28 Vet. App. 382
Vet. App.2017Background
- Veteran Eric C. Cantrell, service-connected for post-surgery ulcerative colitis and related conditions, worked full-time as a park ranger with numerous workplace accommodations and a combined disability rating ≥70% since Sept. 27, 2011.
- He claimed TDIU and referral for an extraschedular evaluation; the RO denied increased schedular ratings and TDIU; the Board denied referral for extraschedular evaluation and denied TDIU (finding his job not in a "protected environment").
- Medical and lay evidence documented frequent bowel movements, monthly pouchitis flare-ups, need for mapped restrooms, intermittent absences, and employer accommodations including shift changes and assignment near bathrooms.
- A vocational expert opined the position was effectively a protected environment because the veteran required extensive bathroom breaks (≈3 1/3 hours/day) and extraordinary employer accommodation.
- The Board discounted the vocational opinion as inconsistent with prior records and relied on the job’s responsibilities and the veteran’s ability to perform full-time with accommodations to find the job not protected; it also declined extraschedular referral, focusing on individual symptoms rather than their combined impact.
- The Court set aside the Board’s denials of (1) referral for extraschedular evaluation and (2) entitlement to TDIU, and remanded for readjudication, finding the Board’s reasons or bases inadequate on both issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA’s term “employment in a protected environment” in 38 C.F.R. § 4.16(a) is too undefined and the Board erred applying it | Cantrell: term means work where employer’s accommodations allow continued employment despite inability to meet normal job criteria; Board applied too demanding a standard and improperly rejected vocational opinion | Secretary: VA intentionally left the term undefined to permit case-by-case factfinding; defer to agency discretion | Court: Term is ambiguous but Secretary’s refusal to define it frustrates review; VA must articulate a definitional standard—remand for reconsideration |
| Whether the Board properly rejected the vocational expert’s credibility about time lost to bathroom breaks | Cantrell: vocational expert’s report was consistent and the Board lacked a record basis to find it inconsistent | Secretary: Board permissibly discounted the opinion as inconsistent with prior statements/records | Court: Board lacked a record foundation for its adverse credibility finding (no prior quantified time-in-restroom statements); reasons or bases inadequate—remand |
| Whether the Board adequately considered referral for extraschedular evaluation based on the combined effect of disabilities (Johnson issue) | Cantrell: evidence reasonably raised that colitis plus hip disabilities caused combined limitations (standing/walking) beyond schedular criteria, warranting extraschedular referral | Secretary: Record did not show combined impact producing an exceptional disability picture beyond schedular criteria | Court: The record reasonably raised the issue of collective impact; Board focused improperly on isolated symptoms; remand for extraschedular referral analysis consistent with Johnson/Thun framework |
| Whether the Court should define “protected environment” itself | Cantrell: asks Court to define the term | Secretary: asks deference to agency nondescription | Court: Declined to define; remanded to VA to define and apply a standard first |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own ambiguous regulation)
- Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (same principle of deference to agency construction)
- Brown v. Gardner, 513 U.S. 115 (1994) (plain meaning of statutory/regulatory language controls; if ambiguous, consider agency interpretation)
- Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) (interpretation starts with regulatory language and structure)
- Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) (administrative discretion must be bounded by demanding standards)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) (collective impact of multiple disabilities can warrant extraschedular consideration)