Precedential Decision: Protected Work Environment, CCK Delivers Oral Argument at CAVC
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.
Judge Lance: Good morning. My name is Judge Lance, to my right is Judge Schoelen, to my left is Judge Bartley, we’re here at the appointed time, date, and location for the hearing in the matter of Eric Cantrell versus David Shulkin, Secretary of Veterans Affairs, docket number 15-3439. Counsel, would you please each identify yourself for the record?
Barbara Cook: Barbara Cook, of the law firm Chisholm Chisholm and Kilpatrick on behalf of the appellant. With me on the counsel table is Christian McTarnaghan, also of the law firm.
Judge Lance: Welcome.
Omar Yousaf: Omar Yousaf, on behalf of the Secretary, and with me is Kenneth Walsh.
Judge Lance: Welcome. Counsel, are you ready to proceed?
Barbara: I am, your honor.
Judge Lance: Do you care to reserve any time for rebuttal?
Barbara: I would like to reserve–
Judge Lance: As you have the burden of proof?
Barbara: I would like to reserve ten minutes if I may, your honor.
Judge Lance: Ten minutes. Please make it so. Proceed.
Barbara: Thank you, and may it please the court. The Secretary has, in his own words purposely chosen not to define the term employment and protected work environment, that’s from page 12 of his supplemental pleading, that both parties in this court need a clear definition of the terms used for adjudicating cases because otherwise the adjudication is arbitrary. The appellant today is therefore asking that this court define the term protected work environment for the VA and for the appellant either by adopting the definition as first suggested by the Secretary of page 3 of his supplemental pleading, that marginal work and hence, protected work which is a subpart of marginal, means barely exceeding the minimum requirements of work, or by adopting the definition suggested by the appellant that protected work exists where the employer provides accommodations that allow the veteran to remain employed even though he is not meeting the normal i.e. essential functions, all of the essential functions of the job.
Judge Lance: Well, getting to your point which is you would like the court to write to regulations for the Secretary?
Barbara: I would– I’m not– I didn’t mean to interrupt you judge if you want pos–
Judge Lance: Well, I just–
Barbara: I’m not asking–
Judge Lance: I point out that we expect the Secretary to write to regulations and we will interpret them. How is that?
Barbara: I agree, and that’s what I’m asking the court to do is to interpret the regulation, the term in the regulation is protected environment– work in a protected environment. It does not have a definition and the Secretary has acknowledged it doesn’t have a definition, and the Secretary has said he’s not going to provide a definition. What it has is examples and this court, actually the Secretary has been encouraged since 1987 to have a definition, the GAO encouraged the Secretary to do so in 1987, this court has encouraged the Secretary to define the terms in that regulation since 1990, I believe. Again, as recently as last year in Ortiz-Valles, but the Secretary has not defined the term. So, it’s not a matter of writing the regulation, the regulation is fine as it stands. It’s a matter of defining the terms just as the court did in Faust, it defined the terms substantial gainful employment in terms of the monetary task used for determining whether something is or is not substantial employment.
Judge Bartley: And in Faust, I believe the court found that because the veteran made over the poverty threshold, his employment was not marginal but was indeed substantially gainful. So, given that you just said that a protected environment is kind of a subcategory of marginal employment, would the veteran’s income here play a part in this whole determination?
Barbara: No, I don’t think it does Judge, because the income is a separate test, the income is– if your income is below the poverty level then by that definition you can meet the test of substantially of not being involved in substantially gainful occupation if the reason for that is your service-connected disability. But this is an alternative method, protected work environment is an alternative method to find that the person is entitled to a 100% rating under TDIU, and what it looks at is the circumstances in which an individual is earning more than the poverty level —
Judge Bartley: Well, how much was the veteran making, let’s say during the years– he just retired right, in February?
Barbara: Yes, he did just retire. Correct.
Judge Bartley: Okay, and so we’re talking about from the years 2006 on?
Barbara: Yes, from 2006, he filed his claim in, 2006.
Judge Bartley: So, what was his range of income?
Judge Lance: Judge Bartley, I believe I may have the answer it was $32,950 dollars a year.
Barbara: Okay. Thank you, Judge Lance. I was going to– I was estimating around 30 but yes. So, but the reason he was able to bring that income in, is because of the very significant accommodations that the employer was making. He was excused from performing the essential functions of his job. He was permitted to leave the scenes of emergency work, he was permitted to leave unexpectedly during the day, he was permitted to take excessive breaks, take naps at will.
Judge Bartley: So, you’re arguing that accommodations alone, the Secretary hasn’t, at least in your view, provided any kind of guidance as to what a protected environment would be. But is your argument that the accommodations alone, regardless of income could meet the protected environment in thus the marginal employment requirement?
Barbara: If accommodations are significant, if the accommodations are unreasonable to contrast it with the reasonable accommodations required under the Americans with Disability Act, then yes.
Judge Bartley: So, I’m just– this gives me pause, quite a bit of pause really. This kind of open, very open suggested definition. What if like, okay, family business is one of the types of protected environments that’s listed. What if Mark Zuckerberg pays his brother, who’s a veteran, who’s disabled, a hundred thousand a year to do something in the family business? So, he’s making a hundred thousand but he is disabled and perhaps could not work because of a service-connected disability, should he just because of the accommodations allowed him, by the employer i.e. family, would he, without consideration of income, be eligible under this provision?
Barbara: Yes, because what it says is essentially that in the circumstance you’re talking about, the hundred thousand dollars is essentially a gift that he’s not performing the essential functions of the job that he’s hired for, then he’s not– and the reason he cannot perform those essential functions is because of his service-connected disability, then he otherwise would not be able to work and I can appreciate the concern. I don’t think it’s going to happen very often that someone is making a hundred thousand dollars but-
Judge Bartley: Or even 50–
Barbara: Or even fifty but–
Judge Bartley: –when people would get TDIU are going to get, is it around 30 thousand, 35 thousand a year now?
Barbara: It’s about thirty– that’s correct.
Judge Bartley: And so, you’re asking us to allow this account trial to receive for these years, from 2006 to current time, 35,000 or whatever it was in 2006 and–
Judge Schoelen: If I can interject, is it really 35,000 or is it the differential between what his service-connected disability entitled him to and the 100% rating for TDIU?
Judge Bartley: Yes. Well–
Judge Schoelen: I don’t know what that is, but–
Judge Lance: I believe that’s a question for you.
Barbara: Thank you, Judge. Within the compensation provisions, my understanding is that income is not balanced against it. But what the question– underlying question – I think attacks the regulation itself, and the regulation is a good regulation. The Secretary should be proud of this regulation because what it does is that, it allows veterans who otherwise could not work, it allows them to actually work, to have the dignity of work. It rewards them for that, it turns them into tax-paying citizens. It allows employers to hire veterans as this employer did, even though the employer had to make significant, huge accommodations for the veteran, and so that’s a good thing. And that is what the regulation says, it provides for that situation and the two examples in the regulation, sheltered work and family work share– the criteria they share in terms of what makes them examples of protected work are that in those situations, the person’s deficiencies in terms of reliability and productivity are forgiven. And as I say, that is something the VA should– we should be applauding the VA for taking that step, and that is a long standing role that they have had and it makes sense to allow for that.
Judge Bartley: So, your argument is accommodations alone, the extent of the accommodations.
Barbara: Significant accommodations, which I think are not– I don’t imagine that they’re that common. We don’t know. They certainly existed in this case-
Judge Lance: Counselor, your client was making $32,950 a year.
Judge Lance: Fulltime employment, receiving the same compensation I assume, that his fellow workers were, right? Also receiving between 60 and 80% of disability rating, right?
Judge Lance: All right. So, at what point do we cross the Rubicon upon just enrichment? When does this kick in?
Barbara: Well, I think that would be up to the Secretary to define in the regulation, but under the current regulation, it does not because the definition of protected work, a proper definition of protected work environment, acknowledges that this person would not be doing this other than the significant accommodations. And I would just point out that in terms of him working fulltime, his work was being forgiven, he was not attending meetings, he was not on task.
Judge Lance: I’m familiar with the record.
Barbara: For more than an hour a day. So, it is what is envisioned by the regulation, if the court –
Judge Schoelen: If we were to– I’m Sorry. If we were to accept your assessment of how protected work environment should be defined, that significant accommodation would be necessary, would an expert opinion be necessary for VA to determine what is a significant accommodation versus a not so significant accommodation?
Barbara: I don’t think necessarily would be, there’s one in this case, but I think that had the Board had a proper definition here, it could have recognized even without the expert that this was a significant accommodation based on the evidence from the supervisor, who said that, “If I didn’t provide these accommodations, I would have fired him.” And if I could make one more comment about in terms of the meaning of the regulation, one of the things that the regulation does is to recognize that the vocational impact from– certainly from a combination of disabilities is not always going to be reflected in the actual rating because of the way VA does their ratings. VA doesn’t add the percentages together as we know, it combines them and so in Mr. Cantrell’s case, if you add his disabilities together, he’s at a 140%. But he doesn’t get a 140%, he gets 90% because of this combined effect where the VA says, “Well, I want you get a 50%,” then the subsequent disabilities have– in VA belief have no impact on the rest of your life. But in fact, there is a collective impact and that’s what 4.16 helps —
Judge Lance: Well, isn’t the disability rating predicated upon laws for incapacity?
Barbara: It is, but–
Judge Lance: Okay, so. Okay, your client making a fulltime wage on a fulltime job plus he’s been previously adjudicated between 60 and 80%, right? For loss of earning incapacities. Correct? All right. And now, through the TDIU mechanism we’re talking about kicking that up to a 100%, right?
Barbara: Yes, because that is what the law says.
Judge Lance: Plus, his wages which are a fulltime wage?
Barbara: Yes, but that is what the rule requires. You will express the concern that the–
Judge Lance: Well, that is your interpretation right?
Barbara: Well, it’s also this court’s interpretation Ortiz-Valles, the court said that the fact that a person is working does not preclude him from getting a TDIU under protective work environment. What do those phrases mean? What does facts-found such as family and sheltered mean? Other than the fact that there is some way of providing that an individual who’s working, even fulltime is nonetheless possibly eligible for receiving a full 100% disability rating. Imagine–
Judge Bartley: Do we need to reach a definition of marginal employment to decide this case? And I know that you, I forget who suggested it first, perhaps it was the Secretary but in your reply or in your response to our order, you quote a definition that I believe that was provided by the Secretary that marginal employment defined as close to the lower limit of qualification acceptability or function and barely exceeding the minimum requirements. Can you explain what that means? Like when I read that close to the lower limit of qualification acceptability or function, I’m confused as to whether if it’s the job itself is marginal or the type of work required is marginal or the veteran’s ability to perform the work is marginal or the pay is marginal? What are you going with here?
Barbara: Well, I saw the Secretary’s definition as a point on the spectrum that we had suggested a definition of basically someone who’s working only because they are getting unreasonable, excessive of accommodations, those that are not required by law at one into the spectrum. In the middle would be Social Security’s view which is that even a person who is getting a reasonable accommodation can work and still collect social security disability benefits and at the other end is the Secretary’s definition of marginal, which doesn’t take accommodations into account at all, it just says that you– I saw it as the person is performing the job but barely. So, under any of these definitions the veteran, Mr. Cantrell, qualifies. I think that there can be no question, but that if his brother had hired him and provided these accommodations, he would– the Board probably would have said, “Right, it’s a family situation, you’re in a protected work environment,” but because he wasn’t hired by his brother, he was hired by the State of Tennessee or a county that he– that then somehow it was different but it’s not. The criteria are the same and what ultimately needs to happen is for there to be a definition. This entire discussion depends on what the proper definition is. Because if the definition requires income or doesn’t require income, that’s part of the definition. But the Board didn’t have a definition.
Judge Schoelen: Why do you accept the proposition that the accommodation has to be unreasonable, like why does the ADA play a role in the TDIU determination in your view?
Barbara: Because I think that the ADA says that the– anticipates rather that the accommodations that are provided are very minor. They do not, by definition affect the essential functions of the job. They tend to be things like, if a job requires– typically requires that the person stand but it could be done by sitting, then the employer has to provide a chair and allow the individual to sit while they’re doing the job, but it doesn’t, and so I–
Judge Schoelen: Because you think the accommodations that are reasonable are minor, that’s your–
Barbara: Yes, yes.
Judge Schoelen: I believe that you stated earlier that Social Security does not consider whether accommodations are made, it’s whether the person can do the job or not do the job.
Barbara: That’s my understanding.
Judge Schoelen: So that would be a more liberal standard than what you are proposing.
Judge Schoelen: And, okay.
Barbara: I would say that it was just- I mean, our definition is that at a minimum it requires that but that’s the reason is that, it just seems like I say, at a minimum, it should be that. But the Secretary has proposed that marginal be broader than that and we are certainly content to have a very broad definition as well.
Judge Bartley: And do we—
Judge Lance: But in terms– excuse me. In terms on this case, your client applied for social security disability in 2006, did he not?
Barbara: I believe that’s correct, Judge.
Judge Lance: And he was denied then by the Social Security Administration.
Barbara: He was denied then.
Judge Lance: Okay, just for purposes of clarification. Judge Bartley?
Judge Bartley: So earlier, I had asked, do we need to reach a definition of marginal to decide this case, or do we just need to focus on what is protected employment?
Barbara: I think you simply have to decide. The basics is that you would have to decide, or we’re asking that you decide, a definition of protected work environment and not necessarily define marginal.
Judge Lance: Okay. Counsel, you have 30 minutes to think about that a little bit. Counsel from the Secretary, please.
Omar: Good morning, may it please the court. The Secretary respectfully submits that the court should affirm the Board’s determination that the appellant is not entitled TDIU for two reasons. First, the Board denied TDIU in a manner consistent with the plain meaning of 4.16. Second, the specific facts of the appellant’s case show that the nature of his job as a park ranger, does not qualify as marginal or protected. As to the first point, the Board’s decision is consistent with the plain meaning of the regulation and that should control here. While the regulation provides that marginal employment generally exists when a veteran’s annual income does not exceed the established poverty level, it also allows for the possibility that it may exist in exceptional situations when a veteran’s annual income does exceed that level. Despite appellant’s arguments on the contrary, the Secretary has chosen a subjective standard that is ascertainable and flexible. So as to sufficiently account for the specific fact of such extraordinary cases, as reflected in the regulatory history, as provided in the pleadings, and the plain language of the regulation, the Secretary has chosen to empower its adjudicators to make the factual determination in these exceptional cases. That language must control.
Judge Schoelen: I actually don’t necessarily see that in the regulatory history, when I look at the promulgation and the final rule. They talked about, “Oh, it was unclear what was meant by marginal employment in situations that exceed the earning the poverty threshold,” so VA said, “Yes. We agree.” So, we’re going to give examples. To me, that’s VA’s intent to provide something more specific, not to just say, you’ll know it when you see it, which is what the problem was highlighted in the GAO report and the inequality or different standards that were applied prior to the change in the regulation. So, did VA really mean to give to total subjectivity to its adjudicators?
Omar: Your honor, the Secretary, when it revised the regulation, it did intend to apply that subjective standard. The intent was done to propose a common definition of marginal employment, and the examples provide a framework that the adjudicators can look to.
Judge Schoelen: Can you point to me somewhere where it says we intended to give flexibility and subjectivity to the adjudicators in the regulatory history, specifically?
Omar: Just a second.
Judge Schoelen: Yes.
Omar: Your honor, we would note three specific examples that would go to that point. The authority is not unfettered. But we would submit that the examples provide the standard that they should look to. In the first instance, the examples that are provided, again, those provide a framework and those are the extent of the authority that the agency has. It cannot exceed that authority.
Judge Schoelen: Although it says such as.
Omar: Correct. So, the list is non-exhaustive.
Judge Schoelen: So, they can exceed those two things.
Omar: Well, there’s a common thread that exists between these examples. Essentially, somebody is employing a person who may have a disability and they’re allowing them to work in that environment while the employer is incurring some type of loss, whether it is a family business where the person may not be employable but for working for family or whether it’s a sheltered workshop in a charitable organization of some type. The marginal employment is– the term is essentially an umbrella term under which protected environment is but one example. There are other potential examples but those are to be determined by the adjudicators individually in a case. The examples of a family business or a sheltered workshop are then attached to the definition of, or the example of, a protected work environment. So, there are three different tiers here that the agency has elaborated or indicated in the regulatory history.
The agency has also noted in the Federal Register that when they were amending the right, one of the commentators suggested that VA adopt the definition that was proposed in 4.17. But the agency disagreed that the proposed rule would require veterans to seek employment near the poverty level and the exceptional situation that I noted when the veteran’s income exceeds the poverty level supports that because it allows for veterans to seek employment that is not limited to just the poverty level. So, the Federal Register, we believe, is representative of the agency’s position that marginal employment is to be determined on facts found basis individually by the adjudicators and the examples provide the framework for them to look to.
Judge Lance: Counselor, following on to Judge Schoelen’s question. How is this court supposed to review this? We’ll know that when we see it and we’ll let you know the standard that you indicate that the secretary is adopted.
Omar: Your honor, the court– this is similar to other factual findings that the agency is empowered to make such as weighing the evidence or assessing the credibility of lay evidence. The agency’s adjudicators make those findings and then those findings are subject to judicial review under the clearly erroneous standard.
Judge Lance: And that gets us into the facts of the case versus the law of the case, right?
Omar: Yes, your honor.
Judge Lance: Okay. So, at that point in time, we’re just kind of out there freelancing so to speak and applying what we think are the best practices and the best approach to that particular occasion in an equitable manner, is that it?
Omar: Your honor, the agency would– the adjudicators would consider the facts of the case in total. I know my colleague had suggested that the regulation does not consider accommodations but this is untrue. The Secretary submits that the regulation states that consideration can be given and all claims to the nature of the employment. And the nature of the employment includes the accommodations that the veteran may receive at his or her job. So, the standard is very flexible and it is subjective, and it is then subject to review on appeal.
Judge Lance: Again, following on Judge Schoelen’s question. The GAO, I believe in ’96, suggested that the Secretary take a look at putting this into some sort of a standard that could be evaluated and reviewed?
Omar: Yes, your honor.
Judge Lance: Would you agree that no action was taken after that recommendation?
Omar: Respectfully, your honor, we would disagree. We think that the agency did take action and the extent of the action is reflected in the examples that were listed. The Secretary intended for those examples to– basically, that was the Secretary’s response to the GAO report.
Judge Lance: Should the Secretary have occasion to revisit that, you might consider using numbers, dollars and cents versus abstract terms which are more difficult for the court to be able to review in a meaningful manner.
Judge Bartley: The Board found that his employment wasn’t protected in part because the accommodations he received allowed him to perform his job successfully. Isn’t the point of working in a protected environment to allow the person to perform duties?
Omar: Yes, your honor, but the protected work environment contemplates a situation where the veteran would not be able to work in a competitive field like he’s working here. He is employed by the state park in the county where he lives and as the Board noted, he has extensive job responsibilities which include patrolling the park, looking for rule violators and appellant’s counsel suggested that he is unable to perform the essential duties of his job. But his employer actually noted that he has essentially the same duties but for registering campers that he had —
Judge Schoelen: And he can’t do emergency scene, matters.
Omar: Correct, your honor.
Judge Schoelen: And he has to leave frequently so other people have to do his duties.
Omar: Correct, your honor. But we do not believe that that would take him into the realm of a protected environment.
Judge Schoelen: So, you’re saying somebody who has a decent job with any level of responsibility is ineligible for TDIU from VA.
Omar: No, your honor.
Judge Schoelen: So, a lawyer for example who worked one day a week and had other lawyers backing them up, clearly making more than the poverty threshold would be ineligible for TDIU because that’s a competitive job.
Omar: No, your honor. That would depend on the facts of that specific case.
Judge Schoelen: I don’t understand how a competitive work environment makes a difference if the level of accommodations that that particular employer is willing to take, are so significant that the person could not do the job without those kinds of accommodations.
Omar: Your honor, it may not necessarily be different from a protected environment where somebody is working in a family business. But that is specific to that specific instance. It does not translate out into a general setting because the agency has determined that determination in these exceptional situations cannot be construed in a more objective fashion.
Judge Schoelen: We’ll continue. I’d like to ask some questions about the Board’s invocation of the ADA and reasonable accommodations. What is the Board’s authority for looking at the ADA?
Omar: Your honor, the ADA is not binding here but the Board can– the agency has empowered its adjudicators to consider what other agencies have found and they weigh that. They consider it and see if it’s applicable to this specific case.
Judge Schoelen: Didn’t this court in Beatty, say that the VA couldn’t look at Social Security determinations to deny a veteran benefits because it was sort of selectively using them? It hadn’t employed Social Security to be helpful for veterans so it couldn’t employ Social Security to be hurtful to veterans. I can give you the citation. It is 6 Vet.App. 532. It’s a 1994 case. The court found no statutory regulatory authority for the determinate application of SSA regulations to the adjudication of VA claims and stated that the Board may not in certain cases choose to apply SSA regulations that were never been adopted by the Secretary as applicable to VA adjudication. So, I’m unclear how the Board can look to outside be it Department of Labor, Social Security, Americans with Disability Act Authority to guide its determinations.
Omar: Your Honor, our position is that the Board cannot look only to what other agencies have determined because the Board cannot per se deny a veteran’s claim as in contrast to the Social Security framework. The VA is not an all or nothing system. VA allows for incremental disabilities whereas in Social Security, a person is–
Judge Schoelen: In Beatty VA was citing Social Security to deny a veteran as opposed to– but anyway, I appreciate what you’re saying. But I think the basis of that and also the Supreme Court Case in Cleveland, talking about how Social Security and ADA interact, part of that was that the Social Security administrative law judges don’t have expertise in determining, what is a reasonable accommodation. How does the Board of Veterans Appeals or regional office employee have authority to determine what’s a reasonable accommodation?
Omar: Your honor, they would consider it as a part of the case as a factual inquiry to make.
Judge Schoelen: So, could a veteran then challenge that, no, the accommodation is unreasonable and that that somehow makes a difference?
Omar: Your honor, it could conceivably make a difference to the nature of the employment. So, the accommodation can render the employment — it may render the employment, protected or not based on the overall picture, that would be based on the overall disability picture that the veteran experiences based on his employment. But in and of itself, the sector submits that the accommodations are not as positive.
The appellant’s counsel has suggested or pointed out that the Secretary noted certain definitions in the supplemental pleadings and ask the court to adopt those definitions. But the Secretary submits that he has not actually done so. Those were examples that the secretary was providing the court to show that these examples and the definitions that the appellants counsel submits are not necessarily more workable than what is already provided. He has essentially created an abstract point in a continuum. And basically, disagrees with the current standard that’s espoused in the regulation.
Judge Bartley: I just wanted to point out or get your thoughts on one of your manual provisions in part 4, subpart 2, chapter 2 Section F. There is a discussion about TDIU and determining it in a tightly held corporation or a closely held corporation or i.e. family business. This provision says the following, “Do not make a finding of marginal employment solely on the basis of low wages.” To me, that means that wages are a factor in the marginal employment context. It also says, “Keep in mind that the issue for consideration is whether the frequency and type of service performed by the veteran would equate to substantially gainful employment.” So, that seems to bring in to other factors, frequency of service performed and type of service performed. And so, I was confused in reading your materials about why– I understand that the reg itself doesn’t– it has examples but it doesn’t have a lot of guidance about what you were calling before common threads in the examples. I mean, I was left to kind of guess, what are the common threads between a sheltered workshop and a family business? But I mean reading this manual provision, it seems like these are the factors that the manual recommends be reviewed. So, do you think that this is not important? Why didn’t you use this? I mean, what’s the relevance of this provision in this discussion?
Omar: Your honor, may I read to —
Judge Bartley: Oh, sure.
Omar: Your honor, the M21 is essentially those provisions are to make sure that the first line raters who look at a case do not discard the claim solely based on income. The income the Secretary submits is relevant to a determination. In the first instance, when it does not exceed the poverty level and the veteran is considered to be unemployable, he’s determined to be unemployable. It is dispositive of that case. And the second exceptional situation as we have here, VA considered that the income may be relevant. It becomes essentially another factor and that provision in the regulation allows for veterans to earn unemployment benefits even if their income exceeds the poverty level. So, the factors that —
Judge Bartley: Right, I get. But just because some– because you can get TDIU if your income exceeds the poverty threshold, it doesn’t mean that it’s not a factor. You already just said, it can be a factor.
Omar: Yes, your honor.
Judge Bartley: I guess is what you’re saying.
Judge Bartley: Yes. I mean you’re being really– it’s very amorphous. It was kind of surprising in your pleadings that– it was kind of like you seem proud that it was amorphous. And understand that that makes it very difficult for us whenever we’re trying to decide like, was this the right decision as to Mr. Cantrell or the wrong decision. It’s like I don’t know, how do you hold on to anything? It’s like trying to hold on to air.
Omar: Yes, your honor. I understand. But we would submit that the examples are, again, they reflect that common thread. And they reflect that– there has to be some– there has to be this common thread that runs through these cases and the examples are emblematic of that.
Judge Schoelen: And the common thread, you said earlier is that the employer is incurring some kind of loss.
Omar: It is suggestive of that. Yes, your honor.
Judge Schoelen: So, what kind of loss would be an example that would be a winning kind of loss for the veteran?
Omar: Well, your honor, if somebody employs a member of their family who would not otherwise be able to work in a different setting in for example, as a park ranger, that person may or may not be able to perform the duties that another person would in that specific job. But his family member is allowing him to work. And that person is incurring a loss because he may not be experiencing or gaining as much profit as somebody else would by allowing somebody else to work there.
Judge Schoelen: So, applying that logic to Mr. Cantrell’s case, his boss talked about how he had to pay overtime for people to cover him. Then Mr. Cantrell used a lot of leave because of his illness and there are duties that he couldn’t fulfill because the types of work that he couldn’t do and only types of assignments that he would use. He would drive around in a truck. He would be in areas where there were bathrooms. So, why is that not the same as I hired my cousin who can’t do everything and I’m having to incur an economic loss in addition to a productivity loss because I have to pay this guy overtime to cover for my cousin who can’t be there all the time.
Omar: Your honor, because the record does not reflect that his employment is sheltered or family in any way and he is able to work and he is compensated for his current level of impairment.
Judge Schoelen: Right. But what if I paid my cousin the same amount that I pay– Mr. Lance who also works for me but works full time?
Omar: Right. But yes, the question then becomes whether that specific person in this example your cousin, would be able to engage in employment, what their capacity level is.
Judge Schoelen: Doesn’t Mr. Cantrell’s supervisor say that but for these accommodations I would not be able to keep him on?
Omar: Your honor, he did state that but that does not mean that he would not be able to find other employment. His applications for TDIU–
Judge Schoelen: Did the Board make that determination or did they just make the determination that this job was not protected?
Omar: Your honor, all TDIU applications are concerned with the capacity to earn, not necessarily this specific job.
Judge Schoelen: But– well, anyway, I’ll check myself. Go ahead, Judge Bartley, please.
Judge Bartley: Yes. I’m a little confused about the several mentions here by some of my fellow judges and by counsel, about the number of hours worked. Because in Faust, we held that a substantially gainful occupation is one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to his prior income prior to having been awarded TDIU. So, I mean, are hours worked and missing work, what’s the– I mean, is that a factor to be considered in this assessment?
Omar: Yes, your honor, it is. We think that he’s demonstrated. In fact, he has indicated himself that he’s able to work 40 hours a week. His application said that he only missed two to three days of work.
Judge Bartley: So, it’s a factor and it was considered and end of story.
Omar: Yes, your honor. That was a factor that was considered here. Your honor, if I may, just very briefly as to the extraschedular argument just state that the only relationship that the record shows that exists between the disabilities is etiological and that would be wholly irrelevant to a question or a determination of extraschedular because it does not show anything exceptional or unusual. And if there are no further questions, the Secretary respectfully asks the court to affirm the Board’s decision.
Judge Lance: Well, salary and the actual monetary compensation would be a fairly easy measurement, would it not?
Omar: Yes, your honor.
Judge Lance: And it can be verified with tax returns.
Omar: Yes, your honor.
Judge Lance: We wouldn’t have to dig into the familial relationship of the employer or the employee and whether or not it was a reasonable accommodation or not a reasonable accommodation it’s just a dollar and a cent application?
Omar: Yes, your honor.
Judge Lance: Has the Secretary ever considered that?
Omar: Your honor, the Secretary is continuously revising the regulation as he determines–
Judge Lance: He’s never called and asked you that question?
Omar: No, your honor. He has not.
Judge Bartley: What would your answer be then?
Judge Lance: Well, I just find it kind of, in never-never land when we say we’re doing this on the facts found basis and we think that the facts support this. But we don’t have anything to anchor it to in terms of firm, hard regulations or empirical data or evidence. So, I’m just passing an observation on.
Omar: Yes, you honor.
Judge Lance: Good. Good. Thank you very much. Counselor, you have 10 whole minutes.
Barbara: Thank you. The Secretary has today proposed a new definition, one that was not in his pleadings that the regulation means, that protect the work environment means that one is incurring a loss, an employer’s incurring a loss. That’s not the definition the Board used. So, at the very least, it means this case should go back under that definition. I’m not sure that sheltered employment fits that definition. I’m not sure that sheltered workshop employers suffer a loss simply because they’re non-profit.
But the facts here show that the employer was incurring a loss as you pointed out, Judge Schoelen, he was paying people overtime, that he wouldn’t have otherwise had to pay. And he was paying Mr. Cantrell a full-time salary for what was essentially part-time work. He was not working 40 hours a week. He was taking significant bathroom breaks. He was not available the entire time. He was off task for a significant part of the time. And when you asked him about that, Judge Schoelen, the Secretary said, “Well, but that doesn’t– that’s not the same thing as incurring a loss because he’s not in protected work environment.” In other words, it’s circular. I understand and certainly agree that adjudicators should decide cases based on the facts. But without a standard, then any adjudicator can grant any claim. A rogue adjudicator can grant TDIU benefits under protected work environment to every one of his friends. He can just teach them how to submit affidavits and grant them based on facts found. But facts found is simply not a standard. And the issue isn’t whether the veteran can work. The issue is whether– and it’s not whether he can work successfully or work full time. The issue is whether he does that because he is in a protected work environment, because there are significant accommodations and we cannot decide that. This court cannot decide that. The adjudicators cannot decide that unless there is a definition. And so, for that reason, we ask that the court set aside the Board decision and either define the term under one of the definitions proposed or remand for adjudication under a clear definition of the term protected work environment.
Judge Lance: Thank you.
Barbara: Thank you.
Judge Lance: I think as the parties are aware, there was a late filing requesting that we consider a couple of cases, that motion is pending and we will deal with it as part of this decision. The matter is now under advisement and we’ll greet counsel at this time. Thank you.
Bailiff: All rise.
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