Spicer v. McDonough
| Decision Date | 14 September 2021 |
| Docket Number | 18-4489 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Luther D. Spicer, Jr., Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
Argued September 29, 2020
On Appeal from the Board of Veterans' Appeals
Christopher Glenn Murray, with whom John D. Niles and Barton F. Stichman were on the brief, all of Washington, D.C., for the appellant.
Bobbiretta E. Jordan, with whom William A. Hudson, Jr. Acting General Counsel; Mary Ann Flynn, Chief Counsel Kenneth A. Walsh, Deputy Chief Counsel; and Jessica K. Grunberg, Senior Appellate Attorney, were on the brief, all of Washington, D.C., for the appellee.
Before PIETSCH, ALLEN, and TOTH, Judges.
Veteran Luther D. Spicer, Jr., served in the U.S. Air Force from May 1958 to September 1959. The Board denied him compensation for a bilateral leg disability, primarily characterized by weakness and instability from arthritis in both knees. Before the Agency, Mr. Spicer sought compensation for this disability on the theory that it was secondary to his service-connected leukemia. But he did not contend that leukemia caused his bilateral leg disability; nor did he argue that leukemia aggravated it-that is, made it worse. Instead, he maintains that he should be compensated for the current level of functional impairment because treatment he received for his leukemia prevented him from undergoing surgery that could potentially alleviate his bilateral leg disability. Relying on VAs secondary-service-connection regulation, the Board determined that the law didn't authorize disability compensation on such a theory.
On appeal, Mr. Spicer argues that, notwithstanding any regulation, the statute that establishes basic entitlement to VA disability compensation authorizes service connection in these circumstances. Because we conclude that the statutory language at issue does not direct VA to provide compensation absent causation or aggravation, we affirm.
This case turns on some fundamental principles governing the award of VA disability compensation. "Basic entitlement" is spelled out in 38 U.S.C. § 1110, which presently provides:
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, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs.
38 U.S.C. § 1110.[1] Congress further specified that a "preexisting injury or disease will be considered to have been aggravated by active military, naval, air, or space service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153. These provisions lay out what's come to be known as the "direct" theory of service connection. In general, under this theory, the evidence establishes "that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein." 38 C.F.R. § 3.303(a) (2021).
No statute expressly provides for secondary service connection, where compensation for a disability is not related directly to service but to problems that themselves stem from service. See Frost v. Shulkin, 29 Vet. App. 131, 137 (2017). Instead, this theory of entitlement is set forth in a longstanding regulation, 38 C.F.R. § 3.310, which was first promulgated in 1930.[2] Under this rule, VA recognizes that "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected" as "a secondary condition." 38 C.F.R. § 3.310(a) (2021). Following our en banc decision in Allen v. Brown, 7 Vet.App. 439 (1995), VA promulgated subsection (b), which states:
Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities . . . and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.
In April 2013, the VA regional office (RO) granted Mr. Spicer service connection for chronic myeloid leukemia and assigned a 100% disability rating. Four years later, he filed a claim for bilateral leg weakness and instability, asserting that it was secondary to his service-connected leukemia. A VA examiner confirmed bilateral knee degenerative arthritis, noted the functional limitations caused by the disease, and acknowledged Mr. Spicer's contention that his arthritis was linked to leukemia. But she opined against that theory, citing medical literature to support that arthritis was not a known symptom of leukemia.
Shortly thereafter, the RO denied service connection for the bilateral leg disability. Mr. Spicer disagreed and advised that he had essentially "lost use" of his legs and that he could not undergo surgery on them because of his leukemia. R. at 52. As he later clarified, his scheduled 2013 bilateral knee replacement surgery was canceled because the chemotherapy he was undergoing to treat leukemia had so depressed his hematocrit-red blood cell level. R. at 24. Moreover, he was told that his hematocrit level would "never" rise to a level that would permit him to have such surgery. Id.
In the August 2018 decision on appeal, the Board found that the "record does not reflect any proximate aggravation, or worsening beyond natural progression, of the [v]eteran's knee arthritis by his leukemia; or that the knee arthritis is proximately due to, or the result of, his service-connected leukemia." R. at 6. As for the nexus theory proffered by the veteran, the Board concluded that the "inability to undergo knee replacement surgery because of the effects of his service-connected leukemia is not contemplated by the applicable laws or regulations to fall within the meaning of secondary service connection." Id. (citing 38 C.F.R. § 3.310). For this reason, the Board denied secondary service connection for the bilateral leg disability. This appeal followed.
As noted above, VA will grant service connection for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310(b). Mr. Spicer doesn't dispute the Board's conclusion that, under the terms of § 3.310, he is not entitled to service connection for his bilateral knee disability;[3] he contends instead that portions of the regulation are invalid because they make the regulation more restrictive than the statute it implements, section 1110. Pressing that argument, he asserts that section 1110 only requires a worsening of functionality; why that worsening occurred-whether through an inability to treat or a more "etiologically" direct cause-is irrelevant in his view. Appellant's Br. at 8. That the chemotherapy for service-connected leukemia "has worsened his functional impairment from his bilateral knee arthritis, by preventing arthroplasty to treat his arthritis," Mr. Spicer's asserts, "suffices to entitle him to service connection for the worsening of his lower leg disabilities." Id.
Mr. Spicer maintains that the plain language of section 1110 supports a cause-less relationship. Specifically, he contends that the parts of § 3.310(b) on which the Board relied are invalid because they cannot square with section 1110's mandate that the government "will pay" a veteran for disability "resulting from personal injury suffered or disease contracted in line of duty." Absent a specific definition, we understand a statute's words to carry the "ordinary, contemporary, common meaning" they bore at the time the statute was enacted. Ravin v. Wilkie, 31 Vet.App. 104, 109 (2019) (en banc).
Save for minor alterations not relevant here, section 1110's language has remained the same since 1957 when Congress first enacted this "basic entitlement" provision. See Veterans' Benefits Act of 1957, Pub. L. No 85-86, Title III, § 310, 71 Stat. 83, 96 (codified at 38 U.S.C. § 2310 (1952 ed., 1958 Supp. V)). The act's purpose was to "consolidate," "simplify," and "make more uniform" the various "laws administered by the Veterans' Administration." 71 Stat, at 83. Prior to the 1957 act, the earliest statute the Court could find that directly addresses entitlement is from 1933. There, Co...
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