Gardner v. Brown

Citation5 F.3d 1456
Decision Date13 September 1993
Docket NumberNo. 92-7025,92-7025
PartiesFred P. GARDNER, Claimant-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Joseph M. Hannon, Jr., Thompson, O'Donnell, Markham, Norton & Hannon, Washington, DC, argued for claimant-appellee.

Julie A. Shubin, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for respondent-appellant. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Mary Mitchelson, Deputy Director. Also on the brief were Donald E. Zeglin and Tresa Schlecht, Dept. of Veterans Affairs, Washington, DC, of counsel.

Before ARCHER, MICHEL, and LOURIE, Circuit Judges.

ARCHER, Circuit Judge.

The Secretary of Veterans Affairs appeals from a judgment of the United States Court of Veterans Appeals (Veterans Court), No. 90-120 (entered Jan. 13, 1992). The Veterans Court reversed the decision of the Board of Veterans' Appeals holding that Gardner is not entitled to disability compensation, and remanded the case for further proceedings. 1 Vet.App. 584. We affirm.

I.

Fred P. Gardner, a veteran of the Korean conflict, underwent back surgery at a Department of Veterans Affairs (VA) 1 medical facility for a non-service-connected back condition. He asserts that as the result of the surgery he developed severe nerve damage in his left leg, resulting in pain, atrophy, and weakness, and that since the surgery his left ankle is severely impaired requiring him to wear a leg brace. Accordingly, Gardner filed a claim for disability compensation with the VA Regional Office in Waco, Texas.

The VA Regional Office denied Gardner's claim, and he sought review by the Board of Veterans' Appeals (BVA). The BVA held that in order for a veteran to receive disability compensation for an injury resulting from VA medical treatment under 38 U.S.C. Sec. 1151 (Supp. III 1991) (formerly Sec. 351 2) and 38 C.F.R. Sec. 3.358 (1992), 3

at least two elements must be present. First, there must be some demonstration in the record that the treatment rendered resulted in some untoward result or that the treatment was negligent or showed error in judgment, lack of proper medical skill or some other instance of indicated fault. Second, it must be shown that, as a result of the aforementioned accident, negligence, etcetera there was additional disability.

The BVA concluded that Gardner was not entitled to disability compensation, finding that he did not prove that he suffered injury as the result of negligent treatment or an accident occurring during his treatment. Gardner appealed the decision of the BVA to the Court of Veterans Appeals.

The Veterans Court held that 38 C.F.R. Sec. 3.358(c)(3) impermissibly imposed a fault or accident requirement in addition to the prerequisites for relief set out in 38 U.S.C. Sec. 1151. The court reasoned that the plain language of the statute lacked a fault or accident element, that the legislative history was ambiguous as to fault or accident, that Congressional reenactment of the statute while the regulation was in force was not Congressional ratification of a fault or accident element, and that no deference was owed the VA's interpretation. The Veterans Court struck down 38 C.F.R. Sec. 3.358(c)(3) as contrary to 38 U.S.C. Sec. 1151 and beyond the authority of the VA. 4 The Veterans Court therefore reversed the BVA's decision denying Gardner compensation and remanded for a redetermination of eligibility.

The Secretary appeals from this decision.

II.

The sole issue presented in this appeal is whether the regulation, 38 C.F.R. Sec. 3.358(c)(3), which requires a veteran to prove that he suffered disability as the result of negligent treatment or an accident occurring during treatment, is an invalid implementation of 38 U.S.C. Sec. 1151. 5 The resolution of this question depends on the construction of 38 U.S.C. Sec. 1151, which is a matter of law that we review de novo. 38 U.S.C. Sec. 7292(d)(1) (Supp. III 1991); Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991).

A.

"The starting point in interpreting a statute is its language, for 'if the intent of Congress is clear, that is the end of the matter.' " Good Samaritan Hosp. v. Shalala, --- U.S. ----, ----, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993) (alteration omitted) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)).

The statute at issue in this case, 38 U.S.C. Sec. 1151, provides for compensation to veterans who are disabled by VA medical treatment or examination or vocational training. It states in pertinent part:

Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation ..., awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter ... shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.

38 U.S.C. Sec. 1151.

The interpretation of the statute asserted by the VA appears at 38 C.F.R. Sec. 3.358 (1992). The regulation provides that a veteran must prove he suffered a disability, disease, or injury, or aggravation thereof, as the result of a specified VA service, and not merely coincidental with it. 38 C.F.R. Sec. 3.358(c)(1). Furthermore, the VA will not pay compensation for "the continuance or natural progress" of a disease or injury treated by the VA. Id. Sec. 3.358(b)(2). But the provision of the regulation at issue in this appeal and struck down by the Veterans Court requires the veteran to prove additionally that the VA treatment was faulty or that an accident occurred during treatment:

Compensation is not payable for either the contemplated or foreseeable after results of approved medical or surgical care properly administered, no matter how remote, in the absence of a showing that additional disability or death proximately resulted through carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of the Department of Veterans Affairs. However, compensation is payable in the event of the occurrence of an "accident" (an unforeseen, untoward event), causing additional disability or death proximately resulting from Department of Veterans Affairs hospitalization or medical or surgical care.

38 C.F.R. Sec. 3.358(c)(3).

Unlike the regulation, the statute does not on its face include an element of VA fault or accident as a condition to compensation. Pursuant to 38 U.S.C. Sec. 1151, the VA "shall" award service-connected compensation where a veteran shows he has suffered an "injury, or an aggravation of an injury" and that this injury or aggravation is the result of one of four VA services: (1) hospitalization; (2) medical or surgical treatment; (3) vocational rehabilitation; or (4) an examination.

The statute has two limitations to the mandatory grant of disability compensation to a veteran undergoing one of the four services listed above. First, the injury or aggravation of injury must be "the result of" one of the services. Second, the injury or aggravation of injury must not be "the result of" the veteran's own willful misconduct. The statute does not expressly require the veteran to prove the poor nature or lack of quality of the treatment received, or the occurrence of some mishap during treatment. Rather, compensation must be paid where the veteran proves only that he suffered an injury as the result of a specified treatment and not as the result of his own willful misconduct.

The Secretary argues that the statutory language "as the result of" is ambiguous because the statute "fails to define or explain, in any manner, what is meant by the words 'as the result of.' " From this the Secretary reasons, it is likely that "Congress, as evidenced by the legislative history of the statute, intended that the VA limit compensation payments to those veterans with disabilities proximately caused by VA fault or through accidents."

We reject, however, the Secretary's premise--that the statutory language must be deemed ambiguous because the statute does not contain an express definition of the words at issue. To be sure, Congress may define terms in a statute. E.g., 38 U.S.C. Sec. 1101 (Supp. III 1991). But Congress is not required to define each and every word in a piece of legislation in order to express clearly its will. A phrase appearing in the context of a statute may be unambiguous where it "has a clearly accepted meaning in both legislative and judicial practice," West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991), even though it is not explicitly defined by the statutory text. Indeed, terms are defined in statutes often for the very reason that such terms would be ambiguous without a statutory definition. That a term is not defined in a statute does not mean that the term is per se ambiguous.

We are convinced that "as the result of" as used in 38 U.S.C. Sec. 1151 mandates only a causation requirement. See Webster's Third New Int'l Dictionary 1937 (1971) (defining "result" as "a consequence, effect, issue, or conclusion"). Under section 1151 the specified treatment must cause the injury or the aggravation of injury. And willful misconduct of the veteran may not be a cause of the injury or aggravation.

The Secretary tenuously argues that causation in this instance may be defined as fault. Causation and fault however are fundamental, distinct concepts in the law. See generally William L. Prosser,...

To continue reading

Request your trial
40 cases
  • Wolfe v. McDonough
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • March 17, 2022
    ...case, the Veterans Court and this court can consider a regulation's validity. 38 U.S.C. §§ 7261(a)(3), 7292 ; see, e.g., Gardner v. Brown , 5 F.3d 1456 (Fed. Cir. 1993). We additionally note that Ms. Wolfe could have petitioned this court (and still can) for review of the similar payments r......
  • Bowling v. McDonough
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • June 28, 2022
    ...a regulation's validity." Wolfe , 28 F.4th at 1358 (first citing 38 U.S.C. §§ 7261(a)(3), 7292 ; and then citing Gardner v. Brown , 5 F.3d 1456 (Fed. Cir. 1993) ).Based on those authorities, we hold that, even if the Board could not grant appellants their requested relief of declaring § 3.3......
  • Bio-Medical Applications of Aquadilla, Inc. v. United States
    • United States
    • U.S. Claims Court
    • December 19, 2014
    ...conflict with statutes that govern the relevant activities of the VA. One example of this principle is found in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 511 U.S. 115 (1994). Citing Miller, the United States Court of Appeals for the Federal Circuit noted that a regulation limit......
  • McCulley v. US Dept. of Veterans Affairs
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • May 10, 1994
    ...§ 1151. On September 13, 1993, the Federal Circuit issued its opinion, affirming the invalidation of 38 C.F.R. § 3.358. Gardner v. Brown, 5 F.3d 1456, 1459 (Fed.Cir.1993) (finding, inter alia, that "38 U.S.C. § 1151 unambiguously does not require the veteran to prove that the VA treatment w......
  • Request a trial to view additional results
1 books & journal articles
  • Dynamic Statutory Interpretation.
    • United States
    • University of Pennsylvania Law Review Vol. 143 No. 6, June - June - June 1995
    • June 1, 1995
    ...exception implies that compensation is available only when the VA is at fault. See Fred P. Gardner, 1 Vet. App. 584, 587 (1991), aff'd, 5 F.3d 1456 (Fed. Cir. 1993), and aff'd, 115 S. Ct. 552 (1994). (68) Gardner, 115 S. Ct. at 556 (quoting Russello v. United States, 464 U.S. 16, 23 (1983))......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT