Read v. Shinseki, 2010–7100.

• Decision Date: 22 June 2011
• Docket Number: No. 2010–7100.,2010–7100.
• Citation: 651 F.3d 1296
• Parties: Dwight L. READ, Claimant–Appellant,v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

651 F.3d 1296

Dwight L. READ, Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2010–7100.

United States Court of Appeals, Federal Circuit.

June 22, 2011.

Doris Johnson Hines, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for claimant-appellant. With her on the brief was Ronald L. Smith.Shelley D. Weger, 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. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel and Dana Raffaelli, Attorney, United States Department of Veterans Affairs.Before NEWMAN, CLEVENGER, and LINN, Circuit Judges.LINN, Circuit Judge.

Dwight L. Read (“Read”) appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”), holding that a 2007 Board of Veterans' Appeals (“Board”) decision changing the situs of Read's disability from one Muscle Group to another was not a severance of Read's service connection in violation of 38 U.S.C. § 1159. Read v. Shinseki, No. 07–3461, 2009 WL 3367647 (Vet.App. Oct. 21, 2009) (Table) (“ Read ”). For the reasons set forth below, this court affirms.

Background

During World War II, the Veteran's Administration, now known as the Department of Veterans Affairs (“VA”), often granted service connection for disabilities “without properly checking records and in many instances approved service connection when it was not warranted.” Miscellaneous Compensation Legislation: Hearing on H.R. 113 and H.R. 660 Before the Subcomm. on Compensation and Pensions of the H. Comm. On Veterans Affairs, 86th Cong., 2d Sess. 2208, 2199 (Statement of H.R. 660 Author Rep. Frank E. Smith). In 1954, the VA began a review of over one million claims of service connected injury, in which it increased or decreased thousands of disability ratings and severed service connection for thousands more. In taking remedial action, the VA severed service connection for many veterans years after it was granted, making it difficult or impossible to challenge the severance, especially given the passage of time and the often incomplete nature of World War II military records then available. This left affected veterans without recourse or compensation. Id.

To balance the VA's need to investigate whether the grant of service connection was appropriate against the veterans' need for protection of long-standing benefits, Congress passed 38 U.S.C. § 1159, which provides that:

Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be severed ... except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge.

Congress intended by this statute to “merely freeze[ ] the determination of service connection, that is ... the finding by the Veterans' Administration that the disability was incurred or aggravated by military service.” S.Rep. No. 86–1394, at 1, 1960 U.S.C.C.A.N. 2338, 2338 (1960).

Read served in the United States Army from July 1967 to July 1969. In February 1968, Read sustained a shell fragment wound to the right thigh, which was described, during treatment, as a “through and through gunshot wound.” The entry and exit wounds were sutured, but one became infected and was reopened to be cleaned. Read sustained a permanent scar as a result of the injury.

In 1995, Read sought service connection for a “right thigh gunshot wound, shrapnel wounds back of right shoulder and forehead, and PTSD [ (post-traumatic stress disorder) ].” On June 8, 1995, the VA regional office (“RO”) granted service connection for PTSD, and for residuals related to the fragment wound to the right thigh and forehead, but denied the presence of any injury to the right shoulder. The RO assigned a 30 percent rating for PTSD and 0 percent ratings for the scarring to the right thigh and forehead. Read appealed, and his rating was increased to 10 percent under Diagnostic Code 5313 for “RESIDUALS, GUNSHOT WOUND, RIGHT THIGH.”

Diagnostic Code 5313, authorized under 38 U.S.C. § 1155 as one of a series of ratings categories, is described in 38 C.F.R. § 4.73 as follows:

Group XIII. Posterior thigh group. Hamstring complex of 2 joint muscles. (1) Biceps femoria; (2) semimembranosus; (3) semitendinosus (Function: Extension of hip and flexion of knee. Outward and inward rotation of flexed knee. Acting with rectus femoria and Sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint.

Read appealed to the Board, citing an inability “to keep up with work requirements where you have to stand & work, for long periods of time,” and pain in his leg. When Read appealed to the Board, he was given an orthopedic examination by Dr. Frost on December 18, 1996. Dr. Frost noted the scar and the “pain in [Read's] inner thigh,” but could not “identify any loss of muscle.” He noted the following: “IMPRESSION: 1. residuals of gunshot wound, inner medial proximal thigh right.” The VA maintained Read's 10 percent disability rating under Diagnostic Code 5313 for “residuals, gunshot wound, right thigh.” On March 20, 2002, the VA again maintained Read's 10 percent rating for “residuals of a gunshot wound to the right thigh.” The Board affirmed.

Read appealed to the Veterans Court, asserting that “[t]he Board committed error as a matter of law when it failed to assist [Read] ... [by failing to] provide [him] with a medical examination that determines all of the muscle groups effected [sic] by his [gunshot wound].” The Veterans Court vacated and remanded for the VA to provide a “muscle examination that addresses specifically the nature and extent of any muscle injuries that resulted from the gunshot wound to [Read's] right thigh.” Read v. Nicholson, No. 02–2091, slip. op. at 2, 19 Vet.App. 466 (Vet.App. Feb. 17, 2005). The Veterans Court specifically noted that “although several examinations previously have been conducted, the examination reports do not reflect specifically which muscle groups are involved in the appellant's gunshot wound residuals.” Id.

On December 20, 2005, after a physical examination of Read's muscles, the VA examiner answered the remand order as follows: “The muscle group is group XV that is involved. It is the examiner's opinion that his impairment would be mild to moderate weakness of the right lower extremity.” On December 27, 2005, the VA maintained Read's 10 percent disability rating for “residuals of gunshot wound right thigh.” The VA report noted the sections of the Code of Federal Regulations relevant to muscles groups XIII, XIV, and XV, and the sections dealing with the determinations of the rating and the disability. The VA report further noted: “[t]he examiner indicates that only muscle group XV is involved. The examiner opines that impairment would be mild to moderate weakness of the right lower extremity.” (emphasis added). The Board then remanded to the RO, requiring a formal rating decision with the appropriate Diagnostic Code selected.

In the final set of decisions that led to this appeal, the RO continued Read's 10 percent disability rating for “residuals fragment wound, right thigh.” The RO noted:

Since January 1995, date of receipt of your claim, this disability has been rated under diagnostic code 5313 for disability affecting Muscle Group XIII without medical inquiry as to specific muscle group affected by said wound in service. This diagnostic code was chosen based on your complaints, symptoms, and findings. During the course of your appeal, VA exam was conducted on 11–17–05, at which time examiner identified the specific muscle group affected as XV....

Muscle group affected is reported as XV ...

Formal rating action is hereby taken to properly and accurately rate your residuals fragment wound right thigh under DC 5315 rather than 5313, based on VA exam report of 11–17–05 stating actual muscle group affected by the wound in service is Muscle Group XV.... The rating criteria is the same whether DC 5313 or DC 5315 is used. Thus no change in benefits results.

The Board affirmed, including a fact-finding that “[t]he veteran sustained a through and through gunshot wound to the right thigh which resulted in moderate injury to Muscle Group XV.” The Veterans Court also affirmed, rejecting Read's argument that the change in Diagnostic Code to represent an injury to Muscle Group XV instead of Muscle Group XIII was an impermissible severance of service connection to his disability to Muscle Group XIII, which was protected under 38 U.S.C. § 1159. Read, 2009 WL 3367647, at *1.

Discussion

This court reviews questions of statutory and regulatory interpretation without deference.Hogan v. Peake, 544 F.3d 1295, 1297 (Fed.Cir.2008). We may not review the Veterans Court's fact-finding or its application of law to fact. Collaro v. West, 136 F.3d 1304, 1307 (Fed.Cir.1998) (citing 38 U.S.C. § 7292(d)(2)).

The only question on appeal is whether the “service connection” for a “disability” protected under 38 U.S.C. § 1159 is severed when the VA assigns to an injury a different Diagnostic Code than originally noted.

In Collaro, this court noted the “five common elements to a veteran's application for benefits: [1] status as a veteran, [2] the existence of disability, [3] a connection between the veteran's service and the disability [ (i.e. service connection) ], [4] the degree of the disability, and [5] the effective date of the disability.” 136 F.3d at 1308.

On its face, 38 U.S.C. § 1159 protects only element [3]: “ service connection for any disability or death...