Jon Heiden Discusses VA's Failure to Comply with Veterans Court Guidance Concerning Protected Work Places

Johnathan Heiden

Despite legitimate efforts from both veterans’ advocates and the Board of Veterans’ Appeals, the phrase “protected environment” in the context of a claim for total disability and individual unemployability (TDIU) remains undefined. Because VA adjudicators and veterans’ advocates have not yet provided a definition that can withstand review at the Veterans Court, action is needed from VA to provide a definition, or “at the very least, a list of factors that VA adjudicators should consider in making that determination.” Cantrell v. Shulkin, 28 Vet. App. 382 (2017).

In the context of a claim for TDIU, 38 C.F.R. § 4.16(a) allows a veteran to show that he or she can only obtain “marginal employment” if his or her disability would require a “protected environment.” The regulation does not define this phrase or provide a set of criteria that VA adjudicators must apply. The only guidance provided in the regulation for what this phrase means are the nonexclusive examples of “a family business or sheltered workshop.” This absence has inevitably led to confusion.

In the most recent precedential case considering this issue, Cantrell v. Shulkin, the Court remanded a Board decision denying a veteran’s claim that his employer’s accommodations for his disability constituted a protected work environment. As discussed in the summer of 2017 issue of the Veterans Law Journal, the Court rejected the Secretary’s argument that the phrase was intentionally vague to allow VA adjudicators to decide what constitutes a protected work environment on a case-by-case basis. The Court reasoned that this approach would lead to inconsistent application and inhibit meaningful review. Although the Court rejected the case-by-case approach, it did not provide a definition for the phrase, reasoning that “it is VA’s responsibility to define the terms contained within its regulations.”

Since the Cantrell Court rejected the case-by-case approach without supplying its own definition, VA has not provided any guidance as to what a veteran must demonstrate in order to prove that his or her disabilities either require, or their current job setting constitutes, a protected work environment. In fact, as of the date of this article, there are no rules in the federal register addressing 38 C.F.R. § 4.16(a)’s phrase “protected environment.” This vacuum has led to efforts by both veterans’ advocates and the Board to provide guidance and/or a definition. For good or ill, to date these efforts have been rejected by the Court.

Two notable efforts since the Court’s decision inCantrell occurred in Evans v. Wilkie and Builter v. Wilkie. 17-5015 (April 4, 2018); 18-3935 (September 26, 2019). Both of these unpublished decisions exhibit that, so far, alternative methods for both compelling VA to provide a definition or relying on analogous agency regulations will not resolve the problem of an absent definition.

First, in Evans v. Wilkie, the veteran filed a writ of mandamus to compel VA to provide a statement of the case defining what constitutes a protected environment. The veteran argued that VA’s failure to provide a definition for the phrase prohibited him from being able to successfully argue his appeal. The Court denied the writ in a non-precedential order explaining that VA’s failure to provide a definition did not foreclose other avenues by which the veteran could obtain relief—specifically by an appeal to the Board. In addition, the Court noted that counsel for the Secretary reached out to the “Policy and Regulations Chief for Compensation Service” to ask about the status of the rulemaking process to define the phrase. The response noted that VA was working to address Cantrell but explained that it is a lengthy process and “may take 18 or more months to publish a final rule.” In light of the alternative remedies available and VA’s duty to comply with the lengthy rulemaking process required by the Administrative Procedure Act, the Court denied the writ.

Next, in Builter v. Wilkie, a veteran appealed a Board decision that relied on both the Department of Labor’s definition and Social Security Administration (SSA) regulations explaining what constitutes a protected environment. http://www.dol.gov/whd/FOH/ch64/64k00.htm (last accessed Feb. 28, 2020); 20 C.F.R. § 404.1574(a)(3). In a lengthy decision, the Board recognized the Court’s decision in Cantrell and then relied on analogous rules from the Department of Labor and the SSA. Specifically, the Board reasoned that the Department of Labor and SSA regulations both suggest that a protected work environment must in some way relate to a charitable “institutional program,” such as a facility operating at a loss, or receiving charitable contributions or government aid. Relying on these policies and regulations from the Department of Labor and the SSA, the Board went on to deny the veteran’s claim that the accommodations his employer provided constituted a protected environment because “[t]here [was] no evidence that the purpose of the Veteran’s friend’s business [was] to provide employment to disabled workers.”

In a non-precedential memorandum decision, the Veterans Court rejected the Board’s attempt to define 4.16(a)’s phrase “protected environment.” Specifically, Judge Greenberg held that the Board’s definition was “inconsistent with the regulation” and thereby implicitly rejected the Board’s reliance on analogous agency definitions.

Cantrell, Evans, and Builter appear to suggest that only guidance from the Court, or ideally a new rule from VA, will solve the problem for both VA adjudicators and veterans’ advocates. Furthermore, when read together, it seems unclear how advocates or the Board can show that a veteran’s disabilities require a protected work environment without resorting to a factual case-by-case approach—that was explicitly rejected by the Court in Cantrell. This is supported by the fact that, to date, every Veterans Court decision available on Lexis and West Law (which postdates Cantrell) where a veteran has challenged the Board’s definition (or lack thereof) of a protected work environment, has resulted in a remand.

Ultimately, these cases show that despite legitimate efforts by both the Board and veterans’ advocates, it appears that the Court is still waiting for VA to answer the question of what constitutes a protected environment under 38 C.F.R. § 4.16(a).

This article was originally published in Volume 1 of the 2020 Veterans Law Journal on April 3, 2020. The Veterans Law Journal is published quarterly by the Court of Appeals for Veterans Claims Bar Association.

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