¶1concurring:
¶2I 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.”
¶3First, 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.
¶4Second, 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 for 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.
¶5TDIU 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.”