Larson v. McDonough

10 F.4th 1325

• Court: Court of Appeals for the Federal Circuit
• Decided: August 26, 2021
• Docket: 20-1647
• Status: Published

Opinion

Case: 20-1647 Document: 62 Page: 1 Filed: 08/26/2021

United States Court of Appeals for the Federal Circuit ______________________

GARY R. LARSON, JR., Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-1647 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 17-744, Judge Amanda L. Mere- dith. ______________________

Decided: August 26, 2021 ______________________

CHRIS ATTIG, Attig Steel, PLLC, Little Rock, AR, ar- gued for claimant-appellant.

ROBERT R. KIEPURA, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH MARIE HOSFORD, ERIC JOHN SINGLEY; JONATHAN KRISCH, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Case: 20-1647 Document: 62 Page: 2 Filed: 08/26/2021

Washington, DC.

CHERYL ZAK LARDIERI, Perkins Coie LLP, Washington, DC, for amici curiae National Veterans Services Program, National Organization of Veterans’ Advocates, Inc. Also represented by ALEXANDER O. CANIZARES, BETSELOT ZELEKE; JOHN D. NILES, Carpenter Chartered, Topeka, KS; BARTON F. STICHMAN, National Veterans Legal Services Program, Washington, DC. ______________________

Before NEWMAN, REYNA, and HUGHES, Circuit Judges. HUGHES, Circuit Judge. Gary R. Larson, Jr. appeals the decision of the Veter- ans Court holding that it lacked jurisdiction to review a Board determination of what constitutes a disability under 38 U.S.C. § 1110. Because this court has previously held that the Veterans Court has jurisdiction to review a Board determination that a claimed condition did not constitute a disability for purposes of § 1110, we reverse the Veterans Court’s jurisdictional finding and remand. I The relevant facts of this appeal are undisputed. Mr. Larson served on active duty for training in the United States Navy Reserves in 1988 and on active duty in the Navy from 1989 to 1993. He gained a substantial amount of weight before, during, and after his active service. In 2009, Mr. Larson filed a claim for service connection for multiple conditions, including the two conditions at issue in this appeal, obesity and dysmetabolic syndrome (DMS). The VA denied the claims in 2010 and the Board affirmed that denial in 2016, holding that neither DMS nor obesity was a disability because neither condition is ratable under the VA Schedule of Rating Disabilities (rating schedule). Mr. Larson appealed to the Veterans Court. Case: 20-1647 Document: 62 Page: 3 Filed: 08/26/2021

LARSON v. MCDONOUGH 3

As relevant here, the Veterans Court affirmed the Board’s denial of service connection for DMS and obesity, holding that it lacked jurisdiction to review a Board deter- mination of what constitutes a disability under § 1110. Re- lying on this court’s decisions in Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004) and Wingard v. McDonald, 779 F.3d 1354 (Fed. Cir. 2015), and the Veterans Court’s decision in Marcelino v. Shulkin, 29 Vet. App. 155 (2018), the Veterans Court reasoned that such inquiry amounted to a review of the ratings schedule, which is prohibited by 38 U.S.C. § 7252(b). This appeal followed. II This court may review a Veterans Court decision “with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision.” 38 U.S.C. § 7292(a). In reviewing a Veterans Court decision, this court must decide “all relevant ques- tions of law, including interpreting constitutional and stat- utory provisions,” and set aside any interpretation thereof “other than a determination as to a factual matter” relied on by the Veterans Court that we find to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in ac- cordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory ju- risdiction, authority, or limitations, or in violation of a stat- utory right; or (D) without observance of procedure required by law.” § 7292(d)(1). We review the Veterans Court’s legal determinations de novo. Kyhn v. Shinseki, 716 F.3d 572, 575 (Fed. Cir. 2013). Mr. Larson argues on appeal that the Veterans Court legally erred when it held that the prohibition against re- view of the rating schedule deprived it of jurisdiction to re- view the Board’s determination that DMS and obesity were not disabilities for § 1110 purposes. Specifically, Mr. Lar- son asserts that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Case: 20-1647 Document: 62 Page: 4 Filed: 08/26/2021

Cir. 2018), this court considered the legal standard govern- ing what constitutes a disability under § 1110 and held that the Veterans Court has jurisdiction to review a Board determination of the same. Appellant’s Br. 38–39. The gov- ernment argues in response that this court held in Wanner that review of the meaning of “disability” under § 1110 is equivalent to a direct challenge to the rating schedule and that Congress intended to include the type of challenge pre- sented here in the prohibition against judicial review ex- pressed in 38 U.S.C. § 7252(b). The government further argues that Saunders is distinguishable from Mr. Larson’s appeal. III A We begin with the relevant statutory provisions. 38 U.S.C. § 1110 sets forth the basic entitlement for veter- ans’ disability benefits: For disability resulting from personal injury suf- fered or disease contracted in line of duty, or for ag- gravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, na- val, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under condi- tions other than dishonorable from the period of service in which said injury or disease was in- curred, or preexisting injury or disease was aggra- vated, compensation as provided in this subchapter. 38 U.S.C. § 1110 (1998). 38 U.S.C. § 7252 establishes the exclusive jurisdiction of the Veterans Court to review decisions of the Board. However, the Veterans Court “may not review the schedule of ratings for disabilities adopted under § 1155 of this title or any action of the Secretary in adopting or revising that Case: 20-1647 Document: 62 Page: 5 Filed: 08/26/2021

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schedule.” § 7252(b). The legislative history of the Veter- ans’ Judicial Review Act, which created the Veterans Court, adds further context to this jurisdictional limitation. Senate Report 100-418 explains that, under the restriction, a “court would not be permitted to direct or otherwise order that any part of a disability rating schedule issued or adopted by the Administrator be modified.” S. Rep. 100-418 at 53 (1988). House Report 100-963 similarly notes that the prohibition was prompted by “apprehension . . . that the VA schedule for rating disabilities . . . would be destroyed by piecemeal review of individual rating classifications.” H.R. Rep. 100-963 at 28 (1988). Thus, “[t]he language in the legislative history is not limited to the percentages of the disability ratings, . . . but matches the statutes in broadly precluding judicial review of the contents of the disability rating schedule in toto.” Wanner, 370 F.3d at 1130. The question before us is therefore narrow: Does a Board decision concerning what constitutes a disability un- der § 1110 necessarily implicate the content of the rating schedule and thus trigger § 7252(b)’s restriction on the Vet- erans Court’s jurisdiction? B We next turn to our precedent interpreting § 1110 and the prohibition against judicial review of the rating sched- ule. The government argues that this court held in Wanner that a challenge to a Board determination of what consti- tutes a disability under § 1110 is “‘indistinguishable’ from ‘direct review of the content of the rating schedule.’” Appel- lee’s Br. 19 (quoting Wanner, 370 F.3d at 1131). We disa- gree. In Wanner, the veteran “sought a compensable rating because of an increase in the severity of his Tinnitus.” 370 F.3d at 1126. The VA maintained the non-compensable or zero percent rating for his tinnitus because the relevant Diagnostic Code, DC 6260, required that, to receive a Case: 20-1647 Document: 62 Page: 6 Filed: 08/26/2021

compensable rating, the tinnitus be a symptom of “head in- jury, concussion, or acoustic trauma.” Id. The Veterans Court addressed the merits of the veteran’s claim and con- cluded that the trauma requirement of DC 6260 was inva- lid because it conflicted with § 1110. This court reversed, holding that the Veterans Court lacked jurisdiction to re- view the content of the rating schedule. Id. at 1129–30. The government argues that Wanner therefore stands for the proposition that the Veterans Court is without jurisdiction to review “what should be considered a disability,” includ- ing for § 1110 purposes. Appellee’s Br. 7. But Wanner un- ambiguously involved a direct challenge to the content of the rating schedule: the Veterans Court had invalidated the trauma requirement of DC 6260. See also Wingard, 779 F.3d at 1356 (holding that the Veterans Court did not have jurisdiction over a challenge to the contents of the rat- ing schedule adopted by the Secretary). To the extent that Wanner involved a challenge to the meaning of “disability,” it did so in the narrow context of how a ratable disability was defined by a specific Diagnostic Code. Section 1110 was only implicated in Wanner because the Veterans Court had invalidated a provision of the rating schedule as incon- sistent with § 1110. See 370 F.3d at 1127–28. The government further contends that even if our hold- ing in Wanner is confined to its context, we should none- theless extend that holding now because, based on the statutory scheme, “review of what constitutes a § 1110 dis- ability is no different from review of what is entitled to a § 1155 disability rating—which directly implicates the con- tent of the rating schedule.” Appellee’s Br. 19. Again, we disagree. We can find no statutory requirement—and the government points to none—that if the VA (or the Board or the Veterans Court) determines that a condition not listed on the rating schedule constitutes a disability under § 1110, it must modify the rating schedule. And there are potential ancillary benefits to which a veteran with an un- ratable service-connected disability would be entitled that Case: 20-1647 Document: 62 Page: 7 Filed: 08/26/2021

LARSON v. MCDONOUGH 7

are unrelated to any compensation contemplated by the rating schedule, including priority access to VA health care, 38 U.S.C. § 1710(a)(1)(A), and preference in federal hiring, 5 U.S.C. §§ 3309, 2108. See Amicus Br. 22 (listing ancillary benefits). Thus, reviewing a determination by the Board that a claimed condition does not constitute a disa- bility under § 1110, by itself, leaves the rating schedule un- disturbed. In Saunders, we specifically held that the Veterans Court can review what constitutes a disability. There, the Veterans Court affirmed a Board decision holding that a veteran’s knee pain, “absent a specific diagnosis or other- wise identified disease or injury, cannot constitute a disa- bility under 38 U.S.C. § 1110.” Saunders, 886 F.3d at 1358. This court reversed, holding that the Veterans Court had applied the wrong legal standard in determining that, for an ailment to constitute a disability under § 1110, it must be accompanied by a “diagnosis or identifiable condition.” Id. at 1368. Instead, this court held that the legal definition governing the term “disability” as used in § 1110 was “the functional impairment of earning capacity, not the under- lying cause of said disability.” Id. at 1363. Whether the Vet- erans Court had jurisdiction to review that Board determination in light of § 7252(b) was not raised in that appeal. See id. Nonetheless, Saunders articulated a defini- tion of “disability” for § 1110 purposes that is distinct from and not coextensive with disabilities listed on the rating schedule. IV Having established that this court’s holdings in Wan- ner and Wingard are distinct from and not in conflict with Saunders, the question before us becomes whether Mr. Larson’s appeal is a challenge to the content of the rat- ing schedule, as in Wanner and Wingard, or whether he seeks review of the Board’s determination of what consti- tutes a disability for § 1110 purposes only, as in Saunders. Case: 20-1647 Document: 62 Page: 8 Filed: 08/26/2021

Although knee pain, DMS, and obesity can relate to ratable disabilities, they do not appear as independent disabilities on the rating schedule. Mr. Larson, like the veteran in Saunders and distinct from the veterans in Wanner and Wingard, seeks only to establish service connection for his conditions under § 1110 and is not asking the Veterans Court to invalidate or revise any portion of the rating schedule. Accordingly, we conclude that Mr. Larson’s case is analogous to Saunders. Because Saunders controls the outcome of this appeal, we hold that the Veterans Court legally erred when it de- termined that it lacked jurisdiction to review the Board’s denial of Mr. Larson’s claim for service connection for DMS and obesity. Section 7252(b)’s restriction of the Veterans Court’s jurisdiction is not implicated where, as here, a vet- eran seeks only to establish that her conditions are service- connected disabilities for § 1110 purposes. Mr. Larson does not ask the Veterans Court to invalidate or modify a por- tion of the rating schedule, nor does he ask the Veterans Court to order the VA to assign him a rating for a condition inconsistent with the rating schedule. Cf. Wingard, 779 F.3d at 1356–57 (explaining that the Veterans Court lacked jurisdiction over a challenge to a regulation creating a “zero-percent” disability rating). Thus, the Veterans Court is not prohibited from reviewing Mr. Larson’s appeal of the Board’s determination that DMS and obesity were not disabilities under § 1110. 1

1 We need not discuss at this juncture whether DMS or obesity are properly considered disabilities for § 1110 purposes under Saunders, nor whether Mr. Larson’s DMS and obesity—should they be deemed disabilities—are con- nected to his service. These determinations must be made by the VA in the first instance. Case: 20-1647 Document: 62 Page: 9 Filed: 08/26/2021

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V We have considered the parties’ remaining arguments and find them unpersuasive. Because we agree with Mr. Larson that 38 U.S.C. § 7252(b) does not bar the Vet- erans Court from reviewing a Board determination of what constitutes a disability for purposes of 38 U.S.C. § 1110, we reverse that portion of the Veterans Court’s decision and remand for further proceedings consistent with this opin- ion. REVERSED AND REMANDED