Michael A. Hudgens v. Sloan D. Gibson

HUDGENS, Appellant, Michael A. GIBSON, Acting D.

Sloan Affairs, Appellee.

of Veterans 13-0370.

No. Appeals States Court

United

for Veterans Claims.

Argued April 2014.

Decided June

DAVIS, Judge: Army veteran A. Michael Hudgens appeals through counsel a De 26, 2012, cember decision of the Board (Board) (1) that, Appeals part, Veterans disability rating greater denied a than 10% degenerative joint for right disease of the accompanying knee with limitation of ex (2) 25, 2009; prior tension to November a disability rating greater denied than 10% instability for right prior of the knee (3) 2008; upheld November and of Mr. Hudgens’s disability reduction 10% rating right instability for knee from No vember 2009.1 November appeal, Hudgens argues, among On Mr. things, other that the Board erred in con 4.71a, cluding Diagnostic that 38 C.F.R. (DC) not apply Code 5055 does A replacements. panel knee decision is appropriate as this is an issue of first Derwinski, impression. See Frankel v. (1990). the rea 25-26 For below, stated of the sons the decision part part Board will be in reversed and in set aside for and matters remanded adjudication. further III, Columbia, Thomas E. Andrews I. BACKGROUND Carolina, appellant. South for the Army Mr. served in the U.S. August 1977 to 1980. He August from Kirsehner, Nathan P. with whom Will A. In injured right his knee service. Counsel, Gunn, Quinn, General David L. right unicompartmental he underwent a Counsel, Acting Assistant General Rebecca arthroplasty, replace- Baird, Deputy A. Assistant General Coun- Hudgens applied In for ment. Zimmer, sel, Washing- P. all of and Justin disability compensation for his knee. ton, brief, D.C., appel- were on the for the (RO) office him a 10% regional awarded lee. disability rating degenerative joint for dis- KASOLD, ease, In right injury. claimed as Judge, Before Chief and DAVIS, rating, another 10% Judges. the RO awarded LANCE rating jurisdiction disability upon individual unem- 1. The Court notes that it lacks based ployability, these matters were re- over the claims of entitlement to service because damage manded the Board. See 38 U.S.C. connection for nerve of the cervical 7252(a), 7266(a); Principi, 17 degenera- §§ Breeden v. spine and increased evaluations for (a instability right Board remand joint tive disease represent a final decision over November "does from jurisdiction”). appellant's entitlement to a total which this Court has issue of the and in a 2009 VA appeal In instability. expressed on knee this time based Bulle- and Pension Service right Compensation reduced the the RO tin, should not consider to a noncom- and that the Court instability from 10% Secre- as evidence of the effective November pensable rating, tary’s regulatory interpretation. Second, that the Hudgens argues Mr. Board, argued Hudgens Mr. Before the the reduction of upholding erred in by analogy under Board he be rated should instability (“Knee right for knee rating his 10% replacement (prothesis)”). DC 5055 of contains evidence it because the record to do so because The Board declined by was not discussed only instability to applies determined that DC Secretary concedes that the the Board. The replacement of prosthetic “the total stating that there was knee re- Board erred joint,” partial and not to instability the record of where Hudgens’s. as Mr. The evidence placements such stating note a June 2009 medical the RO’s reduction of includes upheld Board also on ex- Hudgens’s that Mr. dislocated rating right knee insta- Hudgens’s Mr. November 2009 medical note to Novem- tension and a bility from November gave out. stating that his knee buckled ber 2009. However, that re- argues reversal, mand, rather than is warranted. II. THE PARTIES’ ARGUMENTS Third, Hudgens argues that arguments three Mr. Mr. raises First, addressing whether a he that the Board Board erred appeal. argues un- applies higher disability was warranted concluding erred in DC semilunar, where, dislo- (“Cartilage, der only replacements to total knee DC cated, ‘locking,’ applies frequent episodes it to all knee plain language, its joint.”), into the where pain, find the and effusion replacements. Should Court by the evidence. The regulatory language ambiguous, Mr. Hud- the issue was raised ap- is not Secretary argues should resolve that DC 5258 gens argues that Court veteran. there is no evidence of plicable doubt in favor of the because interpretive However, the Secre- cartilage. If the Court should reach issue dislocated that remand is warranted Secretary’s interpretation regulation, tary of its concedes higher whether a for the Board to discuss Hudgens urges the Court to consider under disability rating have awarded ben- was warranted DC that 11 Board decisions semilunar, of, removal (“Cartilage, based on efits under DC 5055 applies which to the remov- only symptomatic”), while 3 Board decisions replacements, from the knee. (including appeal) cartilage the one here on have al of denied benefits on the basis that DC replacements. to total knee III. ANALYSIS

applies plain that the Secretary responds The A. Interpretation DC that it language of DC 5055 shows 1. Partial knee total, joint. If the compound to 5055. not covered DC language ambiguous, find the Court should language of DC 50552 plain that the must The Secretary argues Court replace- apply as does not regulatory interpretation defer to his joint: replacement of knee part, DC Prosthetic In relevant 5055 states: replacement (prosthesis). "5055 Knee interpretation begins promote to harmonize with context and Regulatory

ments. of the words used. plain meaning legislative with the policy). DC DC 5055’s Gardner, Brown in the neighbor regulatory subpart titled (1994); 552, 130 L.Ed.2d 462 S.Ct. Implants,” applies hip “Prosthetic re (Fed. Smith v. placements. In relevant part, DC 5054 Cir.1994) (the statutory interpre canons of language mirrors the except regulations). interpreting tation stating instead of “[p]rosthetic re “[p]rosthetic replace 5055 refers to placement joint,” of knee it “[p]ros states joint.” joint” ment of knee “Knee is de replacement thetic of the head of the fe knee, joint at the compound fined as “the mur or of the (emphasis acetabulum.”3 formed between the articular surface added). Secretary’s choice of this dis condyles and sur patella, patellar junctive regulatory language in DC 5054 femur, articu superior face of the provide shows that he knew how to bene lar surface of the tibia.” Dorland’s Illus prosthesis replacing part fits for a of a (32d Dictionary ed. trated Medical joint, opposed joint, as to the entire when 2012); Court, v. see Mallard U.S. Dist. he Interpreting intended to. DC 5055’s 1814, 104 L.Ed.2d 109 S.Ct. joint” language “knee to include both total (1989) (using dictionary to assist joint protheses would ren statute). The plain meaning review of der superfluous Secretary’s language regulation applies prosthetic therefore specifically providing benefits joint, replacements compound of the partial hip prostheses. to veterans with compartments which includes all three of Roper, supra; Bailey v. United in the Nothing plain language the knee. States, 516 U.S. 116 S.Ct. regulation applies indicates that it (1995) (“We 133 L.Ed.2d 472 assume that complete of less than a replacements Congress used it in two terms because joint, unicompartmental such as the each a particular, tended term to have prosthesis that Mr. has. nonsuperfluous meaning.”). The conclusion that the does The decision in v. Shin Court’s Jones not also seki, (2012), Vet.App. is instructive. regulatory is consistent with the overall Jones, In the Court considered whether scheme, which “should be construed so by con legal “the Board committed error given provisions, effect to all so that is its sidering the effects of medication on the part inoperative super- that no will be (irritable syn IBS bowel appellant’s [ fluous, insignificant, void or and so that drome) when those effects were not ex ] destroy one section will not another unless plicitly contemplated by rating crite provision is the result of obvious mis- ria.” held 61. Court Nicholson, Roper take or error.” Secretary’s that to include the “failure N. (quoting 2A criterion to be effects of medication as a Statutory Singer, Sutherland on Con- including under 7319 while (6th 2000)); considered § 46:06 ed. struction, (6 Hartwell, such effects as criteria under other DCs United States v. (courts Wall.) must therefore be read as a deliberate 18 L.Ed. 830 Utilizing the cannons statutory language should construe so as choice.” Id. at rating_30%.” Minimum Dorland's Illustrated Medical bone.” hip 2012). (32nd ed. Dictionary hip joint joint 3. The "the formed between is the acetabulum of the head of the femur and par need not address construction, that the Court the Court reasoned whether arguments regarding ties’ Secretary has in other demonstrated “[t]he currently regulatory offered Secretary’s he is aware of how to include DCs that his considered interpretation represents as a factor to be con effect of medication matter, see Mason v. view on the particular when disabili sidered Shinseki (Fed.Cir.2014), or whether reasoning this to Mr. 743 F.3d ty.” Employing Id. case, may rely nonprecedential only to the Court DC 5055 Hudgens’s making when this deter as the replacements, total knee Gober, mination, Lynch but Vet. parts in other has demonstrated cf. (1997) (“It 4.71(a) well established App. § that he is aware of how to include prece- part of dis decisions are of partial joint replacements [Board] value before the or this parts [Board] in other of dential ability rating criteria 4.71(a). Court.”); (pro § 20.1303 38 C.F.R. See Heino (Fed.Cir.2012) (“It Board deci viding “previously well set issued ‘[wjhere binding will be considered Congress par includes sions tled decided”). specific case language regard in one section of a statute to the ticular but omits it in another section of same Indeed, dissenting col although our Act, generally presumed it is Con so, mightily to do he can league struggles intentionally purportedly gress acts conjure ambiguity in DC 5055 when ” disparate the inclusion or exclusion.’ none. See Samari simply there Good States, 464 v. United (quoting Russello v. Ni Hosp., supra; Tropf tan 296, 17 104 S.Ct. 78 L.Ed.2d U.S. (2006) cholson, 317, 321 n. 1 (1983))). plain language Accordingly, ambiguous only (noting that “a statute is in regulation place and its the over ordinary mean application when the make clear that regulatory all scheme DC ing of and rules of construction to words to total knee 5055 is intended fails plain language of the replacements.4 issue”) (citing Bell question answer the FCC, 1044, Atl. Tel. v. 131 F.3d Generally, regulation’s language if the Cos. (D.C.Cir.1997) clear, (ambiguity “that is the end is a conclusion meaning makes its Hosp. question presented v. reached when the of the matter.” Good Samaritan Shalala, 409, 2151, 402, “at the level of literal lan 113 S.Ct. not answered U.S. (1993) Moreover, guage”)). though (quoting Chevron L.Ed.2d Council, there are 11 and the dissent note that Inc. Natural Res. U.S.A. Def. 842, 2778, Inc., 837, partial that rate knee re 81 Board decisions U.S. S.Ct. (1984)). 5055, assuming we placements L.Ed.2d 694 Because it is clear under DC prof such for their regulatory language can consider from majority fered of which the purpose5 are not included in DC —the Rather, Congress unequivocally interpretation contrary half. was 4. This is not "interpretive Supreme by "regu- Court’s mandate that clear that the Board is to be bound is to be resolved in the veteran’s favor.” doubt by Department, instructions of the lations 117-19, Gardner, U.S. See Brown opinions Secretary, precedential and the (1994). 130 L.Ed.2d 462 Rath- 115 S.Ct. legal Department.” the chief officer of the that, here, er, simply the Court holds there is 7104(c); § see also 38 C.F.R. See U.S.C. ambiguity to resolve. (providing "previously § issued 20.1303 binding will be considered suggestions Contrary other- to the dissent’s regard specific only with to the case decid- wise, body the Board is not the tasked with (Feb. ed.”); Fed.Reg. see also 57 regulations Secretary's interpreting on the be- in appear by Court notes do not the record of be analogy rated under DC which Court, proceedings general before the contemplates symptomatology including ly Kyhn v. 578 weakness, motion, pain, and limitation of (Fed.Cir.2013) (holding this Court is or under another DC. When the Secre from prohibited considering evidence that tary’s regulations provide do not DCs for was not in the record before the Board and disorders, specific may VA evaluate those engaging factfinding the first in conditions under codes for similar or anal stance) is “well established that —it ogous disorders. Lendenmann v. Princi unchallenged practice historical of the Sec (1992) pi, 3 Vet.App. (citing 38 retary is not evidence that the practice is 4.20). C.F.R. In determining whether Tropf, correct.” 20 Vet.App. at 321 n. 1 an unlisted condition should be by rated Brown, (citing 513 U.S. at 115 S.Ct. analogy, the Board should address 552) (“ length regulations’ ‘The unscru- whether the “functions affected” tinized and unscrutinizable existence’ ailments analogous; whether not alone ... enhance any [does] claim to “anatomical localization” of the ailments is deference.” (quoting Gardner v. analogous; and “sympto- whether the (Fed.Cir.1993))); F.3d 1463-64 See matology” of the analogous. ailments is Holowecki, Express Corp. also Fed. Id. 389, 399-400, 128 S.Ct. (2008) (holding L.Ed.2d 10 agen that an case, In this the Board’s decision ad cy’s interpretation expressed its consid dresses none of the factors for anal view interpretive ered when the relevant ogous conditions, even though Mr. Hud- statement had been published agency an gens specifically asserted that his interpretive years, manual for several even replacement should be rated anal though implementation interpreta (R.) ogy under DC 5055. Record at 11 “uneven”).6 tion had been (“The argues Veteran that his November

2. Partial Replacements Knee surgery ‘analogous’ was to total knee by

Rated Analogy replacement, and that he is entitled to a 30 percent ‘minimum’ ... rating under [DC] Although the Board did not err 5055.”); Derwinski, 1 Vet. in determining plain that the language of Schafrath (1991) (Board App. must consider DC 5055 to total knee prostheses, and applicable provisions remand is discuss all of law nonetheless warranted for the Board to adequately they “po address Mr. and where are made whether Hudgens’s partial replacement tentially applicable through should the assertions 3, 1992) case,” (noting parte may the ex nature of Board be considered in a the Board is

proceedings explaining "[questions and that not bound these decisions and must still effect, by, of making fairness would arise a decide a case "on the basis of the individual precedential decision [Board] when the De- light applicable proce- facts of the case in partment opportunity present has no to and law”). dure and substantive position proceeding. defend its in the Fur- ther, may VA appeal a decision to [Board] weight placing In substantial on the fact [U]niformity the [Court].... will be achieved Secretary any that the has not taken action important questions through on precedent de- decisions, respect with to these 11 Board cisions of the United States Court of Veterans dissent seems to do no more than invite the otherwise, Appeals."). Stated is Secretary to initiate clear and unmistakable establishing policy; tasked with VA the Board proceedings currently error in cases not be- following is poli- tasked with such established We, however, fore the Court. extend no such cy. (providing See 38 C.F.R. 20.1303 invitation. although "prior appeals other remand, record”). Secretary argues for reversal The in the raised and issues to remedy Mr. as “VA’s failure address is the adequately proper failure to Board’s renders its all analogy argument law and consider Hudgens’s observe applicable inadequate bases of reasons or statement renders reduction relevant evidence ” Id.; Tuck warrants remand. and ab initio.’ decisions ... ‘void severance West, Vet.App. er v. Vet.App. King (remand the Board “where appropriate (hold (2014); Schafrath, Vet.App. at 596 law, to incorrectly applied the failed has inadequate ing provided the Board of reasons adequate an statement provide uphold decision to reasons or bases for its determinations, or where for its or bases appellant’s rating, the reduction All otherwise inadequate”); the record is Board decision and remand reversing the day v. ing [the] the case “with instructions (Board’s to adequate “must be statement disability rating ... be rein appellant’s pre to claimant understand enable case, “a reduction stated” it was because decision, as well for the Board’s cise basis case”). Accordingly increase not an Court”). in this facilitate review as to uphold rating re Board’s decision Rating B. Reduction this be reversed and matter duction will pre to reinstate remanded orders agree, the Board with parties As the vious Id. rating. of Mr. upholding reduction erred insta right 10% Hudgens’s

bility. The Board found that reduction Rating Increased C. there no evi was warranted because was argues Mr. instability, the record but dence whether a addressing Board in not erred that, during the relevant evidence includes un higher disability rating was warranted knees buckled and period, Hudgens’s semilunar, (“Cartilage, dislo der DC (R. 526), and gave out at dislocated cated, ‘locking,’ frequent episodes 700). (R. The Board failed extension joint”), into the when pain, and effusion this favorable Gutierrez address evidence. raised evidence of the issue was Principi, dislocation, swelling, pain. Secre (Board’s reasoning flawed it fails when that the Board should have tary disagrees adequately support evidence in discuss evi applied 5258 because there claim). of rea Accordingly, its statement However, cartilage. dence of dislocated inadequate, specific its or bases is sons concedes, warranted Secretary remand is instability of knee is finding of no evidence higher whether a for the to discuss Board Id.; Butts v. clearly erroneous. rating was warranted under DC disability (1993) (en 532, Vet.App. 5 534 of, semilunar, (“Cartilage, 5259 removal banc) (Court findings reviews fact under which when there symptomatic”), re “clearly the erroneous” standard of the symptoms are associated with removal Derwinski, 49, view); Vet.App. v. 1 Gilbert cartilage. Schafrath, See of semilunar (“ finding “clearly A is errone (Board all must Vet.App. at discuss although there is evidence to ous” when by evi reasonably raised the regulations it, reviewing court on the en the support dence). Although the Board mentioned and tire evidence is left with definite 5259, failed address evidence it that a has been firm conviction mistake ” dislocation, swelling, pain right and knee (quoting United States committed.’ not Co., explain why they evidence Gypsum of, (1948))). semilunar, sympto- removal 525, Although “cartilage, 92 L.Ed. 746 S.Ct. Hudgens’s The Board’s failure to the Mr. 10% effective matic.” DC 5259. 22, of reasons or do so renders its statement November and warrants remand. inadequate bases raise, remand,

Id. On Hudgens may KASOLD, Judge, in dissenting Chief address, his argument and the Board must part concurring part: 5258, of DC as regarding applicability respectfully majori- I dissent from the argument or evidence any well as other 4.71a, ty’s that decision 38 C.F.R. of the remanded matter. support offered (2013), not apply does 529, Kay Principi, See Vet.App. replacements. That anything DC 5055 is (2002). scope but clear in its is reflected question fact that it does not answer the CONCLUSION IY. to whether it covers total knee re- Upon foregoing, consideration of the placements par- or whether it also covers 26, part that of the Board’s December See, e.g., Bell Atl. replacements. tial knee disability denied a decision FCC, Tel. Cos. v. 131 F.3d degenerative rating greater than 10% for (D.C.Cir.1997) (noting ambiguity is a joint right disease of the with accom- question pre- conclusion reached when the panying prior limitation of extension sented is not answered “at the level of November denied dis- Ambiguity also is re- language”). literal greater than 10% for insta- ability rating appellant flected the fact the has sub- right prior to November bility of rating partial mitted 11 Board decisions ASIDE, the matter 2008 is SET replacements under DC as well adjudication. REMANDED for further Secretary fact that as the stated at Board’s part uphold- That of the decision argument identify only oral that he could Hudgens’s of Mr. 10% ing the reduction finding ap- Board decisions that DC 5055 disability rating right instability 24, plies only replacements, to total knee from November to November being now on 2009, REVERSED, appeal the Board decision is and the matter is 3.7 REMANDED for the Board to reinstate of the reported majority’s year, while this case involves 14 7. The concern that the Board de- in the record and their cita- interpreting cisions are not Kyhn tion to majority question, and the of those are (Fed.Cir.2013), which held that the Court contrary Secretary’s interpretation to the instance, per- find in the first cannot facts litigation. Tropf preferred in this noted that plexing. DC 5055 addresses knee Because "unchallenged practice historical any to it be- without reference practice evidence that the is not ing replacements, limited to full knee we can ’,” (emphasis 'correct n. 1 judicial take notice how the and should added), regula- in the context of a but that is interpreted this DC. See Smith v. Board has practice. support De- tion does Derwinski, (1991) (Court efforts, majority’s they cre- spite the cannot subject "may judicial take notice of facts not exist; clarity clarity does not ate where ignore dispute”). To to reasonable (DC 5055) question regulation in this case interpretations ignore the Board’s is to histo- scope decidedly unclear in its as it could is ry interpretation of this DC and to foster of replacements, and partial cover full or knee inequitable application. inconsistent and only sup- interpretations the Board's varied majority's Express The citations to Federal The port that conclusion. Board Holowecki, Corp. v. 552 U.S. 128 S.Ct. interpreta- reflect that there is consistent (2008) Tropf 10 and v. 170 L.Ed.2d any Given the lack of con- Nicholson, (2006) tion of DC 5055. Vet.App. inap- 20 317 interpretation, we should Brown degree sistent posite. of Holowecki involved some Gardner, 175,000 inconsistency inquiries per 115 S.Ct. in over v. See opinions. General tary, con- or VA Counsel clarity of in DC 5055 is The lack 7104(c). Here, § there is no Secretary has fact that the U.S.C. firmed the (until judicial ruling or to- being specific statute that no action informed the Court There day) the issue before the Court. errant on modify purportedly the 11 taken to or in- opinion General Counsel and unmis- is no VA based on clear only Secretary. We have error, struction of the they or are other- takable because many, many years erroneous, regulation a written says which much clearly wise 11 Board decisions that ago, and at least Secretary’s litigation position— about the partial to cover interpreted DC 5055 scope the have majority’s the decision—that and only 3 that have replacements and Succinctly face. knee of 5055 is clear on its DC (1) solely to total it as limited stated, interpreted “Knee re- DC 5055 addresses replacements.8 knee nothing and the placement (prosthesis)” replacement it to total DC restricts circumstances, there is no such Under partial replacement, to a opposed as regulation that the any finding room for (2) interpreted the Board has DC 5055 and clearly replace- is limited to total knee times, replacements full knee to address ments, and there should be no room at other and ruling permits inequitable ap- an any times, interpreta- with the more consistent on the dependant of DC 5055 plication being tion DC particular judge veterans law whim of the replacements! decision, rendering particularly a Board Secretary the does not intend renders the final decision for when The Board clearly would be erroneous Secretary questions all in matters correct what the benefits, he would subject presumably decisions—action affecting provision the of regulation clearly if the were limited such bene- take governing to the statutes replacements, purported as judicial rulings, as well as to total fits and related See Secretary litigation.9 in this instructions of the Seere- regulations, VA reasonable); (1994), Vet.App. v. noted in the text was Webb 130 L.Ed.2d 462 (1994) my (remanding dissent—which would then render for Board to con- of interpretation, regulations light "correct” until and unless interpretation of VA sider properly is amended thereafter. statutory regulations provisions); of other Derwinski, (1990) Payne Vet.App. majority’s The view that the Board does not 8. (same). majority appears to confuse the regulations wholly interpret inconsistent concept prece- are not that Board decisions and, precedent, contrary their with our does dential with the fact that Board assertions, supported by the statutes interpret regulations, the fact that indeed regulations governing jurisdiction of represent Secretary's interpretations those (Board § deci Board. See 38 U.S.C. Secretary clari- view until and unless applicable provisions rendered on of sions are instruction, regulation or issues an fies see, regulation); e.g., law and Mariano v. Prin 7104(c), (2) § the VAGeneral Coun- 38 U.S.C. (2003) (remanding Vet.App. cipi, 17 id., contrary opinion, sel renders a possible the two inter for Board to address judicial- interpretation Board’s is overturned 5201, noting pref pretations DC that "it is (court's ly, scope see 38 U.S.C. Secretary ini erable for the to undertake the review). matter”); of this Hatlestad tial consideration Derwinski, (1991) (re colleagues My misconstrue the intent be- manding interrela for Board to address the my noting that the has indicat- hind tionship regulatory provisions and re of five any will not take action to correct ed he language apparent conflicts in the solve misapplied have Principi, Board decisions that provisions); those see also Bellezza interpret- it be (reviewing as he now states should the inaction not to invite such interpretation ed. I note whether Board’s

567 (Board may § (stating 7111 revise decisions the [Gardner ] U.S.C. canon ‘mod on clear and unmistakable error analysis’)”); based the traditional ifies] Chevron 7103(c) (CUE)); same); (essentially Brown, (Fed. § 1516, Smith v. 35 F.3d 1523 may Cir.1994) § revise Board de- (Secretary 5109A (noting that the canons of statu CUE). cisions based on tory interpretation apply to interpreting regulations). generally Although deference is due Secretary interpretation of his own stated, Succinctly in the face of inconsis the Board reflect regulations, decisions tent interpretations of a regulation, there Secretary that the not have a consis does is no basis to defer to the Secretary’s Chevron, U.S.A., tent interpretation. See proffered interpretation, see Thomas Jef Inc., Council, Inc. v. Natural Res. Def. Shalala, 504, 515, Univ. v. 512 U.S. ferson 837, 842-43, 2778, U.S. 104 S.Ct. 2381, 114 S.Ct. 129 L.Ed.2d 405 (1984) (holding L.Ed.2d 694 in the (“[A]n agency’s interpretation of a statute intent, congressional absence of a court or prior that conflicts with a agency’s interpretation must defer to an interpretation is ‘entitled to considerably long interpretation a statute as as the less consistently deference’ than a held permissible based on a construction of the ....”) added) (in agency view (emphasis statute); Robbins, see also Auer v. omitted) quotation ternal marks (quoting 452, 461-62, 905, S.Ct. Cardoza-Fonseca, INS v. 480 U.S. (1997) (noting Secretary’s L.Ed.2d 79 liti 446 n. S.Ct. L.Ed.2d 434 “ gation position may not be a ‘post hoc (1987)); see also Christopher v. Smith- rationalization’ agency advanced an — U.S.-, Kline Beecham Corp., seeking past agency to defend action S.Ct. 183 L.Ed.2d 153 (internal against attack.” citations omit (noting practice deferring to an “[o]ur ted)). agency’s interpretation of its own ambigu my In opinion, this is when Gardner regulations ous ... creates risk that trumps with regard regulatory Chevron agencies promulgate will vague open- Gardner, interpretation. See Brown v. regulations they ended can later inter S.Ct. fit”), pret they ambiguity (1994) (“[I]nterpretive L.Ed.2d 462 doubt interpreted should be light most is to be in the favor resolved veteran’s veteran, favorable see Gardner and ”); .... see also Heino v. 683 Smith, supra. both (Fed.Cir.2012) (noting F.3d 1379 n. 8 Although to an un- points lack clarity on how fits with Gardner Chevron, signed support interpreta- bulletin in of his “Nielson v. Shin- comparing tion, seki, (Fed.Cir.2010) this bulletin does not constitute a 607 F.3d opinion General Counsel or instruction to (stating canon ‘is [Gardner] Secretary; according- the Board from the applicable interpretive guide after other exhausted, Board, ly, binding the bulletin is not on the including lines have been Chev ’), ron with which renders final for the Sec- Disabled Am. Veterans v. Gob (Fed.Cir.2000) (c). er, 7104(a), retary. See 38 U.S.C. action, law, highlight very but to the fact that the that when called to the attention of later conclusion, ambiguity precludes compels of DC action. to which such reviewers differ, Fugo could not that the reasonable minds Cf. ("CUE very manifestly specific is a and rare kind of result would have been different error, original)). (emphasis 'error.' It kind of for the error." is the of fact but cu os the remainder of the above, regard to indeed am With DC 5055 is

As noted decision, I would Gard I that even when accordingly, majority note biguous; ner, disability reverse the reduction the Board consid- applies, should readju- for the matter rating, and remand to another rating by analogy whether er I further therewith. dication consistent disability rat- higher a provide would panel our note that because here, where DC might the case ing, as be holding would be such a precedential, overlap with 38 C.F.R. appears unless Secretary until and binding on the (2013). a, Accord- § 4.71 5256-5263 DCs necessary process he undertook the majori- part ingly, agree I Org. See Nat’l regulation. his revising decision, the reversal of the including ty Advocates, Sec’y Inc. v. Veter Veterans rating, and the remand. reduced (Fed. 1328, 1331-32 Affairs, ans Cir.2013) a change that in order to (noting Court deci precedential after

sion, Secretary must follow notice-and- requirements);

eomment Suozzi (“VA is bound controlling precedential deci

to follow the Court.”).

sions of this

Case Details

Case Name: Michael A. Hudgens v. Sloan D. Gibson

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Jun 27, 2014

Citation: 26 Vet. App. 558

Docket Number: 13-0370

Court Abbreviation: Vet. App.