Boyer v. West

• Decision Date: 10 April 2000
• Parties: (Fed. Cir. 2000) GERALD BOYER, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee. 99-7079 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1351

210 F.3d 1351 (Fed. Cir. 2000)

GERALD BOYER, Claimant-Appellant, v. TOGO D. WEST, JR., Secretary of Veterans Affairs, Respondent-Appellee.

United States Court of Appeals for the Federal Circuit

99-7079

DECIDED: April 10, 2000

Appealed from: United States Court of Appeals for Veterans Claims Judge Kenneth B. Kramer

Michael E. Wildhaber, The Law Offices of Wildhaber & Associates, of Washington, DC, argued for claimant-appellant. With him on the brief was Daniel D. Wedemeyer.

Laureen D. Kapin, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen; Director; Anthony H. Anikeeff, Assistant Director; and Gerald M. Alexander, Attorney. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel, and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before RADER, CLEVENGER, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

Gerald Boyer appeals from the October 8, 1998 and January 27, 1999 decisions of the United States Court of Appeals for Veterans Claims (the "CAVC")¹ denying his claim for a compensable rating evaluation for service-connected left-ear hearing loss.² Because we find that 38 U.S.C. § 1160(a)(3) (1994) plainly speaks to the issue and precludes any consideration of Mr. Boyer's right-ear hearing loss for the purposes of evaluating his service-connected hearing loss in his left ear, we affirm.

I.

Boyer served on active duty in the infantry of the United States Army from October 10, 1967 to December 11, 1969. Almost 25 years after his discharge, Boyer applied to the Department of Veterans Affairs (the "Agency") for service connection for hearing loss in both ears. On March 23, 1995, the Regional Office (the "RO") for the Agency granted Boyer service connection for the hearing loss in his left ear. The RO denied Boyer service connection, however, for the hearing loss in his right ear. The RO determined that Boyer had not established that any hearing loss in his right ear existed at the time he was discharged. As for Boyer's left-ear hearing loss, the RO rated the loss as zero-percent disabling. ³

Boyer appealed the RO's decision to the Board of Veterans Appeals (the "Board"). After considering Boyer's testimony that he was exposed to high noise levels in both ears during his military service, the Board affirmed the RO's decision. The Board first determined that Boyer had not offered any competent medical evidence to support his claim for service connection for his hearing loss in his right ear. The Board then agreed with the RO that under 38 C.F.R. § 3.383 (1988) and its enabling statute, 38 U.S.C. § 1160(a)(3), Boyer's right-ear hearing loss could not be considered in rating his service-connected left-ear hearing loss, because the right-ear loss was less than total. Instead, the Board concluded that, for the purposes of evaluating the left-ear hearing loss, Boyer's right-ear hearing must be considered normal. As a result, the Board determined, Boyer was not entitled to a compensable rating for his left-ear loss.

Boyer appealed the Board's decision to the CAVC. On October 8, 1998, the CAVC affirmed. The CAVC initially agreed that Boyer's claim for service connection for the right-ear loss was not well-grounded, based on the evidence presented in the record. Relying on 38 U.S.C. § 1160(a) and 38 C.F.R. § 4.85, the CAVC then affirmed the Board's decision on Boyer's claim for a compensable rating for his service-connected left-ear hearing loss. The court noted that although the Agency general counsel's opinion relied upon by the government had not issued at the time of its decision, the Board's conclusions were nevertheless reasonable and entitled to deference. On January 27, 1999, the court granted Boyer's motion for reconsideration, but again affirmed the Board's decision. After the CAVC entered its judgment, Boyer filed a timely appeal with this court.

II.

A.

This court has limited jurisdiction in reviewing the decisions of the CAVC. Our authority is limited to deciding all relevant questions of law, including matters of statutory interpretation. See 38 U.S.C. § 7292(d)(1). We can set aside a regulation or interpretation of a regulation relied upon by the CAVC that we find to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitation, or in violation of a statutory right; or (D) without observance of procedure required by law." Id. In general, however, this court may not review factual determinations or the application of a specific set of facts to a law or regulation. See 38 U.S.C. § 7292(d)(2); Anglin v. West, 202 F.3d 1343, 1345 (Fed. Cir. 2000).

B.

As this court noted in Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000), a veteran seeking disability benefits must establish: (1) status as a veteran; (2) the existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of the disability; and (5) the effective date of his disability. "Disagreement between the Agency and the veteran about one or more of these elements may create a dispute which is resolved by an Agency decision as to whether the veteran does or does not have legal entitlement to a particular benefit." Id. (citing Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998)). If not satisfied, the veteran may appeal the Agency decision, first to the Board and then to CAVC. See id.

Boyer's dispute with the Agency concerns the fourth element of his application, the degree of his disability. Boyer argues that the Agency's rating schedule for hearing loss promulgated under 38 U.S.C. § 1155 improperly treats Boyer's right-ear hearing as normal for the purposes of evaluating his service-connected left-ear hearing loss. Based on this treatment, the Agency determined that Boyer's left-ear hearing loss was zero-percent disabling. Boyer also challenges the Agency's interpretation of 38 U.S.C. § 1110, which provides that "[f]or disability resulting from personal injury suffered . . . in line of duty, . . . in the active military . . . service . . . the United States will pay to any veteran thus disabled . . . compensation as provided in this subchapter."

According to Boyer, Congress left the term "disability" in these statutes without a clear definition or meaning, and the term is similarly undefined in the Agency's regulations and rating schedules concerning disability compensation. In this absence of a definition in either the statutes or the regulations, Boyer contends, the definition announced by the CAVC in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) controls. In Allen, the CAVC held that

the term 'disability' as used in [section] 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated.

Id. at 448.

Under this definition, Boyer concludes, the Agency committed a clear error of law. Boyer argues the error as follows. Hearing is inherently a bilateral ability; one's relative ability to hear in each ear affects one's overall ability to hear. Thus, a veteran's overall impairment of earning capacity from service-connected hearing loss in one ear is necessarily affected by any hearing loss in the other ear, even if the loss is less than total and not service-connected. By limiting its consideration of hearing loss in the other ear to total loss if the loss is not service-connected, the Agency failed to satisfy its duty to compensate veterans for impairment of earning capacity. In sum, the Agency should have considered his right-ear hearing loss when evaluating his rating for his left-ear loss, and erred when it treated his right-ear hearing as normal because Boyer had failed to establish that the right-ear loss was service-connected.

Boyer recognizes, correctly so, that this court must generally defer to an agency's reasonable interpretations of an ambiguous statute under Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984). Nevertheless, Boyer argues that the agency must interpret any ambiguity in the statute in the veteran's favor. See Allen, 7 Vet. App. at 439; McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). Because the Agency's interpretation of the relevant statutes is less favorable to the veteran than the alternative the veteran proposes, Boyer asserts, this court must conclude that the Agency's interpretation is invalid.

Boyer argues one further point. Some time after the CAVC issued its decision in this case, the Agency promulgated a new regulation, to be codified at 38 C.F.R. § 4.85(f). Boyer asserts that the regulation "is nothing more than the Secretary's tardy attempt to codify his previously unwritten policy." As a result, Boyer concludes, if the court determines that the Agency's decision, based on the Agency general counsel's opinion, is contrary to law, it should also hold that section 4.85(f) is also contrary to law.

We must respectfully disagree. As an initial matter, we certainly agree with Boyer that when we find an ambiguity in a veterans' benefit statute, "'interpretative doubt is to be resolved in the veteran's favor.'" McKnight, 131 F.3d at 1485 (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)). At the same time, we have also recognized that a veteran "cannot rely upon the generous spirit that suffuses the law generally to override the clear meaning of a particular provision." Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994). As to the...