Roby v. McDonough
| Decision Date | 04 August 2021 |
| Docket Number | 2020-1088 |
| Parties | HAROLD L. ROBY, JR., Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee |
| Court | U.S. Court of Appeals — Federal Circuit |
This disposition is nonprecedential.
Appeal from the United States Court of Appeals for Veterans Claims in No. 17-528, Chief Judge Margaret C. Bartley, Judge Amanda L. Meredith, Senior Judge Mary J. Schoelen.
Charles Collins-Chase, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for claimant-appellant.
Also represented by KENNETH Santo Guerra, Jennifer Vein.
Ashley Akers, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee.
Also represented by Claudia Burke, Jeffrey B. Clark, Robert Edward Kirschman, Jr.; Jonathan Krisch, Y. Ken Lee, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before O'Malley, Reyna, and HUGHES, Circuit Judges.
Harold L. Roby, Jr. appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming a Board of Veterans' Appeals ("Board") decision denying his request for an increased disability rating under 38 C.F.R. § 4.114 Diagnostic Code ("DC") 7203. See Roby v Wilkie, 31 Vet.App. 91 (2019). Because we disagree with the Veterans Court's application of controlling Supreme Court precedent and its interpretation of 38 C.F.R §§ 4.114, DC 7203 and 4.7, we vacate and remand.
Harold L. Roby, Jr. actively served in the U.S. Army from January 30, 1975 to July 10, 1992. While still in service, Mr. Roby began experiencing difficulty swallowing and reflux. In August 1993, Mr. Roby was diagnosed with an esophageal disorder known as achalasia, which impaired his ability to swallow food.
Mr. Roby applied for disability benefits under 38 C.F.R. § 4.114, which provides a schedule of disability ratings for digestive disorders. Within that schedule, DC 7203 prescribes ratings for esophageal strictures. See 38 C.F.R. § 4.114, DC 7203. The code recognizes three levels of disability, expressed in terms of percentages, that "represent as far as can practicably be determined the average impairment in earning capacity resulting from" the veteran's condition. 38 C.F.R. § 4.1. DC 7203 provides the following percentage disability ratings: (1) 80% for esophageal strictures that "[p]ermit[] passage of liquids only, with marked impairment of general health"; (2) 50% for esophageal strictures that are "[s]evere, permitting liquids only"; and (3) 30% for esophageal strictures that are "[m]oderate." 38 C.F.R. § 4.114, DC 7203. On October 1, 1993, the VA regional office ("RO") granted service connection for Mr. Roby's achalasia, assigning the lowest available rating of 30% under DC 7203 for a "[m]oderate" esophageal stricture.
Mr. Roby's achalasia worsened following his initial diagnosis, and on November 24, 2009, Mr. Roby submitted a claim for an increased benefit rating of 50% for esophageal strictures characterized as "[s]evere permitting liquids only." To support his claim, Mr. Roby underwent a VA-ordered medical examination, in which he was diagnosed as having a history of achalasia and mild reflux esopha-gitis. Based on this initial medical examination, the RO denied Mr. Roby's claim for increased benefits.
Mr. Roby timely filed a Notice of Disagreement and underwent a second VA-ordered medical examination. The examiner found that Mr. Roby had an esophageal stricture that caused him difficulty swallowing food but not liquids. The examiner again found that Mr. Roby's symptoms were "[m]oderate" and did not warrant a higher benefit rating of 50% under DC 7203.
The Board remanded the examiner's findings based on Mr. Roby's sworn testimony concerning his limited diet. In September 2014, the VA examiner evaluated Mr. Roby's diet (which consisted of various solids, semisolids, and liquids) and noted that he would have "to chew solids for a long time but they do pass" after approximately 10-15 minutes. J.A. 667. The examiner again found that Mr. Roby's symptoms only qualified as "[m]oderate" under DC 7203, and the RO denied Mr. Roby's request for a higher benefit rating.
Mr. Roby timely appealed the RO's decision to the Board. The Board denied Mr. Roby's claim for an increased benefit rating. The Board reasoned that, while Mr. Roby must chew small pieces of food to a liquid consistency before swallowing, under 38 C.F.R. § 4.7[1], Mr. Roby's achalasia symptoms more closely approximated the "[m]oderate" criteria for a 30% rating rather than the "[s]evere, permitting liquids only" criteria for a 50% rating.
Mr. Roby timely appealed the Board's decision to the Veterans Court. The Veterans Court first considered whether the terms "permitting" and "[permitting passage" from DC 7203's benefits ratings of 50% and 80%, respectively, referred to substances entering the mouth or, alternatively, to substances passing through the esophagus. The Veterans Court agreed with Mr. Roby that these terms referred to passage through the esophagus because DC 7203 assessed esophageal strictures. Roby, 31 Vet.App. at 97.
The Veterans Court also weighed Mr. Roby's and the VA's proffered definitions of the term "liquids" in DC 7203. Id. The Veterans Court found that neither party's definition helped illuminate the ordinary meaning of "liquids." Id. at 97-98. The Veterans Court instead held that the term was ambiguous because the diagnostic code provided no definition and the structure, purpose, and regulatory history of DC 7203 were silent on the topic. Id. at 98.
Upon finding the term "liquids" ambiguous, the Veterans Court relied on the Supreme Court's Auer framework to defer to the VA's proffered interpretation of DC 7203. Id. at 99 (). According to the VA, DC 7203's term "liquids" does not "include foods that have a textu[r]al quality like purees, soft solids, semisolids, or chewed solids." Id. at 101 (emphasis in original). The Veterans Court found that the VA's interpretation warranted Auer deference because it "is consistent with the regulatory scheme [], which provides higher evaluations based on greater difficulty swallowing." Id. at 99 (citations omitted).
The Veterans Court also reasoned that Auer deference was appropriate because the VA's interpretation reflects the Secretary's "fair and considered judgment." Id. The Veterans Court based this conclusion on the fact that, in a previously proposed amendment to DC 7203 (which was later withdrawn), the VA had defined the term "liquids" similarly to how it was interpreting the term in this case. Id. The Veterans Court also pointed out that, in a different diagnostic code concerning temporomandibular disorders (38 C.F.R. § 4.150, DC 9905), the VA had defined "full liquids" consistently with how it defined "liquids" under DC 7203. Id. at 99-100 ().
After applying Auer's framework to the facts of this case, the Veterans Court "stress[ed] that Auer deference is not necessary to [its] conclusion." Id. at 100. According to the Veterans Court, the less deferential standard espoused in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) also applies in this case because the VA's "interpretation was based on thorough consideration and valid reasoning and is consistent with other interpretations of 'liquid.'" Id.
The Veterans Court also rejected Mr. Roby's argument that, in light of DC 7203's ambiguous use of the term "liquids" and vague descriptions of the ratings criteria, the court should have resolved any ambiguities in Mr. Roby's favor pursuant to the pro-veteran canon described in Brown v. Gardner, 513 U.S. 1301 (1994). Id. at 100-101. The Veterans Court concluded that, because the VA's proposed interpretation qualifies for Auer deference, the pro-veteran canon does not need to be considered. Id. at 100. While it did not say so expressly, the Veterans Court presumably also would afford the VA agency Skidmore deference without regard to the Brown v. Gardner presumption.
The Veterans Court lastly addressed Mr. Roby's argument that the Board erred under 38 U.S.C. § 4.7 by failing to consider whether his achalasia "more closely approximately]" the criteria for a 50% benefit rating under DC 7203. The Veterans Court concluded that the Board properly relied on testimony and additional record evidence to determine that Mr. Roby's achalasia did not approximate the criteria for a 50% benefit rating under § 4.7 in light of the definition of "liquids" the Board employed. Id. at 103.
Mr. Roby timely appealed the Veterans Court decision. We have jurisdiction under 38 U.S.C. § 7292.
Section 7292 grants our court "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof by the Veterans Court. 38 U.S.C. § 7292(c). "In so doing, we review independently and without deference the [Veterans Court's] interpretations of statutory provisions and regulations." Hensley v. West, 212 F.3d 1255 1259 (Fed. Cir. 2000). Our court cannot review a challenge to the Veterans Court's factual determinations or to a law or regulation as applied to the...
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