Snyder v. McDonough

• Decision Date: 09 June 2021
• Docket Number: 2020-2168
• Citation: 1 F.4th 996
• Parties: Joseph J. SNYDER, Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

1 F.4th 996

Joseph J. SNYDER, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2020-2168

United States Court of Appeals, Federal Circuit.

Decided: June 9, 2021

Jennifer Ann Zajac, Paralyzed Veterans of America, Washington, DC, argued for claimant-appellant. Also represented by Linda E. Blauhut.

Kyle Shane Beckrich, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Jeffrey B. Clark, Elizabeth Marie Hosford, Robert Edward Kirschman, Jr. ; Brian D. Griffin, Derek Scadden, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Taranto, Linn, and Chen, Circuit Judges.

Taranto, Circuit Judge.

Joseph Snyder served in the U.S. Army for less than 50 days in 1974—during the Vietnam era, a "period of war," 38 C.F.R. § 3.2(f) —his service ending with an honorable discharge when a knee injury rendered him unfit. Four decades later, he was diagnosed with Amyotrophic Lateral Sclerosis (ALS). He sought disability benefits for ALS from the Department of Veterans Affairs (VA) under 38 U.S.C. § 1110, which provides for compensation for service-connected disability—specifically, for "disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, air, or space service, during a period of war," subject to exceptions (for dishonorable discharge and willful misconduct or abuse of alcohol or drugs) inapplicable to Mr. Snyder. A decision of the U.S. Court of Appeals for Veterans Claims (Veterans Court) rejecting his claim for benefits based on ALS is before us.

In the Veterans Court, Mr. Snyder relied, to meet the fundamental requirement of service connection, solely on an argument about a VA regulation, adopted in 2008 and made final in 2009, that provides a presumption of service connection for veterans with ALS if specified preconditions are satisfied. 38 C.F.R. § 3.318(a), (b). Mr. Snyder undisputedly does not satisfy one of those preconditions—that the veteran "have active, continuous service of 90 days or more." Id. § 3.318(b)(3). Nevertheless, Mr. Snyder argued in the Veterans Court that the 90-day-service precondition is unlawful, because contrary to the statutory scheme and arbitrary and capricious, and that the presumption should remain in place with the precondition nullified, entitling him to a finding of service connection.

The Veterans Court rejected Mr. Snyder's contention that the 90-day-service precondition is unlawful. We have jurisdiction to review that legal conclusion. 38 U.S.C. § 7292(a). We decide the legal issue de novo. Bazalo v. West , 150 F.3d 1380, 1382 (Fed. Cir. 1998). We affirm.

I

Mr. Snyder challenges the validity of a portion of 38 C.F.R. § 3.318, which establishes a presumption of "service connection"—the term used for the requirement of § 1110 and the counterpart provision for peacetime service, 38 U.S.C. § 1131 ; see Walker v. Shinseki , 708 F.3d 1331, 1334 (Fed. Cir. 2013) —for veterans who develop ALS, under certain prescribed preconditions. Section 3.318 provides:

(a) Except as provided in paragraph (b) of this section, the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.

(b) Service connection will not be established under this section:

(1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service;

(2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran's own willful misconduct; or

(3) If the veteran did not have active, continuous service of 90 days or more .

38 C.F.R. § 3.318 (emphasis added).

This presumption is entirely a regulatory creation. Although Congress has enacted several provisions that establish service-connection presumptions applicable in certain circumstances, see , e.g. , 38 U.S.C. §§ 1112, 1116 – 1118, Congress has created no statutory presumption applicable to ALS. The Secretary promulgated § 3.318 pursuant to the general rulemaking authority granted by 38 U.S.C. § 501(a) to "prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department ..., including ... regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws." The law being carried out, the Secretary specified, was the requirement of "service connection" stated in 38 U.S.C. § 1110. See Presumption of Service Connection for Amyotrophic Lateral Sclerosis, 73 Fed. Reg. 54,691, 54,692 (Sept. 23, 2008) (Interim Final Rule) (reciting § 501 authority applied to service-connection requirement of § 1110 ).

The Secretary's proposal and adoption of the regulation followed receipt of a VA-commissioned report by the National Academy of Sciences Institute of Medicine (IOM) that reviewed studies of the relationship of ALS to military service. See Institute of Medicine, Amyotrophic Lateral Sclerosis in Veterans: Review of the Scientific Literature (Nov. 2006) (IOM Report); see also Interim Final Rule, 73 Fed. Reg. at 54,691. The IOM Report notes that ALS is a neuromuscular disease that causes nerve cells in the brain and spinal cord to degenerate and, accordingly, is almost always fatal. IOM Report at 1. It also states that, although about 5–10% of ALS cases are inherited, the cause of the remaining cases is still unknown. Id. Nevertheless, the IOM Report states, the scientific literature indicated that there was "limited and suggestive evidence of an association between military service and later development of ALS." Id. at 3; see also id. at 35 (identical language in bold as final conclusion of the IOM Report).

Central to that conclusion in the IOM Report, see id. at 32–35, is a study by M.G. Weisskopf and colleagues published not long before the IOM Report. The Weisskopf study compared the incidence of ALS-related deaths among those with military service and those without. M.G. Weisskopf et al., Prospective Study of Military Service and Mortality from ALS , 64 Neurology (1) 32 (2005) (Weisskopf). The Weisskopf study analyzed a population (previously assembled for unrelated purposes) of 408,288 individuals, of whom 281,874 had served in the military, including during World War I, World War II, the Korean War, or the Vietnam War.¹ Id. at 32. The study split those participants who had military service into equal "quintiles"—according to years of service—and calculated the median length of service, measured in whole-number years, for the participants in each quintile. See id. at 33 ("The total number of years of service was categorized by quintile. ... For total years served, this was done by assigning medians to each quintile and modeling the median values as a continuous variable."); id. at 34 (table showing "Adjusted relative risk (RR) of ALS by years of military service, 1989–1998," rows for no military service and each of five quintiles, by "Median years").² Considering factors like age, smoking, and alcohol intake that might have affected rates of ALS, the Weisskopf study found that the relative risk of developing ALS was higher for those with military service than those without, that "[t]he increased risk of ALS was largely independent of the number of years served in the military," and that the increased risk was "largely independent of the branch of military service, the years when service occurred, or the number of years served ." Id. at 34–35 (emphases added).

The 2006 IOM Report observes that, while other studies had focused only on the Gulf War, the Weisskopf study was "the first to suggest a relationship between military service before the Gulf War and ALS mortality." IOM Report at 34. The report notes greater limitations of the other studies reviewed, id. at 26–31, 35, but as to the Weisskopf study, it states that "overall it was a well-designed and well-conducted study" and that, despite "limitations inherent in an analysis of a cohort assembled for other purposes, the findings are intriguing." Id. at 34. "The implication is that military service in general—not confined to exposures specific to the Gulf War—is related to the development of ALS." Id. The IOM Report adds: "The findings, if validated in other studies, suggest that exposures during military service, even among those with no wartime service, might be responsible." Id.

In accordance with the conclusions of the IOM Report and the Weisskopf study, the Secretary proposed an interim final rule—effective immediately but subject to notice and comment before adoption as a permanent rule—establishing a presumption of service connection for "any veteran who develops [ALS] at any time after separation from service." Interim Final Rule, 73 Fed. Reg. at 54,691. The Secretary noted the observed link between ALS and military service and also found that it was "unlikely that conclusive evidence [of the causes of ALS] will be developed in the foreseeable future." Id. Given the rapidly progressive and degenerative nature of the disease, as well as "continuing uncertainty regarding specific precipitating factors or events that lead to development of [ALS]," the Secretary determined that there would be "great difficulty" for veterans seeking benefits for ALS to prove service connection in the absence of the presumption. Id. at 54,692.

After explaining the basis for adopting a presumption at all, the Secretary enumerated three circumstances for which post-military-service ALS would not suffice to establish service connection. See id. First, service connection would not be established "if there is affirmative...