Cantrell v. ShulkinCantrell v. Shulkin
Lead Opinion
Vеteran Eric C. Cantrell appeals through counsel an August 13, 2015, Board of Veterans’ Appeals (Board) decision denying (1) referral for consideration of an extraschedular evaluation for service-connected ulcerative colitis with resection, status post laparoscopic and open total proctocolectomy with j-pouch ileoanal anastomosis, pouchitis, and diverting ileos-tomy
I. FACTS
Mr. Cantrell served on active duty in the U.S. Army from January 1988 to September 1988 and in the U.S. Air Force from May 2003 to August 2003. R. at 1319, 1347.
The current appeal stems from a September 2006 claim for service connection
The record of proceedings contains extensive evidence regarding Mr. Cantrell’s service-connected disabilities. In October 2008, a private physician sent VA a letter indicating that the veteran had loose stools and abdominal discomfort that made it difficult for him to stand or be away from a bathroom for prolonged periods of time, R. at 1245; a September 2009 treatment note from the same physiciаn reflects the veteran’s report of having up to 10 bowel movements per day, R. at 1248. At an April 2010 VA examination, Mr. Cantrell reported 6 to 10 bowel movements per day, with occasional episodes of pouchitis. R. at 1123. He reiterated those symptoms in an August 2010 statement in support of claim (SSC), and added that, during pouchitis episodes, he had 12 to 18 bowel movements per day, needed to wear absorbent pads, had to change his underwear 3 to 5 times per day, and could not eat lunch at work for fear of soiling himself. R. at 1109.
At an April 2011 VA examination, Mr. Cantrell again reported 6 to 10 bowel movements per day when feeling well and 16 to 20 bowel movements during monthly episodes of pouchitis, which lasted three to four days. R. at 1095. He told the examiner that he worked as a park ranger and spent most of his day in the car; he was only able to do that work because he had “bathrooms mapped out on his routes.” R. at 1095-96. He indicated, however, that he needed to stay home from work when he had pouchitis. R. at 1096. The examiner opined that the veteran’s monthly bouts of pouchitis “interfered with his work on many ... occasions^] making it difficult for him to perform his job.” Id.
At a September 2011 Board hearing, Mr. Cantrell testified that he ordinarily had 6 to 10 bowel movements per day and 10 to 20 during an episode of pouchitis. R. at 1037-38. He stated that during pouchitis flare-ups he had watery diarrhea with urinary and fecal leakage, which required him to change his underwear two to three times per day. R. at 1038-39. He also testified that he had to resign from his previous job as a highway patrolman due to ulcerative colitis. R. at 1040-41. Regarding his current job as a park ranger, the veteran stated that he was able to work around his condition by knowing the location of every restroom in the park and by avoiding eating anything at work during pouсhitis episodes. R. at 1044-45. He stated that his condition prevented him from attending training lunches or doing physical training exercises for fear of soiling himself. R. at 1045. In an April 2012 SSC, he described recurring bouts of pouchitis that caused decreased sphincter control and increased bowel movements of 12 to 20 per day. R. at 967.
In his December 2012 application for TDIU, Mr. Cantrell indicated that he was working fulltime as a park ranger, a position that he held since 2007, and had made $32,950 the prior year. R. at 723. He explained that he was only able to maintain that job because of the many accommodations made by his employer, including being assigned only to duty stations near restrooms, not being required to remain at emergency scenes, and always having another ranger on call for him in case he needed to leave work early for medical reasons. R. at 727. Mr. Cantrell further stated that about three times per month he got so sick that he had to leave work early and that another two to three times per month he was unable to go to work at all. Id. According to the veteran, his employer was thinking of moving him to the night shift because he had recently been absent more often than he had been at work due to medical appointments and illness. Id. A March 2013 employer letter indicated that the veteran had been switched to the night shift due to repeated absences for medical appointments. R. at 679. The employer noted that he only assigned the veteran jobs near bathrooms and that it would have been too costly to employ the veteran without these accommodations. R. at 679-80.
An October 2014 VA medical examination report noted that the veteran’s service-connected bilateral hip problems impacted his ability to work by causing, inter alia, difficulty walking and bending. R. at 482.
In March 2015, Mr. Cantrell submitted an employability assessment completed by a private vocational expert. R. at 79-91. The vocational expert noted that the vetеran required 10 to 15 bathroom breaks per workday, lasting around 20 minutes each, and that his employer gave him “full liberty” to take rest breaks as needed to use the bathroom, stop and stretch his hips, or lie down to restore his composure and energy. R. at 81-83. The vocational expert opined that Mr. Cantrell’s work as a park ranger was “tantamount to a ‘protected employment’ situation” because “no typical employer can or would allow/accommodate a worker to take three and one third (3 1/3) hours per workday/work shift for bathroom break purposes.” R. at 84. He stated that it was reasonable for an employer to terminate an employee if “off task” work exceeds 45 to 60 minutes per workday and concluded that the veteran’s “above-noted need for bathroom/rest breaks renders him totally unemployable for any competitivе occupation and that his present employment situation far exceeds the bounds of typical or normally-expected employer accommodation of a disabled worker.” Id. The vocational expert ultimately classified Mr. Cantrell’s employment situation as an “unprecedented accommodation” that was “completely contingent upon the unprecedented beneficence” of his employer. R. at 85.
In August 2015, the Board issued the decision currently on appeal. R. at 2-18. As relevant here, the Board denied entitle
In February 2017, Mr. Cantrell notified the Court that he had retired from his job as a park ranger in January 2017 due to service-connected ulcerative colitis, urge incontinence, and left and right hip disabilities. Appellant’s February 7, 2017, Notice at 1 & Exhibit 1. However, on April 5, 2017, the veteran notified the Court that he had not retired in January 2017, but rather, he had provided his employer with a letter of resignation declaring his intent to retire. Appellant’s April 5, 2017, Notice at 1 & Exhibit 1.
II. ANALYSIS
A. TDIU
TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (2016); see Hatlestad v. Brown,
Relevant to this appeal, § 4.16 states that “[m]arginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald,
For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Mar*388 ginal employment may also bе held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.
38 C.P.R. § 4.16(a),
As with any finding on a material issue of fact and law presented on the record, the Board must support its TDIU determination with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Pederson,
1. The Parties’ Arguments
Mr. Cantrell principally argues that the Board provided inadequate reasons or bases for its determination that his employment as a рark ranger did not qualify as “in a protected environment” for TDIU purposes. Appellant’s Brief (Br.) at 14-20; Reply Br. at 1-5.
The Secretary disputes these contentions and urges the Court to affirm the Board decision because the Board adequately assessed entitlement to TDIU on a facts found basis as required by § 4.16, including properly discounting the March 2015 vocational expert’s opinion. Secretary’s Br. at 12-21. In his supplemental memorandum of law, the Secretary asserts that “VA has purposely chosen not to definе ‘employment in a protected environment,’ leaving it to the discretion of the factfinder on [a] case-by-case basis.” Secretary’s Supplemental Memorandum of Law (Supp. Memo) at 12. The Secretary requests that the Court defer to this intentional ambiguity, which he contends is consistent with the language of § 4.16(a) and VA policy and reflects the agency’s fair and considered judgment that VA adjudicators must possess the utmost leeway in making this “factual determination.” Id. at 12-14.
Mr. Cantrell vociferously objects to the Secretary’s position, characterizing it as “unfettered” and “unlinked to any authoritative standard,” inviting arbitrary and capricious decisionmaking by VA. Appellant’s Supp. Memo at 8-9. He argues that, without an articulated standard for employment “in a protected environment,” he cannot discern and the Court cannot determine whether the factors the Board considered in this cаse were appropriate. Id. at 8-9. The Court agrees with this latter contention.
2. Employment in a Protected Environment
This case involves the interpretation of the term employment “in a protected environment” in § 4.16(a). We therefore begin our analysis with an examination of the language of that regulatory provision. See Good Samaritan Hosp. v. Shalala,
The meaning of employment “in a protected environment” is not clear from the plain language of § 4.16. VA did not expressly define that term in the regulation and the nonexhaustive list of examples of what may constitute employment in a protected environment that VA did provide in § 4.16(a)—i.e., a family business or sheltered workshop—does not resolve this uncertainty. To the contrary, that list of examples suggests that VA may have intended employment “in a protected environment” to be a term of art that differs from the ordinary, accommodation-based dictionary definition proffered by the veteran. See 55 Fed. Reg. 31,579, 31,580 (Aug. 3, 1990) (agreeing with a commenter that it was necessary to clarify the definition of marginal employment when earned income exceeds the poverty threshold and providing the list of examples rather than resorting to a dictionary definition). While family businesses and sheltered workshops often involve employment accommodations, the presence of such accommodations is not the only similarity between the two and is not even a necessary characteristic for employment in a family business. Moreover, no other VA disability compensation regulation mentions employment in a protected environment, much less defines it, and the regulations surrounding § 4.16 in the Code of Federal Regulations do nothing to elucidate the term’s meaning. See Correia v. McDonald,
The problem, however, is that the Secretary has refused to proffer any definition of employment “in a protected environment” for the Court to analyze. In fact, when ordered by the Court to provide one, the Secretary responded that “VA has purposely chosen not to prescribe a precise definition of ‘protected environment,’ allowing the factfinder to make the determination on a case-by-case basis.” Secretary’s Supp. Memo at 12. In the Secretary’s view, this ambiguity by design is a beneficial feature of § 4.16(a), providing VA adjudicators with “the broad discretion in assessing the factual particularities of each case” that is necessary to determine whether a veteran’s employment qualifies аs employment in a protected work environment. Id. at 13. Essentially, the Secretary is asking the Court to defer to a “we know it when we see it” definition of employment in a protected environment and to trust that the hundreds of VA adjudicators across the country will uniformly and consistently apply that undefined term without guidance from the Secretary.
The flaw in this reasoning is obvious: Without a definition of the phrase or, at
In short, absent an articulated standard for employment “in a protected environment” that is capable of consistent application by VA and meaningful review by this Court, we cannot defer to the Secretary’s decision not to define that term in § 4.16(a). See Hood v. Brown,
Although “the law does not demand perfect consistency in administrаtive decision-making,” South Shore Hosp., Inc. v. Thompson,
Here, the Board determined that Mr. Cantrell’s employment as a park ranger did not constitute employment “in a protected environment” because it entailed substantial responsibilities—including being allowed to carry a weapon and drive a patrol car and being required to deal with rule violators—and “the accommodations made by [his] employer have allowed him to perform his job successfully and on a full[-]time basis.” R. at 17. Although the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work might be appropriate factors to consider in determining whether a veteran is employed in a protected environment, VA’s failure to define employment “in a protеcted environment” or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue because the Court is unable to meaningfully assess the propriety of the Board’s reliance on the factors it cited in this case. See Hood,
To the extent thаt Mr. Cantrell requests that the Court define the term employment “in a protected environment” for TDIU purposes, see Appellant’s Br. at 15; Reply Br. at 1-2, we decline to do so at this time. “It is VA’s responsibility to define the terms contained within its regulations,” Ortiz-Valles,
3. Credibility
In addition, the Court agrees with the veteran that the Board provided inadequate reasons or bases for finding his reports to the vocational expert of his ulcera-tive colitis symptoms to be inconsistent with his prior reports to treating physicians.
The Board’s analysis of the vocational expert’s opinion focuses not on the number of times that Mr. Cantrell used the restroom each workday, but rather on the amount of time that the veteran spent in the restroom each workday. Specifically, the Board noted the vocational expert’s estimate that, based on Mr. Cantrell’s reports, he “lost 3 1/3 hours per workday to bathroom breaks,” which significantly exceeded the 45 to 60 minutes of “off task” work time that, in the expert’s experience, would justify reasonable termination of an employee. R. at 16. The Board found Mr. Cantrell’s reports to the vocational expert not credible because they were “inconsistent with the rest of the record” insofar as the veteran had “not previously reported that he spends nearly half of his work shift in the restroom on days when he is not experiencing pouchitis.” R. at 17.
Although the Board is correct that Mr. Cantrell had not previously stated that he spent half of his workday in the restroom when he was not experiencing pouchitis, the record does not contain any evidence other than the March 2015 vocational expert’s report in which the veteran quantified the amount of time spent in the restroom each day, as opposed to the number of bowel movements he had each day, and none of the medical records referenced by the Board addresses that matter. See R. at 10-12, 640, 747-60, 886-917, 1095-97, 1122-23, 1245, 1246, 1248. In other words, the record lacks any statements as to total time spent in the restroom on a workday, and thus no statements that may be inconsistent, upon which the Board’s discounting of the vocational expert’s opinion was based.
Accordingly, the Court concludes that the Board failed to identify a proper foundation in the record for its adverse credibility determination, further diminishing the adequacy of its reasons or bases for denying entitlement to TDIU and justifying remand of that issue. See Southall-Norman,
B. Extraschedular Referral
The Board generally must consider referral for consideration of an ex-traschedular evaluation “ ‘[w]here there is evidence in the record that shows exceрtional or unusual circumstances or where
Mr. Cantrell argues that the Board provided inadequate reasons or bases for denying referral for consideration оf an extraschedular evaluation for his service-connected post-surgery ulcerative colitis because it did not adequately consider the reasonably raised issue of the collective impact of all his service-connected disabilities in violation of Johnson. Appellant’s Br. at 24-28. The Secretary disputes this contention and asserts that the record did not contain evidence demonstrating that the veteran’s service-connected disabilities interacted to cause an exceptional or unusual disability picture not already contemplated by the schedular evaluation criteria. Secretary’s Br. at 21-24. Mr. Cantrell responds by pointing to evidence of record that allegedly reflects that his service-connected post-surgery ulcerative colitis and hip disabilities collectively caused difficulties with standing and walking that are greater than the impairment caused by those individual disabilities alone. Reply Br. at 8-10. The Court agrees with the veteran.
Contrary to the Secretary’s contention, the record before the Board reasonably raised the issue of referral for consideration of an extraschedular evaluation on a collective basis because evidence of record addressed the collective impact of Mr. Cantrell’s service-connected disabilities. See Yancy,
As in Yancy, where the Court held that the issue of the collective impact of the veteran’s service-connected disabilities was reasonably raised by evidence of record that showed that the veteran could not stand or sit for long periods as a result of multiple service-connected disabilities,
Moreover, the Board’s approach in this case improperly focused on individual symptoms, rather than the collective impact of those symptoms on the veteran’s overall disability picture. As the U.S. Court of Appeals for the Federal Circuit explained in Johnson:
Limiting referrals for extra-schedular evaluation to considering a veteran’s disabilities individually ignores the compounding negative effects that each individual disability may have on the veteran’s other disabilities. It is not difficult to imagine that, in many cases, the collective impact of all of a veteran’s disabilities could be greater than the sum of each individual disability’s impact.
III. CONCLUSION
Upon consideration of the foregoing, Mr. Cantrell’s February 23, 2017, motion for leave to file a notice of supplemental authority out of time is granted.
The portions of the August 13, 2015, Board decision denying referral for consideration of an extraschedular evaluation for service-connected post-surgery ulcerative colitis and entitlement to TDIU are SET ASIDE and those matters are REMANDED for readjudication consistent with this decision. On remand, Mr. Cantrell may present any additional arguments and evidence pertinent to those matters to the Board in accordance with Kutscherousky v. West,
The balance of the appeal is DISMISSED.
BARTLEY, Judge, filed the opinion of the Court. LANCE, Judge, filed a concurring opinion.
Notes
. A "proctocolectomy” is "surgical removal of the rectum and colon.” Dorland’s Illustrated Medical Dictionary 1521 (32d ed. 2012) [hereinafter Dorland’s]. "Ileonal anastomo-sis” is a surgical procedure where a portion of the small intestine is sutured into a pouch and attached to the anus to allow continent рassage of stools. Id. at 75, 1505, 1626; see Total Proctocolectomy and Ileal-Anal Pouch, Nat’l Insts. of Health, Medline Plus Medical Encyclopedia, https://medlineplus.gov/ency/ article/007380.htm (last visited March 20, 2017). "Pouchitis” is inflammation of the ileoanal pouch. Dorland’s at 1506.
. The Board also granted an earlier effective date of September 27, 2011, for the grant of service connection for urge incontinence. R. at 4, 7-8. Inasmuch as this finding is favorable to the veteran, the Court will not disturb it. See Medrano v. Nicholson,
.The Court held oral argument for this case on February 27, 2017. On February 23, 2017, less than seven days before oral argument, Mr. Cantrell filed a motion for leave to file a notice of supplemental authority out of time, along with the notice itself. See U.S. Vet. App. R. 30(b) ("In no case will supplemental authority—pertinent and significant or otherwise—be accepted by the Clerk for filing fewer than 7 days preceding a scheduled oral argument, without leave of the Court.”) The Court will grant the motion for leave and will consider the authorities cited in the February 23, 2017, notice in maldng this decision.
. The parties do not dispute the Boаrd’s finding that Mr. Cantrell has met or exceeded § 4.16(a)’s numeric criteria for schedular TDIU since September 27, 2011, and that, prior to that date, he was only eligible for TDIU via extraschedular referral pursuant to § 4.16(b). R. at 15.
. Although the term "marginal employment” appears only in § 4.16(a), there is nothing in the regulation to suggest, nor has the Secretary asserted, that VA is precluded from determining that marginal employment exists for the purposes of referring a case for consideration of extraschedular TDIU under § 4.16(b).
. Although § 4.16(a) lists employment in a protected environment as an example of marginal employment and expressly states that marginal employment may be held to exist in other situations when earned annual income exceeds the poverty threshold, Mr. Cantrell does not argue that the Board erred in finding that his employment as a park ranger did not qualify as marginal employment on any other basis, see Appellant's Br. at 14-20; Reply Br. at 1-5, and he asserted at oral argument that it was not necessary for the Court to address marginal employment outside of the protected environment context, Oral Argument at 21:43-22:17. Therefore, the Court will focus solely on the Board's determination that Mr. Cantrell’s employment did not qualify as "in a protected environment” and will not address any other possible form of marginal employment. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that the Court has discretion to deem abandoned issues not argued on appeal).
. The Court notes that VA has stated that, in addition to "income,” "the frequency and type of service performed” are relevant factors in assessing whether a veteran is engaged in substantially gainful employment in a tightly held corporation. VA Adjudication Procedures Manual (M21-1), pt. IV, subpt. ii, ch. 2, § F(3)(d); see id. at § F(3)(c) (equating a tightly or closely held corporation with a family business). The Court nоtes that no attempt was made in this case either by the Secretary or the Board to apply such factors.
Concurrence Opinion
concurring:
I fully join the Court’s opinion and concur that we should not defer to the Secretary’s “facts found” definition of “protected environment,” as that standard is essentially non-reviewable. I also agree that the Secretary should be afforded the first opportunity to clarify his regulation. I write separately to raise two issues regarding the nature of a “protected environment.”
First, although the TDIU regulation provides that income below the poverty threshold constitutes “marginal employment,” see 38 C.F.R. § 4.16(a), I believe that a claimant’s income—and, specifically, whether the claimant receives the same pay as similarly situated coworkers who are not disabled—is also a factor relevant to whether the claimant is employed in a protected environment. VA disability ratings are “based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations,” 38 U.S.C. § 1155, and “are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability,” 38 C.F.R. § 4.1 (2016). An award of TDIU under § 4.16(a) merely provides an alternative avenue for a veteran to obtain a total disability rating. If a claimant’s disabilities do not result in lost income, then there is no loss of earning capacity, and an award of TDIU would not be appropriate.
Second, I believe the Secretary should be mindful of the Americans with Disabilities Act (ADA) when formulating his definition of “protected environment,” especially its mandate that employers provide reasonable accommodations fоr individuals with disabilities such as “job restructuring, part-time or modified work schedules, ... [and] acquisition or modification of equipment or devices.” 42 U.S.C. § 12U1(9)(B). Where a claimant’s employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer.
TDIU awards serve an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran’s disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose, I believe the Secretary would be well served to keep these issues in mind as he considers how to define “protected environment.”