Sheltered Work Environments and TDIU Claims
This article is a case study on Sheltered Work Environments and TDIU Claims. Even though a veteran’s disabilities may not combine to a 100% rating, he or she might be eligible for payment at the 100% rate if they cannot work because of their service-connected disabilities. In fact, in some instances, if a veteran can only work in a “marginal” capacity TDIU benefits are available from the VA. Work performed in a protected environment, such as a family business or sheltered workshop, may be marginal. 2017’s Cantrell v. Shulkin offers some additional guidance in this area.
Proving that abilities limit a veteran to working in a protected environment is a challenging task. It requires significant evidence and expertise. A thorough VA disability lawyer anticipates these challenges and is ready to overcome them when they arise. That preparation could be the difference between the benefits you deserve and being forced to settle for less.
Mr. Cantrell was service-connected for ulcerative colitis, arthritis in his hips, pouchitis, and hemorrhoids. He worked as a park ranger, but his disabilities made it incredibly difficult to stand for prolonged periods or be away from a bathroom for a long time. He used the bathroom up to twenty times per day and needed to change his underwear three to five times per day. In addition, he frequently missed work or left early.
Mr. Cantrell could not attend training lunches or perform physical training. His employer accommodated his disabilities by assigning him to duty stations near bathrooms. Also not requiring him to remain at emergency scenes, and having another ranger on call if he needed to leave work early. The employer allowed Cantrell to take all the rest breaks he needed, which amounted to over three hours per workday. A vocational expert stated that these accommodations “far exceed[ ] the bounds of typical or normally-expected employer accommodation of a disabled worker.” The expert found Mr. Cantrell worked in a sheltered or protected environment because his absences and excessive breaks would have resulted in his being fired from a competitive job.
Cantrell argued his service-connected disabilities limited him to working in a sheltered environment. Therefore, Individual Unemployability was an entitlement. The Board of Veterans Appeals disagreed. The BVA noted that he had substantial responsibilities and the employer’s reasonable accommodations allowed him to work full-time.
Although the law states that a veteran is entitled to TDIU if her or she can only work in a “protected environment such as a family business or a sheltered workshop,” VA has never explained what exactly these terms mean. In Mr. Cantrell’s case, VA argued that it had “purposely chosen not to define” what it meant by protected environment. Or what it meant by sheltered workshop. And that the BVA could simply make the determination based on the facts of the case without providing any definition.
The Court of Appeals for Veterans Claims disagreed. It criticized VA’s argument as amounting to nothing more than a finding that Mr. Cantrell did not work in a sheltered environment “because I say so.” It refused to defer to a “we know it when we see it” approach to determining sheltered employment. It sent Mr. Cantrell’s case back to the BVA to allow VA to provide a definition for the relevant terms.
The VA decided on Mr. Cantrell’s case in 2017. Yet the VA has still not outlined what factors it believes are important in determining whether employment is in a protected environment. Or a sheltered workshop. Opinions from vocational experts and a thorough, well-prepared argument are therefore critical. Especially in obtaining Individual Unemployability based on employment in a protected environment.
Work With Dedicated Attorneys
Successful TDIU claims rest on solid evidentiary foundations. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. Therefore, it does not create an attorney-client relationship.