Citation Nr: 25004807 Decision Date: 04/09/25 Archive Date: 04/09/25 DOCKET NO. 08-29 836 DATE: April 9, 2025 REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) from February 1, 2013 through June 1, 2019 is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from January 1979 to January 1983, from April 1983 to February 1987, and from February 1987 to April 1999. In a March 2024 Joint Motion Partial Remand (Motion), the Court remanded the case to the Board for readjudication. Most recently, this matter was remanded by the Board in July 2024. The Veteran contends that he was unable to obtain or maintain substantially gainful employment on account of service-connected disabilities for the period from February 1, 2013 through June 1, 2019 (despite earning $50,000 in 2014, $67,000 in 2015, $67,000 in 2016, $68,000 in 2017, and $71,000 in 2018) because he worked in a protected environment and received accommodations. See February 2025 Attorney Brief; see SSA Earnings Record (current through September 5, 2019), received by VA in February 2025.] The Board cites the case of LaBruzza v. McDonough to elucidate what it means for a Veteran to work in a "protected environment" in accordance with 38 C.F.R. § 4.16(a): "Mr. LaBruzza and Mr. McBride timely appealed their respective Board decisions, and the Court has jurisdiction to review those decisions pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Their appeals were consolidated and referred to a panel of the Court, with oral argument, to address the meaning of the phrase "employment in a protected environment" in § 4.16(a). For the reasons that follow, we hold that this phrase is unambiguous and means a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111, 114 (emphasis added). Despite the assertions of the Veteran's attorney, it is unclear to the Board how the Veteran's employment could qualify as "protected," given that he has ostensibly earned a relatively high income in his position of employ over the course of the appeal period. See February 2025 Attorney Brief, at pp. 1,2. ("SUMMARY OF THE ARGUMENT 1. Competent vocational evidence has opined that [the Veteran] received excessive accommodation during his employment from February 1, 2013 to June 1, 2019, so his employment during this time constituted a protected work environment." ... To this end, two different vocational experts have assessed the nature of [the Veteran's] employment during the period on appeal.") (emphasis added). The claims file does not include a statement from the Veteran's employer, articulating how exactly the Veteran's employment was "protected." Given the Veteran's highly skilled and highly compensated position, it is unclear if the "excessive accomodation" received by the Veteran was reasonable and customary in his profession. Id. To this extent, the vocational opinions are not competent because they have not considered the Veteran's profession, in particular, but, instead, rely on generic assessments. The Board remanded this matter in July 2024 precisely to obtain the specific information which could have resolved these open questions. In particular, the Board requested information from the Veteran relative to his private treatment providers, his academic institutions, and his employer. A notice letter was mailed to the Veteran on August 14, 2024, requesting this information. The claims file does not include a notice letter to the Veteran's representative, as required by statute. Except as provided in paragraph (3), the Secretary shall provide to the claimant and the claimant's representative, if any, by the most effective means available, including electronic communication or notification in writing, notice of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. 38 U.S.C. 5103 (a)(1) (emphasis added). In order to ensure that notice has been provided to the Veteran and his representative, remand is required to mail a copy of the August 14, 2024 notice letter to the Veteran's attorney. The Board emphasizes that the case law is "unambiguous" in defining "employment in a protected environment" as a "lower-income position" and that, as a matter of law, the Board would almost certainly be unable to grant the Veteran's claim without the evidence requested in the July 2024 remand. See LaBruzza v. McDonough, 37 Vet. App. 111, 114. The matters are REMANDED for the following action: Mail the Veteran's attorney a copy of the August 14, 2024 notice letter, allow for a reasonable time for response, and readjudicate the claim. (continued on next page) G. William Riggs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.