Spicer v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: March 8, 2023
• Docket: 22-1239
• Status: Published

Opinion

Case: 22-1239 Document: 37 Page: 1 Filed: 03/08/2023

United States Court of Appeals for the Federal Circuit ______________________

LUTHER D. SPICER, JR., Claimant-Appellant

v.

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

2022-1239 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-4489, Judge Coral Wong Pi- etsch, Judge Joseph L. Toth, Judge Michael P. Allen. ______________________

Decided: March 8, 2023 ______________________

RENEE A. BURBANK, National Veterans Legal Services Program, Arlington, VA, argued for claimant-appellant. Also represented by CHRISTOPHER GLENN MURRAY, BARTON FRANK STICHMAN, I, Washington, DC.

MATTHEW JUDE CARHART, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, MOLLIE LENORE FINNAN, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; JONATHAN KRISCH, Y. KEN LEE, Office of General Counsel, Case: 22-1239 Document: 37 Page: 2 Filed: 03/08/2023

United States Department of Veterans Affairs, Washing- ton, DC. ______________________

Before TARANTO, CHEN, and STOLL, Circuit Judges. STOLL, Circuit Judge. Luther Spicer, Jr., appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) affirming the decision of the Board of Veterans’ Ap- peals (Board) denying him secondary service connection for a knee disability. Because we disagree with the Veterans Court’s interpretation of 38 U.S.C. § 1110, 1 we vacate and remand. BACKGROUND Mr. Spicer served in the United States Air Force from May 1958 to September 1959 and was exposed to hazard- ous chemicals, including benzene, in aircraft fuel. Years later, he developed chronic myeloid leukemia, a blood can- cer. The Department of Veterans Affairs (VA) recognized the leukemia as service-connected and granted him a 100 percent disability rating. Separately, Mr. Spicer developed arthritis in both knees, which caused pain and instability and required him to use a wheelchair. He was scheduled for knee replacement surgery to address his knee condition. It is undisputed that his scheduled surgery was canceled because the medications he took to manage his leukemia lowered his hematocrit, or red blood cell level, to a level that precluded surgery. Mr. Spicer was told that his

1 Mr. Spicer’s service falls outside “a period of war” so 38 U.S.C. § 1131, and not § 1110, governs. J.A. 3 n.1. The two statutes are otherwise identical, see Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998), and for consistency with the parties and the decision below, we also focus on § 1110. Case: 22-1239 Document: 37 Page: 3 Filed: 03/08/2023

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hematocrit would never rise to a level that would permit surgery because he is expected to stay on his cancer medi- cations for life. Mr. Spicer sought secondary service connection for his knee disability. The VA regional office denied the claim, finding no link between the knee disability and his service- connected leukemia. Mr. Spicer appealed to the Board, which affirmed the denial. J.A. 31–36. The Board ex- plained that Mr. Spicer’s “inability to undergo knee re- placement surgery because of the effects of his service- connected leukemia is not contemplated by the applicable laws or regulations to fall within the meaning of secondary service connection.” J.A. 33. Mr. Spicer appealed to the Veterans Court. Before the Veterans Court, Mr. Spicer argued that, notwithstanding any regulation, 38 U.S.C. § 1110 estab- lishes entitlement to service connection in his circum- stances. Spicer v. McDonough, 34 Vet. App. 310, 313 (2021). Section 1110 provides compensation for veterans “[f]or disability resulting from personal injury suffered or disease contracted in line of duty.” Mr. Spicer argued that § 1110 only requires a worsening of functionality—whether through an inability to treat or a more direct, etiological cause. A divided panel disagreed and affirmed the Board’s denial. Spicer, 34 Vet. App. at 313. The majority analyzed whether the language “disabil- ity resulting from” in § 1110 applied to disabilities “that in- clude the natural progression of a condition not actually caused or aggravated by a service-connected disability[,] but that nonetheless might have been less severe were it not for such disability.” Id. at 316. The majority deter- mined that it did not. Id. The majority first determined that the plain meaning of the phrase “resulting from” requires but-for causation. It reasoned that § 1110 therefore includes an etiological component, requiring that the veteran’s service be “the Case: 22-1239 Document: 37 Page: 4 Filed: 03/08/2023

cause(s) or origin of a disease.” Id. at 317 (quoting Allen v. Brown, 7 Vet. App. 439, 445 (1995)). Although it acknowledged that causation permits a multi-link causal chain, the majority held that Mr. Spicer’s knee condition did not result from his service-connected cancer. The ma- jority reasoned that “[u]nless we can say that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy,” there is “no actual but-for causa- tion.” Id. at 318. In the majority’s view, Mr. Spicer’s inter- pretation would require the VA to resort to “conjecture or speculation” to assess the difference between the current state of his knees and his knees post-surgery. Id. In addi- tion, the majority opined that, contrary to longstanding practice, Mr. Spicer’s interpretation would compensate for the natural progression of disabilities that arose inde- pendently of service. Id. at 318–19. Judge Allen dissented. He agreed that the key lan- guage is “disability resulting from,” but interpreted that language as requiring a much broader, causation-based standard. Id. at 321–22. He relied on similar caselaw as the majority, such as Murakami v. United States, 398 F.3d 1342, 1351–52 (Fed. Cir. 2005), where we held that “as a result of” requires showing “a consequence or effect.” (rely- ing on Webster’s Third New Int’l Dictionary 1937 (1993)). But he determined that such causation “merely requires that one thing flow from another,” especially given Con- gress’s use of the broad language “resulting from” without any limitations. Spicer, 34 Vet. App.at 323. The dissent reasoned that Congress could have listed other require- ments for establishing service connection in § 1110, such as an etiological cause, but it did not do so. As for the major- ity’s concerns about the speculative nature of assessing Mr. Spicer’s level of knee impairment due to his inability to have surgery, Judge Allen noted that secondary service connection already requires complex causation analyses and that VA adjudicators address similarly complex issues every day. As for the majority’s concerns about Case: 22-1239 Document: 37 Page: 5 Filed: 03/08/2023

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compensation for the progression of a disability that arose independent of service, the dissent noted the Supreme Court’s warning against relying on policy considerations when the law is clear. Id. at 327–28 (citing BP P.L.C. v. Mayor & City Council of Balt., 141 S. Ct. 1532, 1542 (2021)). Mr. Spicer appeals. We have jurisdiction under 38 U.S.C. § 7292. DISCUSSION I Mr. Spicer challenges the Veterans Court’s interpreta- tion of 38 U.S.C. § 1110. We review the Veterans Court’s interpretation of statutes de novo. See 38 U.S.C. § 7292(c); Breland v. McDonough, 22 F.4th 1347, 1350 (Fed. Cir. 2022). Section 1110 provides that the United States will pay a veteran “[f]or disability resulting from personal injury suffered or disease contracted in line of duty.” The parties agree, and our caselaw provides, that “disability” in § 1110 refers to a veteran’s present-day “functional impairment.” Saunders v. Wilkie, 886 F.3d 1356, 1362–63 (Fed. Cir. 2018) (defining “disability” in § 1110 as a “functional im- pairment”); see Oral Arg. at 21:28–21:50, 28:22–30:10, https://oralarguments.cafc.uscourts.gov/default.aspx?fl=2 2-1239_01102023.mp3.Thus, Mr. Spicer’s claim is that his current functional knee impairment is resulting from his leukemia contracted in the line of duty. The parties also agree that the language “resulting from” in § 1110 requires but-for causation. Appellee’s Br. 12; Oral Arg. at 0:10–0:22. The parties further agree that but-for causation is a broad standard of causation, or at least broader than proximate causation, and encom- passes multi-link causal chains. Appellant’s Br. 9; Appel- lee’s Br. 18–19 & 19 n.6. The parties’ agreement follows Supreme Court precedent, which recognizes that Case: 22-1239 Document: 37 Page: 6 Filed: 03/08/2023

(i) Congress legislates knowing that the phrase “resulting from” means but-for causation, (ii) there can be multiple causes of a harm, and (iii) “but-for” liability based on a par- ticular cause simply means that but for the cause, the re- sult would not have occurred. Burrage v. United States, 571 U.S. 204, 211–12 (2014). The dispute is thus narrow: Whether the but-for cau- sation requirement in § 1110 is limited, as the government contends, to bringing something about or the onset or etio- logical link, or whether, as Mr. Spicer contends, that lan- guage may encompass situations where the service- connected disease or injury impedes treatment of a disabil- ity. For the reasons below, we adopt the latter view. II Our analysis begins and ends with the statutory text. See Res-Care, Inc. v. United States, 735 F.3d 1384, 1388 (Fed. Cir. 2013). Only where there is “interpretive doubt,” after using ordinary textual analysis tools, do we rely on the pro-veteran canon for guidance. Kisor v. McDonough, 995 F.3d 1316, 1325 (Fed. Cir. 2021), cert. denied, 142 S. Ct. 756 (2022). If the intent of Congress is clear from the statutory language, that is the end of our inquiry. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). Section 1110 provides: 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, air, or space 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 Case: 22-1239 Document: 37 Page: 7 Filed: 03/08/2023

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aggravated, compensation as provided in this sub- chapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. We focus on the first clause: “For disability resulting from personal injury suffered or disease contracted in line of duty.” The initial phrase, “[f]or disability,” means pre- sent-day functional impairment. See Saunders, 886 F.3d at 1362–63. We have recognized that the word “disability” refers to a “functional impairment, rather than the under- lying cause of the impairment,” id., a definition the parties do not dispute, Oral Arg. at 29:02–29:40. In other words, the statute refers only to the disability itself—not its cause—and thus an interpretation of the statute that re- quires a veteran’s service to be the onset or etiological link of a disability would not be derived from this statutory lan- guage. Next, we turn to the key language in this case: “result- ing from.” This phrase has no qualifiers or exceptions. No textual or contextual indication dictates a narrower inter- pretation of “resulting from” than but-for causality. See Burrage, 571 U.S. at 212. The but-for causation standard is not limited to a single cause and effect, but rather con- templates multi-causal links, including action and inaction (e.g., the failure to shovel snow can be a but-for cause of someone falling). See id. at 211 (explaining how poison can be a but-for cause of death even if other diseases contribute to the death); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020) (describing the failure to signal a turn at an intersection as a but-for cause of a collision). Stated other- wise, but-for causation is broad, undisputedly broader than proximate cause. See Appellee’s Br. 19 n.6; see also Bos- tock, 140 S. Ct. at 1739 (characterizing but-for causation as “a sweeping standard”). In drafting § 1110, Congress spe- cifically invoked but-for causation and did not indicate that it meant anything else. Case: 22-1239 Document: 37 Page: 8 Filed: 03/08/2023

Congress could have limited the § 1110 causation standard. Indeed, Congress drafted a narrower statute us- ing qualifiers in § 1153. There, Congress excluded compen- sation for the aggravation of “preexisting injury or disease” when the increase in disability is due to the “natural pro- gress of the disease.” 38 U.S.C. § 1153. Congress did not similarly limit or qualify the text of § 1110. We must give meaning to this difference. See Res-Care, 735 F.3d at 1389 (stating the cardinal rule of statutory interpretation that Congress’s use of different terms within related statutes generally implies that Congress intended different mean- ings); see also Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e ordinarily resist reading words or elements into a statute that do not appear on its face.”). Thus, the causa- tion standard of § 1110 is simply standard but-for causa- tion. Put together, § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language ap- plies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonethe- less would have been less severe were it not for the service- connected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality— whether through an inability to treat or a more direct, eti- ological cause. Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality. The government’s main argument against this inter- pretation focuses on the second clause of § 1110: “aggrava- tion of a preexisting injury suffered or disease contracted in line of duty.” See Appellee’s Br. 27–28. Specifically, the government contends that Congress in § 1110 distin- guished disabilities whose onset resulted from service from disabilities that were aggravated by service and did not al- low compensation for the latter. See id.; Oral Arg. at 22:46–24:09. Specifically, the government argues that Congress’s choice of the words in the second clause of Case: 22-1239 Document: 37 Page: 9 Filed: 03/08/2023

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§ 1110 (“aggravation of a preexisting injury”) means that any aggravation (even of a non-preexisting injury or dis- ease) must be different than what is addressed in the first clause. 2 We do not adopt the government’s view. The second clause of the statute narrowly addresses “aggravation of a preexisting injury.” In other words, that clause addresses preexisting conditions, not all the diseases and injuries that § 1110 addresses. Absent some other language in the statute, this phrase cannot be fairly read to exclude all ag- gravation from the first clause of § 1110, including aggra- vation of post-service conditions. See Bates, 522 U.S. at 29–30 (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (cleaned up). Although our interpretation rests fully on the statutory text, we note that our interpretation is also consistent with the VA’s treatment of “secondary conditions.” The VA does not require a direct causation standard when addressing such conditions. For example, in Wanner v. Principi, 17 Vet. App. 4, 8 (2003), rev’d and remanded on other grounds, 370 F.3d 1124 (Fed. Cir. 2004), the VA awarded compensa- tion for a disability caused by the medication used to treat a veteran’s service-connected condition. There, the veteran developed tuberculosis during service. Id. The medication the veteran took to treat tuberculosis caused tinnitus, and the Board awarded service connection for his tinnitus. Id. at 8–9. Likewise, in Payne v. Wilkie, 31 Vet. App. 373

2 In sum, the government tries to import 38 U.S.C. § 1153’s stricter language for “aggravat[ion]” of “[a] preex- isting injury or disease” to all the disabilities § 1110 con- templates, which includes post-service injuries or disabilities. Case: 22-1239 Document: 37 Page: 10 Filed: 03/08/2023

(2019), the VA recognized that causation could include multiple steps in the causal chain. Accordingly, the VA ac- cepted the theory that service-connected upper extremity disabilities caused obesity, which in turn caused other non- service-connected disabilities, which in turn caused loss of a creative organ. Id. at 383–85 (interpreting 38 U.S.C. § 1114(k), which provides compensation when, “as the re- sult of” a service-connected disability, a veteran suffers the loss of a creative organ). And the VA also awards compen- sation for a disability where a service-connected disability prevents exercise, which leads to obesity, which leads to another disability, like hypertension. Memorandum from Acting Gen. Couns. to Exec. in Charge, Bd. of Veterans’ Ap- peals, VAOPGCPREC 1-2017 (Jan. 6, 2017), at 9–10, http://www.va.gov/OGC/docs/2017/VAOPGCPREC1- 2017. pdf. As for the government’s concerns that the VA cannot “measure, evaluate, or appropriately compensate Mr. Spicer’s knee functionality” in a but-for world because the assessment is too speculative, Appellee’s Br. 30, we are not persuaded. Describing a but-for world necessarily re- quires imagining that which did not occur. See, e.g., Mital Steel Point Lisas Ltd. v. United States, 542 F.3d 867, 876 (Fed. Cir. 2008) (“But for causation is a hypothetical con- struct.”) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989)). Put differently, some speculation is nat- urally baked into but-for causation. Agencies and tribu- nals tasked with determining causation—like the VA—are familiar with this kind of analysis. To illustrate, under 38 U.S.C. § 1151, the VA assesses what would have happened but for medical negligence. As the Secretary has explained, this analysis includes consid- eration of whether a physician’s negligence caused the nat- ural progression of a disease by failing to prevent such natural progress from occurring. See Additional Disability or Death Due to Hospital Care, Medical or Surgical Treat- ment, Examination, Training and Rehabilitation Services, Case: 22-1239 Document: 37 Page: 11 Filed: 03/08/2023

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or Compensated Work Therapy Program, 69 Fed. Reg. 46,426 (Aug. 3, 2004). This could encompass, for example, the failure to perform a corrective surgery. Id. at 46,428. The VA also assesses the ameliorative effect of a medica- tion for purposes of determining certain ratings. See Oral Arg. at 9:30–10:04; see, e.g., Jones v. Shinseki, 26 Vet. App. 56, 62–63 (2012); McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016). In other words, the VA regularly evaluates how medical intervention affects or would have affected a vet- eran’s disability. And under 38 U.S.C. § 1153, the VA as- sesses the delta between a condition’s worsening due to active service versus the natural progression of that condi- tion. Here, for example, Mr. Spicer seeks an assessment of the delta between his current condition and what it would have been post corrective knee surgery. Oral Arg. at 7:39– 8:08. Such an assessment would seem within the VA’s ca- pabilities, especially given the VA’s everyday use of medi- cal opinions to guide its factfinding. In any event, § 1110 is clear, and we will not second guess Congress’s choice of words based on such policy considerations. BP P.L.C., 141 S. Ct. at 1542. We decide this case based on our interpretation of § 1110 alone. To the extent that the VA also applied 38 C.F.R. § 3.310(b) to reject Mr. Spicer’s theory of compen- sation, that regulation is unlawful as inconsistent with 38 U.S.C. § 1110. CONCLUSION We have considered the government’s remaining argu- ments and find them unpersuasive. For the reasons above, we vacate the Veterans Court’s decision and remand for proceedings consistent with this opinion. VACATED AND REMANDED COSTS Costs to Appellant.