Donald SPICER (for Stephen Spicer), Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
No. 2013-7142.
United States Court of Appeals, Federal Circuit.
May 30, 2014.
1367
Before LOURIE, CLEVENGER, and CHEN, Circuit Judges. LOURIE, Circuit Judge.
[REDACTED] Suffolk next argues that, even if the Post is properly considered and Dr. Rhyne‘s testimony is properly excluded, summary judgment of invalidity should not have been granted. According to Suffolk, there are genuine factual issues concerning whether the Post disclosed every limitation in the contested claims. Specifically, it argues that “the exemplary files disclosed[-abc.html]were not in the context of a URL and did not provide additional information (beyond “abc.html“) communicating source, origin or location.” Appellant‘s Br. 42. Without expert testimony, however, Suffolk‘s position is mere attorney argument. And here, those attorney arguments are insufficient to undermine the credible testimony from Google‘s expert that “abc.html” is an identification signal.
Further, Suffolk argues broadly that summary judgment is inappropriate because Suffolk “can still attack Google‘s affirmative case (on cross-examination or otherwise).” Appellant‘s Br. 43. But these broad statements, without evidentiary support, are insufficient to make summary judgment inappropriate. To hold otherwise would improperly empower cross-examination with the ability to defeat nearly all motions for summary judgment. We refuse to endorse such a broad position.
We have considered Suffolk‘s remaining arguments regarding the district court‘s grant of summary judgment and find them unpersuasive.
Google bears the burden to show that there are no genuine issues of material fact. It has met that burden. And Suffolk‘s attorney arguments, with no affirmative evidence, are insufficient to undermine Google‘s showing. Thus, we affirm the district court‘s summary judgment of invalidity.3
CONCLUSION
We conclude that the district court did not err in its claim construction or its grant of summary judgment of invalidity. We thus affirm the district court.
AFFIRMED.
Garth Baer, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appellant. With him on the brief were Ronald L. Smith And Benjamin T. Sirolly.
Nicholas Jabbour, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, Martin F. Hockey, Jr., Assistant Director, and James Sweet, Trial Attorney. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Christina Gregg, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel were Christa A. Shriber and Y. Ken Lee.
Donald Spicer appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court“) affirming the decision of the Board of Veterans’ Appeals (“Board“) finding that Stephen R. Spicer (“Spicer“) was not entitled to an increased rating under
BACKGROUND
Spicer served on active duty in the Navy from February 1984 to February 1987. In
The Board denied Spicer‘s increased rating claim. It found that although Spicer‘s left finger disability was manifested by pain and limitation of motion, Spicer failed to meet the criteria for a compensable evaluation for a left finger disability under either DC 5227 or 5230.
Spicer then appealed to the Veterans Court, arguing that the Board failed to consider DC 5003. Spicer, 2013 WL 2902798, at *2. Spicer argued that DC 5003 assigns a 10% rating for either a single affected major joint or a group of affected minor joints and that
The Veterans Court affirmed the Board‘s decision, holding that the Board did not err by failing to consider DC 5003. Id. The Veterans Court found that “the DIP joint is not a major joint or minor joint group for the purpose of rating disabilities from arthritis.” Id. at *3 (citing
This appeal followed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans Court is limited by statute.
Section 4.71a of the VA regulations sets forth a schedule of disability ratings for impairments of the musculoskeletal system. See
Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate di-
agnostic codes, a rating of 10 [percent] is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.
Section 4.45(f) of the VA regulations, a section preceding the schedule of disability ratings for impairments of the musculoskeletal system, lays out the “factors of disability” for joints. See
As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:
...
(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints.
Spicer argues that degenerative arthritis in a single DIP joint results in a “group of minor joints affected by limitation of motion” and can entitle a veteran to 10% rating under DC 5003. Spicer asserts that a minor joint group is affected when one of its minor members is affected, just as the minor joint group is affected when two or more members are affected. Spicer argues that DC 5003 only establishes a 10% ceiling no matter how many minor joints in a minor joint group are affected, as long as the limitation of motion is otherwise noncompensable. Spicer contends that
The Secretary responds that DC 5003 provides that arthritis must result in a limitation of motion in two or more minor joints in order to justify a 10% rating. The Secretary contends that
We agree with the Secretary that the Veterans Court did not err in interpreting DC 5003 to require limitation of motion in more than one minor joint. The plain language of DC 5003, read in view of
Under DC 5003, when “the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 [per-
Section 4.45(f) states that “[f]or the purpose of rating disability from arthritis, ... multiple involvements of the interphalangeal ... joints ... are considered groups of minor joints, ratable on a parity with major joints.”
That interpretation is not contrary to the Supreme Court‘s mandate that “interpretive doubt is to be resolved in the veteran‘s favor.” Brown v. Gardner, 513 U.S. 115, 117-19 (1994). There is no ambiguity in DC 5003, and referencing
To the extent that Spicer‘s appeal raises an issue of application of DC 5003 and
CONCLUSION
We have considered Spicer‘s remaining arguments and conclude that they are without merit. Because the Veterans Court did not err in interpreting the governing regulation, we affirm.
AFFIRMED
Q.I. PRESS CONTROLS, B.V., Appellant, v. Michelle K. LEE, Deputy Director, United States Patent and Trademark Office, Appellee, and Quad/Tech, Inc., Cross-Appellant. Nos. 2012-1630, 2012-1631. United States Court of Appeals, Federal Circuit. June 9, 2014.