Duran v. McDonough
| Docket Number | 20-5759 |
| Decision Date | 20 July 2023 |
| Parties | Gilbert R. Duran, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Argued November 15, 2022
On Appeal from the Board of Veterans' Appeals
Stephani M. Bennett, with whom John S. Berry and Emily A Weiss were on the brief, all of Lincoln, Nebraska, for the appellant.
Nathan Bader, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief Counsel; Joan E. Moriarty, Deputy Chief Counsel and Crystal Liu were on the brief, all of Washington, D.C for the appellee.
Before ALLEN, TOTH, and JAQUITH, Judges.
Army veteran Gilbert R. Duran is entitled to VA disability compensation for Parkinson's disease. The compensation rating for this condition is governed primarily by diagnostic code (DC) 8004. See 38 C.F.R. § 4.124a (2023).[1] In the decision under review, the Board replaced the minimum 30% rating Mr. Duran had been receiving under DC 8004 with a combined 50% rating for three distinct Parkinson's manifestations evaluated under different DCs. These three ratings accounted for only some of his confirmed Parkinson's manifestations. This appeal raises a narrow question about the proper reading of DC 8004: When some manifestations of Parkinson's disease are rated as compensable and total more than 30% under DCs other than DC 8004, but some manifestations remain that are not rated as compensable, do the ratings under the other DCs replace or combine with DC 8004's minimum 30% rating?
Both parties offer a plain reading of the regulation to support their view. The Secretary agrees with the Board that DC 8004's minimum 30% rating should be replaced when ratings available under other DCs exceed it. Mr. Duran argues that compensable ratings under other DCs should be added to DC 8004's minimum 30% rating so long as additional ascertainable Parkinson's manifestations exist that are not otherwise compensable under the rating schedule. Based on the relevant text and regulatory context and the broader policies governing VA's rating scheme, we agree with Mr. Duran on the regulation's plain meaning. We therefore reverse the Board's discontinuance of the minimum 30% rating under DC 8004 and remand the matter-along with a PTSD rating claim that we briefly address at the end of our opinion-for further proceedings.
DC 8004 and its accompanying guidance fall under the rating schedule for neurological conditions and convulsive disorders and have existed in their current form since just after World War II. See 29 Fed.Reg. 6718, 6750 (May 22, 1964) (codifying "the 1945 rating schedule"). In fact, DC 8004 still refers to Parkinson's as paralysis agitans. Parkinson's disease "is a chronic, slowly progressive central nervous system disorder characterized by muscular rigidity, a tremor of resting muscles, slow and decreased voluntary movements and positional instability." VA ADJUDICATION PROCEDURES MANUAL (M21-1), Pt. V, sbpt. iii, ch. 12, sec. C.3.a. It has so far proven incurable.[2] DC 8004 provides a single "[m]inimum rating" of 30%. 38 C.F.R. § 4.124a. The preamble to the rating schedule instructs:
With the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves.
Id. The note following DC 8025 further instructs:
Army veteran Gilbert Duran served from 1969 to 1971, including a year-long deployment to Vietnam, where he was wounded. In January 2017, he sought service connection for Parkinson's disease as related to presumptive herbicide exposure. That spring, a VA examiner confirmed a diagnosis of Parkinson's disease and found that Mr. Duran had "motor manifestations" of the condition, including stooped posture, balance impairment, slowed motion, speech changes, and tremors in his upper and lower extremities on the right side. R. at 896. The examiner also found that Mr. Duran had mild depression, partial loss of smell, moderate sleep disturbances, mild difficulty chewing and swallowing, moderate constipation, moderate sexual dysfunction, mild stumbling issues, and moderate jaw tremors.
VA granted service connection for Parkinson's disease, assigning a 30% rating under DC 8004 for "ascertainable residuals."[3] R. at 858. The rating decision stated that "[h]igher evaluations are based on more severe residuals" but said no more than that. Id. Mr. Duran appealed to the Board, seeking a higher Parkinson's rating. The case followed the usual administrative appeals process.
In an April 2020 decision, the Board increased Mr. Duran's rating because his single 30% rating under DC 8004 didn't fully capture the severity of his Parkinson's disease. The method by which the Board increased Mr. Duran's rating is the crux of the dispute here. Referring to the preamble of § 4.124a, the Board found that, if "there are ascertainable residuals that can be rated under a separate [DC], and the combined disability rating resulting from these residuals exceeds 30 percent, then these separate ratings will be assigned in place of the minimum rating assigned under [DC] 8004." R. at 16-17 (emphasis added). The Board also referred to § 4.120 ("Evaluations by comparison") to explain that neurological and convulsive disorders are rated in proportion to the impairment of motor, sensory, or mental function, meaning that evaluations are made by comparison to the appropriate rating criteria.
On this reasoning, the Board replaced Mr. Duran's single 30% rating with separate ratings for three manifestations-a 40% rating for a right upper extremity condition under DC 8513 (paralysis of a major extremity), a 10% rating for a right lower extremity condition under DC 8520 (paralysis of the sciatic nerve), and a 10% rating for moderate jaw tremors under DC 8205 (paralysis of the fifth trigeminal cranial nerve). See R. at 6 (). The DCs for these manifestations all fall under the rating schedule for neurological diseases and convulsive disorders and combine to a rating of 50%. See 38 C.F.R. § 4.124a.
The Board also found that the veteran had five other manifestations of Parkinson's disease, including constipation, depression, sexual dysfunction, a chewing and swallowing condition, and a speech condition. It determined that a separate rating wasn't permitted for depression because that "would violate the prohibition on pyramiding as the Veteran's symptoms are already contemplated in the 30% rating assigned for [his] service-connected PTSD." R. at 18. The Board similarly found that a separate rating for sexual dysfunction was unwarranted because special monthly compensation for loss of use of a creative organ had already been granted. Finally, the Board denied separate compensable ratings for the veteran's remaining manifestations- constipation under DC 7319 (irritable colon syndrome), his chewing and swallowing condition under DC 8209 (paralysis of the ninth (glossopharyngeal) cranial nerve), and his speech condition under DC 8210 (paralysis of the tenth (pneumogastric) cranial nerve)-because none of those conditions met the requirements for minimum compensable ratings under their relevant DCs. This appeal followed.
The dispute here requires us to interpret 38 C.F.R. § 4.124a as it relates to Mr. Duran's claim for an increased Parkinson's rating. Specifically, whether that provision requires VA to replace or add to the minimum 30% rating under DC 8004 when a veteran has some Parkinson's manifestations that are separately rated under other DCs and total more than 30%, and some Parkinson's manifestations that are not separately rated under other DCs as compensable.
Such interpretation is a task we undertake de novo. Tropf v Nicholson, 20 Vet.App. 317, 320 (2006). If the regulation's meaning is clear from its language, that is "the end of the matter." Brown v. Gardner, 513 U.S. 115, 120 (1994). The plain meaning of the text at issue is informed by the regulatory scheme and context of the provision. BO v. Wilkie, 31 Vet.App. 321, 328 (2019). And a regulation's text, structure, history, and purpose should be carefully considered before the Court concludes that a regulation is ambiguous and considers whether deference is warranted. Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019). Only if the regulation's text is genuinely ambiguous "after a court has resorted to all the standard tools of interpretation" does "the...
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