JOSEPH J. SNYDER, Clаimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
2020-2168
United States Court of Appeals for the Federal Circuit
June 9, 2021
TARANTO, Circuit Judge.
Appeal from the United States Court of Appeals for Veterans Claims in No. 19-3918, Judge William S. Greenberg.
JENNIFER ANN ZAJAC, Paralyzed Veterans of America, Washington, DC, argued for claimant-appellant. Also represented by LINDA E. BLAUHUT.
KYLE SHANE BECKRICH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK SCADDEN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before TARANTO, LINN, and CHEN, Circuit Judges.
Joseph Snyder served in the U.S. Army for less than 50 days in 1974—during the Vietnam era, a “period of war,”
In the Veterans Court, Mr. Snyder relied, to meet the fundamental requirement of service connection, solely on an argument about a VA regulation, adopted in 2008 and made final in 2009, that provides a рresumption of service connection for veterans with ALS if specified preconditions are satisfied.
The Veterans Court rejected Mr. Snyder‘s contention that the 90-day-service precondition is unlawful. We have jurisdiction to review that legal conclusion.
I
Mr. Snyder challenges the validity of a portion of
(a) Except as provided in paragraph (b) of this section, the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.
(b) Service connection will not be established under this section:
(1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service;
(2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran‘s own willful misconduct; or
(3) If the veteran did not have active, continuous service of 90 days or more.
This presumption is entirely a regulatory creation. Although Congress has enacted several provisions that establish service-connection presumptions applicable in certain circumstances, see, e.g.,
The Secretary‘s proposal and adoption of the regulation followed receipt of a VA-commissioned report by the National Academy of Sciences Institute of Medicine (IOM) that reviewed studies of the relationship of ALS to military service. See Institute of Medicine, Amyotrophic Lateral Sclerosis in Veterans: Review of the Scientific Literature (Nov. 2006) (IOM Report); see also Interim Final Rule, 73 Fed. Reg. at 54,691. The IOM Report notes that ALS is a neuromuscular disease that causes nerve cells in the brain and spinal cord to degenerate and, accordingly, is almost alwаys fatal. IOM Report at 1. It also states that, although about 5–10% of ALS cases are inherited, the cause of the remaining cases is still unknown. Id. Nevertheless, the IOM Report states, the scientific literature indicated that there was “limited and suggestive evidence of an association between military service and later development of ALS.” Id. at 3; see also id. at 35 (identical language in bold as final conclusion of the IOM Report).
Central to that conclusion in the IOM Report, see id. at 32–35, is a study by M.G. Weisskopf and colleagues published not long before the IOM Report. The Weisskopf study compared the incidеnce of ALS-related deaths among those with military service and those without. M.G. Weisskopf et al., Prospective Study of Military Service and Mortality from ALS, 64 Neurology (1) 32 (2005) (Weisskopf). The Weisskopf study analyzed a population (previously assembled for unrelated purposes) of 408,288 individuals, of whom 281,874 had served in the military, including during World War I, World War II, the Korean War, or the Vietnam War.1 Id. at 32. The study split those participants who had military service into equal “quintiles” according to years of service—and calculated the median length of service, meаsured in whole-number years, for the participants in each quintile. See id. at 33 (“The total number of years of service was categorized by quintile. . . . For total years served, this was done by assigning medians to each quintile and modeling the median values as a continuous variable.“); id. at 34 (table showing “Adjusted relative risk (RR) of ALS by years of military service, 1989–1998,” rows for no military service and each of five quintiles, by “Median years“).2 Considering factors like age, smoking, and alcohol intake that might have affected rates of ALS, the Weisskopf study found that the relative risk оf developing ALS was higher for those with military service than those without, that “[t]he increased risk of ALS was largely independent of the number of years served in the military,” and that the increased risk was “largely independent of the branch of military service, the years when service occurred, or the number of years served.” Id. at 34–35 (emphases added).
The 2006 IOM Report observes that, while other studies had focused only on the Gulf War, the Weisskopf study was “the first to suggest a relationship between military service before the Gulf War and ALS mortality.” IOM Report at 34. The report notes greater limitations of the оther studies reviewed, id. at 26–31, 35, but as to the Weisskopf study, it states that “overall it was a well-designed and well-conducted study” and that, despite “limitations inherent in an analysis of a cohort assembled
In accordance with the conclusions of the IOM Report and the Weisskopf study, the Secretary proposed an interim final rule—effective immediately but subject to notice and comment before adoption as a permanent rule—establishing a presumption of service connection for “any veteran who develops [ALS] at any time after separation from service.” Interim Final Rule, 73 Fed. Reg. at 54,691. The Secretary noted the observed link between ALS and military service and also found that it was “unlikely that conclusive evidence [of the causes of ALS] will be developed in the foreseeable future.” Id. Given the rapidly progressive and degenerative nature of the disease, as well as “continuing uncertainty regarding specific precipitating factors or events that lead to development of [ALS],” the Secretary determined that there would be “great difficulty” for veterans seeking benefits for ALS to prove service connection in the absence of the presumption. Id. at 54,692.
After explaining the basis for adopting a presumption at all, the Secretary enumerated three circumstances for which post-military-service ALS would not suffice to establish service connection. See id. First, service connection would not be established “if there is affirmative evidence that ALS was not incurred during or aggravated by” the veteran‘s military service—which is what justifies the “presumption” label. Id. (emphasis added); see also
As to the 90-day-service precondition, the Secretary reasoned:
Although the Weisskopf study relied upon by the IOM report concluded that veterans have an increased risk of developing ALS compared to civilians regardless of years of service, a minimum-service requirement of 90 days would not be inconsistent with the study‘s findings because the study focused on vеterans’ “years” of service and did not consider minimum periods of service. We believe that 90 days is a reasonable period to ensure that an individual has had sufficient contact with activities in military service to encounter any hazards that may contribute to development of ALS.
Interim Final Rule, 73 Fed. Reg. at 54,692. The Secretary noted that 90-day-service requirements also apply to presumptions of service connection for chronic and tropical diseases, citing
After receiving comments, the Secretary adopted the interim rule as a final rule, which was later adopted as
The ALS Association expressed support for this regulation and stated its belief that 90 continuous days of service in the military and a diagnosis of ALS are sufficient to establish presumptive service connection for that disease. New § 3.318 generally establishes presumptive service connection for ALS if a veteran had at least 90 continuous days of active military, naval, or air service and developed ALS at any time after separation from such service. We made no changes based on this comment.
Id. at 57,073.
II
Under the statute conferring jurisdiction on this court for this case, we must “hold unlawful and set aside” regulations that are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (4) without observance of procedure required by law.
A
In promulgating
Section 501(a) grants the Secretary the authority to “prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws,” including “regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws.”
Relying on
Here, the presumption of service connection for ALS created by
Mr. Snyder suggests that because
Mr. Snyder also points to
We therefore reject Mr. Snyder‘s argument that
B
Arguing that the 90-day-service requirement is “arbitrary and capricious,” Mr. Snyder contends that (1) the Secretary did not offer a reasonable justification for сomparing ALS to chronic and tropical diseases when imposing a 90-day-service requirement, id. at 31–37, and (2) the Weisskopf study found that military service was associated with an increased risk of ALS regardless of time served, id. at 37–39. Applying the deferential standard of review required for our assessment of this challenge, we must reject Mr. Snyder‘s argument.
Under
We have recognized that “treating like cases differently can be arbitrary and capricious,” Hansen-Sorenson, 909 F.3d at 1384 (emphasis added and internal quotation marks omitted), but whether cases are “like” is a matter initially for the agency, and on that question, as on other factual and policy questions, distinctions need not be based on “conclusive proof,” Carpenter, Chartered v. Sec‘y of Veterans Affairs, 343 F.3d 1347, 1353 (Fed. Cir. 2003). Our review of a regulation for compliance with the arbitrary-and-capricious standard is “deferential.” Prometheus Radio Project, 141 S. Ct. at 1158. We may not “substitute [our] own policy judgment” for that of the Secretary. Id.; see also McKinney v. McDonald, 796 F.3d 1377, 1383 (Fed. Cir. 2015). In reviewing a challenge like Mr. Snyder‘s, “[a] court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.” Prometheus Radio Project, 141 S. Ct. at 1158. Although “wе may not supply a reasoned basis for the agency‘s action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). We conclude that
The Secretary set forth most of his reasoning in announcing the Interim Final Rule. 73 Fed. Reg. at 54,691–92. The Secretary made clear that the question was what facts might justifiably support a presumption of the statutorily required element that a veteran‘s ALS is connected to “military service,” id. at 54,691, i.e., to “activities in military service,” id. at 54,692—more
The Secretary relied on the IOM report and particularly the IOM Report‘s description of the Weisskopf study as providing “limited and suggestive evidence” of an ALS association with military service, id. at 54,691, to conclude that “there is sufficient evidence indicating a correlation between ALS and activities in military service” to support “a presumption of service connection” for veterans with ALS, id. at 54,691–92. The Secretary simultaneously concluded, however, that the justified presumption was conditional on a minimum period of service of 90 days. Id. at 54,692. “[W]e believe that, for any shorter period, it is more likely than not that ALS was not associated with service.” Id.
The Secretary‘s rationale is easy to discern. First, the general logic is that the statutory requirement at issue is one of causal connection to aсtivities in military service and, in the absence of evidence to the contrary, at some point near the de minimis end of the spectrum of service length, there is too little time in service for there to have been enough activities in service to make the causal connection likely. See id. (deeming it appropriate to adopt “a reasonable period to ensure that an individual has had sufficient contact with activities in military service to encounter any hazards that may contribute to developmеnt of ALS“). That logic is reasoned and reasonable.
Second, focusing on the record regarding ALS, the Secretary found no reliable evidence of a correlation between ALS and service of periods as short as 90 days. Specifically, the crucial Weisskopf “study focused on veterans’ ‘years’ of service and did not consider minimum periods of service.” Id. (emphasis added). That reading of the Weisskopf study is supported by the study itself, which, as quoted above, makes clear that time measurements were in units of years, not аny smaller units, and which supplies no evidence of a service-ALS correlation for veterans with service of periods substantially shorter than a year.
Third, the Secretary concluded that 90 days was “a reasonable period to ensure” a minimum degree of contact with hazards that may contribute to development of ALS. Id. Specifically, the Secretary observed that Congress had used a 90-day-service period for its presumption of service connection for chronic and tropical diseases. Id. (citing
Mr. Snyder contends that the Secretary should have compared ALS to other prеsumptions having no minimum service requirements. Snyder Opening Br. at 36–37. But the presumptions Mr. Snyder points to, both statutory and regulatory, involve “exposure to a substance or set of substances with known risks, either directly or through presence in a particular place, such as Vietnam,” Secretary Response Br. at 39, or a type of circumstance (time as a prisoner of war) associated with specified
There was no evidence requiring the Secretary to make a different choice. Mr. Snyder has not pointed to such evidence in the rulemaking record but ignored by the Secretary. In fact, in adopting the Final Rule, the Secretary
noted that the ALS Association еndorsed the 90-day-service requirement, and Mr. Snyder has not identified any contrary comments that went unmentioned by the Secretary. Final Rule, 74 Fed. Reg. at 57,073. Supportive comments “in the rulemaking record” can “buttress[]” a finding that an agency‘s regulation is reasonable. Carpenter, 343 F.3d at 1355–56. Mr. Snyder also has not pointed to evidence that was readily available to the Secretary but not obtained. See CS Wind Vietnam Co. v. United States, 832 F.3d 1367, 1380 n.7 (Fed. Cir. 2016) (recognizing that “an agency‘s ‘failure to adduce empirical data that can readily be obtained’ can sometimes require setting aside an agеncy‘s decision” under the APA (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 519 (2009))). Indeed, the Secretary expressly “welcome[d] comments on any relevant peer-reviewed literature concerning ALS that ha[d] been published since the November 2006 IOM report.” Interim Final Rule, 73 Fed. Reg. at 54,692. And the Secretary was under “no general obligation . . . to conduct or commission [his] own empirical or statistical studies.” Prometheus Radio Project, 141 S. Ct. at 1160.
In these circumstances, neither the evidence nor logic required the Secretary to limit his options to either ignoring length of service altogether or declining to adopt a presumption at all. The Secretary could reasonably choose a familiar short period to avoid what he reasonably found would be too demanding an evidentiary standard (no presumption) or too lenient a standard (no minimum service period) for applying the statutory requirement of service connection to veterans with ALS. We conclude that the Secretary “reasonably considered the relevant issues and reasonably explained the decision” and made a choice within the “zone of reasonableness.” Prometheus Radio Project, 141 S. Ct. at 1158; see also McKinney, 796 F.3d at 1383–84 (upholding a regulation where the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action” (internal quotation marks omitted)). We therefore hold that the 90-day-service requirement of
III
For the foregoing reasons, the decision of the Veterans Court is affirmed.
The parties shall bear their own costs.
AFFIRMED