CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied the Veteran unemployability benefits, or TDIU, because he did not work in “protected work environment.” As a result of his service-connected disabilities, the Veteran had to use the bathroom 10-15 times per day, often unexpectedly and sometimes for an extended period of time. 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 TDIU.
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 environment,” VA adjudicators could make decisions that 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 the VA to either define the term or create a list of factors for adjudicators to use.
To read the Court’s precedential decision, click here.