Birdeye Middleton v. Shinseki
2013 U.S. App. LEXIS 16903
| Fed. Cir. | 2013Background
- Middleton, a veteran, was service-connected for type II diabetes and initially assigned a 20% rating under 38 C.F.R. § 4.119, DC 7913.
- He sought an increased rating after treatment with oral hypoglycemics and daily Byetta® injections, which prompt endogenous insulin secretion but are not exogenous insulin.
- The Board denied an increase to 40%, finding Middleton did not “require insulin” (i.e., be administered insulin), a required element of the 40% criteria.
- The Veterans Court affirmed, holding the plain text of DC 7913 requires administration of insulin and § 4.7 (assign higher of two evaluations where disability picture more nearly approximates higher rating) did not apply because Middleton did not satisfy the insulin element.
- Middleton appealed to the Federal Circuit, which limited its review to regulatory interpretation and affirmed the Veterans Court: "requiring insulin" means being administered insulin, and § 4.7 is inapplicable where the veteran fails to meet a mandatory element of the higher, cumulative rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “requiring insulin” in DC 7913 | "Requiring insulin" means needing insulin for control; endogenous insulin stimulated by drugs like Byetta® satisfies it | Plain text requires administration of insulin; alternatives (oral agents) are expressly listed elsewhere in the code | Court: "Requiring insulin" means being administered insulin; Byetta® does not satisfy it |
| Applicability of 38 C.F.R. § 4.7 (higher evaluation) | § 4.7 should apply when disability "more nearly approximates" higher criteria; Middleton’s picture approximates 40% despite not verbatim meeting ‘‘insulin’’ element | DC 7913 is successive/cumulative; 40% uses conjunctive "and," so all elements (including insulin) are mandatory; § 4.7 does not apply when a required element is unmet | Court: § 4.7 inapplicable because veteran did not meet an essential element of the higher rating; evaluating § 4.7’s application to facts is factbound and beyond this court’s jurisdiction |
Key Cases Cited
- Lockheed Corp. v. Widnall, 113 F.3d 1225 (Fed. Cir.) (interpret regulation by plain language and common meaning)
- Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir.) (Federal Circuit may review Veterans Court interpretation of VA rating regulations)
- Forshey v. Principi, 284 F.3d 1335 (Fed. Cir.) (Federal Circuit jurisdictional principles for regulatory review)
- Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir.) (limitations on appellate review of Veterans Court factbound determinations)
- Johnson v. Derwinski, 949 F.2d 394 (Fed. Cir.) (generally no review of factual determinations by Veterans Court)
- Watson v. Dep’t of the Navy, 262 F.3d 1292 (Fed. Cir.) (use of conjunctive "and" indicates all enumerated criteria are required)