Breland v. McDonough
22 F.4th 1347
Fed. Cir.2022Background
- Willis Breland, a Vietnam veteran, was diagnosed with squamous cell carcinoma of the tongue in December 2006; initial treatment completed January 2007 and a recurrence treated surgically in February 2008; records showed no malignancy by July 2008.
- Breland filed for VA benefits in December 2006; regional office initially denied service connection but retroactively granted service connection in 2015 after new medical opinion linking cancer to Agent Orange.
- The VA assigned two retroactive staged 100% ratings covering the active cancer and six months after treatment (per 38 C.F.R. §4.114, DC 7343), and assigned residual/partial ratings for other periods when no active cancer was documented.
- Breland contested the reductions and argued the note to DC 7343 requires a mandatory VA examination six months after treatment before any reduction below 100%—so the VA could not reduce his rating for long retroactive periods without that exam.
- The Board of Veterans’ Appeals and the U.S. Court of Appeals for Veterans Claims rejected Breland’s reading, holding the note’s mandatory-exam requirement is prospective and inapplicable to ratings assigned retroactively; Federal Circuit affirmed.
Issues
| Issue | Breland's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the DC 7343 note’s requirement that “six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination” applies when the VA assigns ratings retroactively years after treatment | Breland: The note is mandatory and unqualified; VA must perform the six‑month VA exam (or a later VA exam) before reducing a 100% rating, even for retroactive awards, so he should have continuous 100% from his claim date until a VA exam in 2017 | Government: The note contemplates continuation of an existing 100% rating and a prospective mandatory exam; a retroactively assigned rating cannot “continue” and the six‑month VA exam requirement, and §3.105(e) protections for payments currently made, do not apply to retroactive staged ratings | The court affirmed the Veterans Court: the note is prospective and does not require a six‑month mandatory VA exam for ratings assigned retroactively; VA may assign/reduce retroactive staged ratings based on the medical record |
Key Cases Cited
- Breland v. Wilkie, 32 Vet. App. 360 (Vet. App. 2020) (Veterans Court interpreted DC 7343 note as prospective and affirmed staged retroactive ratings)
- Gazelle v. Shulkin, 868 F.3d 1006 (Fed. Cir. 2017) (standard for de novo review of legal questions from Veterans Court)
- Kisor v. Wilkie, 139 S. Ct. 2400 (U.S. 2019) (framework for deference to agency interpretations)
- Nyeholt v. Sec'y of Veterans Affairs, 298 F.3d 1350 (Fed. Cir. 2002) (discussing indefinite continuation of 100% ratings under analogous notes)