Nielson v. Shinseki

• Citation: 607 F.3d 802
• Decision Date: 07 June 2010
• Docket Number: No. 2009-7129.,2009-7129.
• Parties: Thomas M. NIELSON, Claimant-Appellant,v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

607 F.3d 802

Thomas M. NIELSON, Claimant-Appellant,v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2009-7129.

United States Court of Appeals, Federal Circuit.

June 7, 2010.

Kirsten V.K. Robbins, Goodwin Procter LLP, of Washington, DC, argued for claimant-appellant. With her on the brief were Frederick C. Schafrick and Richard A. Arculin.

Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel was Allison Kidd-Miller, Trial Attorney.

Before RADER, Chief Judge,^* DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

Thomas M. Nielson (“Nielson”) appeals from a final judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying him entitlement to Department of Veterans Affairs (“VA”) outpatient dental treatment and related dental appliances because the removal of his teeth during service was not due to a “service trauma” under 38 U.S.C. § 1712(a)(1)(C). Nielson v. Shinseki, 23 Vet.App. 56 (2009). We hold that a “service trauma” under the statute is an injury or wound produced by an external physical force during the performance of military duties, and does not include the intended result of proper medical treatment. Here, the VA found that Nielson's teeth were properly extracted due to periodontal infection. Accordingly, we affirm.

Background

Nielson served on active duty in the United States Air Force from September 1950 to September 1954, and from March 1955 to October 1957. During his service in the Korean War, and when he was on active duty at a forward post in Korea, all but three of Nielson's teeth were extracted over the course of approximately one month, from August to September 1952. He received no anesthesia during the procedures and no pain killers after the procedures. While nearly all of Nielson's service records from the time are missing, his handwritten diary entries suggest that he suffered from a severe periodontal infection. Nielson's remaining three teeth were extracted in May 1953 after he returned to the United States. He was subsequently provided with dentures. Nielson's 1954 separation examination report documents that all of his teeth were missing.

In April 1991, Nielson submitted a claim to the VA seeking service connection for the loss of his teeth. He also sought a set of new dentures under what is now 38 U.S.C. § 1712(a)(1)(C). This statute provides veterans with outpatient dental care and related dental appliances for “service-connected dental condition[s] or disabilit[ies] due to combat wounds or other service trauma.” 38 U.S.C. § 1712(a)(1)(C). The VA granted Nielson service connection for the loss of his teeth and assigned a noncompensable disability rating. However, the VA denied Nielson outpatient dental treatment because it found that his teeth extractions were not due to “combat dental injuries” or a “service trauma.” Nielson, 23 Vet.App. at 57. The Board of Veterans' Appeals (“Board”) affirmed that decision, and Nielson appealed. The Veterans Court remanded the matter, ordering the Board to “consult with” VA General Counsel on the definition of “service trauma” and its application to Nielson's claim. Id. at 58.

On remand, the VA General Counsel rendered an opinion stating that “from a legal or medical perspective trauma is an injury,” and held that “[f]or the purposes of determining whether a veteran has ... eligibility for dental care under [38 U.S.C. § 1712(a)(1)(C) and 38 C.F.R. § 17.161(c) ], the term ‘service trauma’ does not include the intended effects of treatment” provided during the veteran's military service. VA Gen. Coun. Prec. No. 5-97 (Jan. 22, 1997); see VAOPGCPREC 5-97, 62 Fed.Reg. 15,566 (Apr. 1, 1997). The Board then found that Nielson had not engaged in combat with the enemy during his time in Korea, that his teeth were removed most probably due to periodontal infection, and that the military dentists had not engaged in malpractice in extracting Nielson's teeth. The Board, relying on the VA General Counsel opinion, concluded that the removal of Nielson's teeth did not constitute a “service trauma” and Nielson was not entitled to outpatient dental treatment.¹

Nielson again appealed to the Veterans Court. The Veterans Court considered the plain meaning of “service trauma” and the context of 38 U.S.C. § 1712(a)(1)(C), and held that the meaning of “service trauma” is “an injury or wound violently produced while the injured or wounded is in the armed forces.” Nielson, 23 Vet.App. at 60. The court also agreed with the Board and VA General Counsel that “service trauma” does not encompass an intended treatment for periodontal disease. Because Nielson had not shown that his dental condition resulted from “an injury or wound violently produced,” the court affirmed the Board's decision. Nielson timely appealed.

Discussion

We have jurisdiction to review decisions of the Veterans Court “with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.” 38 U.S.C. § 7292(a); see Forshey v. Principi, 284 F.3d 1335, 1359 (Fed.Cir.2002) (en banc) (“We hold that we have jurisdiction over ... issues of interpretation if the Court of Appeals for Veterans Claims elaborated the meaning of a statute or regulation and the decision depended on that interpretation....”). Under the statute as amended in 2002 see Veterans Benefits Act of 2002, Pub.L. No. 107-330, § 402(a), 116 Stat. 2820, 2832 (codified at 38 U.S.C. § 7292(a)), we have jurisdiction to review all legal questions decided by the Veterans Court. See Szemraj v. Principi, 357 F.3d 1370, 1374-75 (Fed.Cir.2004). We review a claim of legal error in a decision of the Veterans Court without deference. Id. at 1372.

This appeal requires us to construe the term “service trauma” in 38 U.S.C. § 1712(a)(1)(C), which provides:

(a)(1) Outpatient dental services and treatment, and related dental appliances, shall be furnished under this section only for a dental condition or disability-

...

(C) which is a service-connected dental condition or disability due to combat wounds or other service trauma, or of a former prisoner of war....

Nielson argues that the Veterans Court erred in construing the term “service trauma” in § 1712(a)(1)(C). Under Nielson's interpretation, the extraction of nearly all of a veteran's teeth during his time of service is a “service trauma.” The government responds that “service trauma” does not include the intended result of proper medical treatment provided by the military. We agree with the government that 38 U.S.C. § 1712(a)(1)(C) is not so broad as to include the intended results of proper medical treatment provided by the military.

The statute does not define “service trauma.” When terms are not defined, it is a basic principle of statutory interpretation that they are deemed to have their ordinary meaning. Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982); Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). For that meaning, it is appropriate to consult dictionaries. See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91-92, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006); Lamar v. United States, 241 U.S. 103, 113, 36 S.Ct. 535, 60 L.Ed. 912 (1916). The current edition of Webster's at the time of the statute's passage defined “trauma” first as simply “[a]n injury or wound, or the resulting condition.” Webster's New International Dictionary of the English Language 2696 (unabr.2d ed. 1948) (“ Webster's Second ”). It defined an “injury” as “[d]amage or hurt done to or suffered by a person or thing,” id. at 1280, and a “wound” as “[a]n injury to the body of a person or animal, esp. one caused by violence, by which the continuity of the covering, as skin, mucous membrane, or conjunctiva, is broken,” id. at 2956. Shortly after the statute's passage Webster's updated the primary definition of “trauma” to read: “an injury or wound to a living body caused by the application of external force or violence.” Webster's Third New International Dictionary 2432 (unabr.1961) see also Black's Law Dictionary 1671 (4th ed.1951) (defining “trauma” as “[a] wound; any injury to the body caused by external violence”) Stedman's Medical Dictionary 1416 (18th rev. ed.1953) (defining “trauma” first as “[a] wound, an injury inflicted, usually more or less suddenly, by some physical agent”).

Under these circumstances, we think that the prevailing definition of “trauma” at the time the statute was enacted was “an injury or wound produced by an external physical force.” The pulling of teeth is an act of force that could fit within that definition. We do not, however, think that Congress in § 1712(a)(1)(C) intended to use the word “trauma” in this broad sense; nor do we think it reasonable to conclude that Congress intended to include proper dental treatment designed to remedy an injury or disease to be within the phrase “service trauma.” This is so for two reasons.

First, the language of the statute itself suggests that an expansive reading of the term “trauma” is inappropriate. The word “trauma” does not stand alone in the statute. It is part of the phrase “service-connected dental condition or disability due to combat wounds or other service trauma.” 38 U.S.C. § 1712(a)(1)(C). Congress has chosen to limit the types of injuries that fall under the statute to only a subset of service-connected dental conditions-that is, those involving “service trauma.” Construing “service trauma” broadly to include nearly any injury suffered while serving in the armed forces, even the intended results of...