CCK Successfully Argues for a Precedential Decision About Protected Work Environment
The Veteran served on active duty in the United States Army from January 1988 to September 1988, and then in the United States Air Force from May 2003 to August 2003. He is service-connected for post-surgery ulcerative colitis, urge incontinency secondary to his ulcerative colitis, degenerative joint disease of the left and right hip, hemorrhoids, erectile dysfunction, and pouchitis. After he was granted service connection for ulcerative colitis in April 2007, the Veteran appealed for an increased rating to include unemployability benefits. The Board of Veterans’ Appeals denied the Veteran entitlement to TDIU in August 2015.
Board Denied TDIU Due to Not Falling Under Category of “Protected Work Environment”
In August 2015, the Board denied the Veteran’s claim for TDIU because he did not work in a “protected work environment.” As a result of his service-connected disabilities, the Veteran had to use the bathroom 10 to 15 times per day, often unexpectedly and sometimes for an extended period of time. Evidence before the Board at the time of its denial of unemployability benefits showed that the Veteran had as many as 18 bowel movements a day and did not eat lunch at work out of fear of having an accident. He also reported having to wear absorbent pads and change his underwear 3 to 5 times per day.
The Veteran worked as a park ranger, and he told a VA examiner in April 2011 that the only reason he was able to do his work as a park ranger was because he mapped out where the bathrooms were on his routes. To accommodate the Veteran’s needs, his employer allowed him to miss meetings, leave the scene of emergencies, and sometimes take naps. Still, the Board denied the Veteran TDIU because he was working full-time, had a lot of job responsibilities, and was successful at his work. However, the Board provided no definition or set of factors that would explain what is or is not a “protected work environment” in determining eligibility for TDIU.
The Court Agrees with CCK’s Argument
CCK argued, and the Court agreed in a precedential decision, that the Board’s failure to define what was considered a “protected work environment” made it impossible for the Court to review the Board’s denial and thus required remand. In other words, without a definition of “protected work environment,” VA adjudicators could make decisions that would result in different outcomes for similarly situated veterans, giving the appearance of arbitrary and unequal decision-making. The Court found that since the regulation, 38 C.F.R. § 4.16, provides no standard for defining “protected environment,” remand was required for VA to either define the term or create a list of factors for adjudicators to use.
