover, I disagree with the majority that Board members should be able to discount TDIU evidence based on their own abstract conceptions, without a foundation in the record, of what is "common" or "general" in a given work environment. Nor, without further explanation, should they be able to rely on written workplace policies that advance procedures counter to a veteran's description of their specific work environment. TDIU determinations must be made on the evidence of record, and although the majority states that credibility determinations may not be based solely on extrarecord evidence, the remainder of their discussion comes dangerously close to permitting Board members to do just that. Given the importance of employment questions in TDIU cases, I cannot join the majority in allowing Board members to gainsay favorable unemployability evidence based on unsupported beliefs and policies about how a particular workplace should operate.

She continued by saying she believes protected work environment is ambiguous and no deference is owed to the VA’s interpretation and then offered a list of non-exclusive factors to consider in a protected work environment situation:

The first group of factors focuses on the employee in the job itself. As Mr. Arline asserts, the type and extent of accommodations that a veteran receives from an employer may be relevant to determining whether employment is in a protected environment. Evidence that a veteran requires substantial accommodations to effectively perform duties suggests a protected environment; evidence of few or less extensive accommodations may weigh against such a finding. Similarly, the magnitude of job responsibilities may bear on that analysis, since some employment is by its very nature inconsistent with a finding of a protected employment.

 

The second group of factors relates to the employer. The Secretary is correct that employer behavior or intent toward the veteran and employer classification of the position may be relevant considerations. Employer behavior, for example, may indicate that the veteran is shielded from consequences of nonperformance or poor performance of job duties. So, too, an employer's benevolent intent in hiring and promoting a veteran may be relevant. But because there may be reasons other than benevolence for providing a protected environment, employer intent is not dispositive. In addition, evidence that the veteran works for an institutional employer who traditionally provides sheltered employment may indicate a protected environment. For example, an employer like a hospital, VA domiciliary, or long-term care institution, where the goal of employment is principally charitable or rehabilitative, is more likely to offer employment in a protected environment than other enterprises that are profit-motivated.

 

The third factor is economic. As noted above, although income above the poverty threshold is not determinative, high income may counter against a protected environment while income that only marginally exceeds the poverty threshold may indicate a protected environment.

Id. at *25-26.

The facts of this case at first might suggest TDIU is not appropriate, but fellow employees helping a troubled veteran whose work performance has slipped toward the end of his career seems exceedingly normal.  What is most troublesome is the Court’s allowance of the apparent rejection of the expert vocational opinion because vocational opinions are not as expert as a medical opinion.  At the same time, the VA moving target definition of a protected work environment is maddening.  I see this case as crying out to be appealed and hopefully resolved in favor of the veteran.

Decision by Judge Falvey and joined in by Judge Pietsch with dissent by Chief Judge Bartley.

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