Lay Testimony Essential for VA Unemployability Claims

Lay Testimony Essential for VA Unemployability Claims
Jonathan Heiden West & Dunn Attorney Jonathan Heiden, analyzes the recent decision by the Veterans Court in the case of Arline v. McDonough regarding unemployability claims and what constitutes a protected work environment.

The Veterans Court issued a recent decision in the case of Arline v. McDonough making it clear that veterans will need to provide lay testimony to support their claim for individual unemployability.

Decision in Arline v. McDonough

In Arline v. McDonough, the veteran filed a claim for individual unemployability. He argued that he qualified for this benefit because he was working in a “protected work environment.” The only explanation the VA has provided for what is a “protected work environment” are the examples of “a family business or sheltered workshop.”

Mr. Arline, who suffers from schizophrenia, argued that his work environment was protected because his boss and coworkers were aware of his condition, and would allow him to miss work, take naps, and help him with mistakes he made as a result of his mental health diagnosis.

The Veterans Court denied his claim despite the fact that Mr. Arline explained the types of help he received at work and filed an expert opinion finding that he worked in a protected environment. Without addressing whether Mr. Arline’s mental health impacted his accounts of the help he received at work, the Court found that his statements were not credible. Because the Court found his statements not credible, it upheld a previous decision from VA that his workplace was not a protected environment -- and therefore he was not entitled to additional benefits.

Supporting Statements from Co-workers and Employer

For veterans who are applying for unemployability benefits, the Arline decision makes it clear that statements from the veteran’s co-workers and/or employer will be essential to the success of the claim. For example, in Mr. Arline’s case, he relied on an expert opinion to support his claim that his workplace was protected, but did not submit statements from his co-workers or employer. The Court’s reasoning shows that supporting statements describing the ways an employer protected a veteran from losing his or her job are favored over that of a vocational expert.

Lastly, the Court again decided not to define what workplace conditions qualify as a “protected environment.” However, one Judge who disagreed with the decision provided a list of factors that may be useful in showing that a veteran is receiving special protections that prevent the loss of his or her job. These factors include, but are not limited to, the requirements of the veteran’s job, the protections given by the employer, the employer’s motivation in providing the protections, and the level of pay the veteran received for their work.

While unemployability claims may now be more difficult to win after the Arline decision, it is clear that supporting statements from a veteran’s co-workers and employer will be a strong way to show that a veteran is receiving special protections in the workplace.

If you have any questions about whether you may be entitled to additional VA compensation because you have received protections at your workplace, the Wisconsin veterans disability claims attorneys at West & Dunn stand ready to help. Please feel free to contact us online or by phone at (608) 490-9449.

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