Delisle v. McDonald
2015 U.S. App. LEXIS 10230
| Fed. Cir. | 2015Background
- Ervin N. Delisle served in the Army (1952–1954) and later developed a right-knee disorder that was service connected and rated 10% by the VA in 1978 under DC 5003.
- Delisle filed for an increased rating on June 28, 2009; before the Board decision he had a total right-knee replacement on April 7, 2010.
- The RO later assigned a 100% rating from April 7, 2010 to May 31, 2011 and lower ratings thereafter; Delisle’s appeal before the Board challenged only the period June 30, 2009–April 6, 2010 (the pre-surgery period).
- The Board denied an increased rating for that period; the Veterans Court affirmed, holding Delisle’s symptoms were encompassed by other DCs (e.g., DC 5003) and that DC 5257 need not apply.
- Delisle appealed, arguing DC 5257 should be read as a “catch-all” covering knee impairments not explicitly listed elsewhere; the Court of Appeals for the Federal Circuit dismissed for lack of jurisdiction and, on the merits, held DC 5257 is limited to recurrent subluxation or lateral instability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court has jurisdiction to review the Veterans Court s application of law to facts | Delisle framed the claim as statutory/ regulatory interpretation of DC 5257 | VA argued the Veterans Court s decision applied law to the facts and is not reviewable here | Dismissed for lack of jurisdiction under 38 U.S.C. § 7292(d)(2) because review would be law applied to facts |
| Whether DC 5257 is a "catch-all" covering knee impairments not listed elsewhere | DC 5257 should be read broadly to avoid rendering "knee, other impairment of" meaningless | Reading DC 5257 as a catch-all rewrites the regulation and conflicts with its plain text limiting it to specific symptoms | On the merits, DC 5257 is unambiguous and limited to impairments causing recurrent subluxation or lateral instability; not a general catch-all |
| Whether Delisle s symptoms fall outside other DCs such that DC 5257 should apply | Delisle contended his symptoms were not contemplated by other knee DCs and thus required DC 5257 | VA and Veterans Court found Delisle s symptoms fit existing DCs (e.g., DC 5003) | Veterans Court s factual determination that symptoms fit other DCs is not reviewable here |
| Whether Delisle is entitled to an increased rating for June 30, 2009–April 6, 2010 | Delisle sought higher rating under DC 5257 for that period | VA denied increased rating; Board and Veterans Court affirmed | No relief: dismissal for lack of jurisdiction and on merits DC 5257 does not support increase since Delisle lacked enumerated symptoms |
Key Cases Cited
- Prenzler v. Derwinski, 928 F.2d 392 (Fed. Cir. 1991) (de novo review of statutory or regulatory interpretation)
- Cook v. Principi, 353 F.3d 937 (Fed. Cir. 2003) (court lacks jurisdiction where review requested reduces to application of law to facts)