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Oral Arguments

Precedential Decision: Protected Work Environment, CCK Delivers Oral Argument at CAVC

December 4, 2018
Updated: October 28, 2019
Oral Argument

Summary of the Case

Mr. Cantrell 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 was initially granted service connection for post-surgery ulcerative colitis in December of 2011, and later awarded service connection for urge incontinency as secondary to that condition.  Subsequently, Mr. Cantrell appealed for an increased rating to include entitlement to TDIU.  However, the Board of Veterans’ Appeals denied his claim for TDIU.

Board denies TDIU

In August of 2015, the Board denied Mr. Cantrell’s claim for TDIU on the grounds that he did not work in a “protected work environment”.  As a result of his service-connected disabilities, Mr. Cantrell was required to use the bathroom frequently, often unexpectedly, and sometimes for an extended period of time.  His employer excused him from various tasks, allowing him to miss meetings, leave the scene of emergencies, and sometimes leave work early.  Still, the Board found that Mr. Cantrell’s job as a park ranger was substantially gainful, despite these accommodations provided by his employers.  Specifically, the Board determined that his job did not fall under the category of a “protected work environment” because it entailed significant responsibilities and the accommodations provided allowed him to perform his job successfully on a full-time basis.  However, the Board provided no standard for what it considered to be a “protected work environment” in denying TDIU.

CCK presents an oral argument at Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied Mr. Cantrell’s claim for TDIU.  In February of 2017, CCK delivered an oral argument before the Court in Washington, D.C.  CCK argued that the Board provided inadequate reasons and bases for its determination that Mr. Cantrell’s employment as a park ranger did not qualify as “in a protected work environment” for TDIU purposes.  CCK contended that the Board imposed too high a standard that is not supported by the regulations in finding that his job as a park ranger was not in a “protected work environment”.  Here, “protected work environment” should exist when a veteran is only able to work because his employer protects him from termination.  Ultimately, CCK held that without an articulated standard for employment in a “protected work environment”, the Court cannot determine whether the factors the Board considered in this case were appropriate.

Court agrees with CCK’s arguments

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.  The Court affirmed that without a definition or a set of factors, there was no standard against which VA adjudicators could assess the facts of a case to determine whether a veteran is employed in a “protected work environment”.  This could result in different outcomes for similarly situated veterans, giving the appearance of arbitrary and unequal decision-making.  The Court determined that remand was required for VA to either define the term or create a list of factors for adjudicators to use.

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