Wanner v. Principi

• Decision Date: 02 June 2004
• Docket Number: No. 03-7169.,03-7169.
• Citation: 370 F.3d 1124
• Parties: Jacob WANNER and King L. Wright, Claimants-Appellees, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

370 F.3d 1124

Jacob WANNER and King L. Wright, Claimants-Appellees, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellant.

No. 03-7169.

United States Court of Appeals, Federal Circuit.

June 2, 2004.

Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for claimants-appellees.

Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellant. With her on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Brian M. Simken, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Jamie L. Mueller, Attorney, Department of Veterans Affairs, of Washington, DC.

Before CLEVENGER, GAJARSA, and PROST, Circuit Judges.

GAJARSA, Circuit Judge.

Anthony J. Principi, Secretary of Veterans Affairs ("Secretary"), appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") that 38 C.F.R. § 4.87a, Diagnostic Code ("DC") 6260 (1998),¹ was invalid as inconsistent with 38 U.S.C. § 1110. Wanner v. Principi, 17 Vet.App. 4 (2003). Because we conclude that the Veterans Court lacked jurisdiction to review the content of DC 6260, we reverse its decision and remand for further proceedings.

I. BACKGROUND

Appellants Jacob Wanner ("Wanner") and King L. Wright ("Wright") (collectively, "Appellants") are veterans who sought benefits from the Department of Veterans Affairs ("VA") for Tinnitus. Tinnitus is a hearing condition with symptoms that include ringing, buzzing, roaring, or clicking in the ears.

Wanner served in the United States Marine Corps between 1946 and 1948, during which time he developed tuberculosis. He was awarded a service connection for his tuberculosis in 1949. In 1982, Wanner sought benefits from a VA Regional Office ("RO") for bilateral hearing loss, which he stated was a result of his tuberculosis medication. In 1985, the Board of Veterans' Appeals (the "Board") awarded Wanner a service connection for Tinnitus, retroactive to 1982 when he filed his claim, but gave him a noncompensable rating for the condition.

In 1998, Wanner sought a compensable rating because of an increase in the severity of his Tinnitus. The RO increased Wanner's rating for bi-lateral hearing loss, but maintained the noncompensable rating for his Tinnitus because it was not a symptom of "head injury, concussion, or acoustic trauma" as required by the 1998 version of DC 6260 (hereinafter, the "Trauma Requirement").² Wanner appealed the RO's decision to the Board, which awarded him a rating of 10% for his Tinnitus on June 7, 2000. The Board limited Wanner's retroactive benefits to June 10, 1999, however, because, on that date, the VA amended DC 6260 to eliminate the Trauma Requirement. See 38 C.F.R. § 4.87a, DC 6260 (1998). As amended, DC 6260 required only that the Tinnitus be "recurrent." See 38 C.F.R. § 4.87, DC 6260 (1999). Wanner appealed the Board's decision to the Veterans Court.

Wright served in the United States Army between 1942 and 1945 and has a story similar to Wanner. In 1947, an RO awarded Wright a service connection and assigned a noncompensable rating for impairment of auditory acuity. Following a medical examination in 1985, an RO awarded Wright a service connection for his Tinnitus but continued his noncompensable rating. In 1988, the RO removed the noncompensable rating and assigned Wright a disability rating of 20% for his hearing loss, but stated that the Tinnitus did not warrant a separate compensable rating because it was not the result of acoustic trauma. Wright again sought benefits for his Tinnitus in 1999 and the RO again denied his claim, maintaining his disability rating at 20%.

Wright appealed the 1999 decision to the Board and, like Wanner, argued that he was entitled to a 10% disability rating per ear for his Tinnitus. The Board awarded Wright a 10% rating for his Tinnitus and maintained the 20% rating for his other hearing impairment. As it did with Wanner, the Board limited the effective date of the 10% compensation for Tinnitus to June 10, 1999. Wright also appealed his case to the Veterans Court.

The Veterans Court consolidated Wanner's and Wright's cases and heard them together. Appellants argued that, under 38 C.F.R. § 4.25, they were entitled to a 10% rating for each ear rather than a single 10% rating for both. The Veterans Court noted that the Board did not address the applicability of section 4.25, and remanded for consideration of the issue. Wanner, 17 Vet.App. at 13.

Wanner also argued that he was entitled to an effective date earlier than June 10, 1999, because the pre-1999 Trauma Requirement in DC 6260 was unlawful. The basis of Wanner's charge of unlawfulness was both statutory — premised on 38 U.S.C. § 1110 — and constitutional — premised on the Equal Protection Clause. The Secretary challenged Wanner's statutory argument by asserting that the Veterans Court lacked jurisdiction over the argument under 38 U.S.C. § 7252(b). Section 7252(b), which is the jurisdictional statute for the Veterans Court, explains:

Review in the Court shall be on the record of proceedings before the Secretary and the Board. The extent of the review shall be limited to the scope provided in section 7261 of this title. The Court may not review the schedule of ratings for disabilities adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule.

38 U.S.C. § 7252(b). The Secretary argued that because DC 6260 is part of the schedule of ratings for disabilities adopted under section 1155, it was beyond the Veterans Court's jurisdiction under section 7252(b).

The Veterans Court declined to address Wanner's constitutional argument, opting instead to decide the issue on statutory grounds. Wanner, 17 Vet.App. at 14. The court concluded, contrary to the Secretary's argument, that it did possess jurisdiction to review DC 6260. Relying on its decisions in Villano v. Brown, 10 Vet.App. 248 (1997) and Hood v. Brown, 4 Vet.App. 301 (1993), the Veterans Court explained that, although it was precluded from reviewing the rating schedule for issues such as "intraschedular conflict, what should be considered a disability, and the appropriate rating for any disability," it could review "whether the regulation complies with the statutory authority under which disability compensation is paid, 38 U.S.C. § 1110." Wanner, 17 Vet.App. at 14-15. Furthermore, the court explained, 38 U.S.C. § 7261, which is referenced in section 7252, authorized the Veterans Court to "hold unlawful and set aside" regulations that were "not in accordance with law" or that were "in excess of statutory jurisdiction, authority, or limitations...." Wanner, 17 Vet.App. at 15; see also 38 U.S.C. § 7261(a)(3)(A), (C).

The Veterans Court addressed the merits of Wanner's claim and concluded that the Trauma Requirement of DC 6260 was invalid because it violated 38 U.S.C. § 1110. Wanner, 17 Vet.App. at 18. Section 1110, the court explained, provides that the United States "will pay" disability compensation "to any veteran" for a "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, or air service, during a period of war." 38 U.S.C. § 1110 (emphasis added). Wanner argued that because the Trauma Requirement of DC 6260 limited the payment of benefits to only certain veterans suffering from service-connected Tinnitus — a disability within the meaning of section 1110 — the provision drew distinctions that were impermissible under § 1110's mandate requiring the United States to pay benefits "to any veteran thus disabled." Id. The Veterans Court also found DC 6260 arbitrary and capricious because it was accompanied by no regulatory history justifying the distinction between veterans suffering Tinnitus based on the Trauma Requirement. Wanner, 17 Vet.App. at 18.

Accordingly, the Veterans Court vacated the decision of the Board and remanded Appellants' cases for readjudication under the sole remaining limitation on compensation for Tinnitus under the 1998 version of DC 6260: persistence. The Secretary timely appealed and, as we explain below, this court has jurisdiction pursuant to 38 U.S.C. § 7292(a).

II. DISCUSSION

A. Standard of Review

Under 38 U.S.C. § 7292(a), this court may review the decisions of the Veterans Court with respect to "any statute or regulation (other than a refusal to review the schedule of ratings for disabilities adopted under section 1155 of this title) or any interpretation thereof ... that was relied on by the [Veterans] Court in making the decision." 38 U.S.C. § 7292(a). This court reviews statutory interpretations by the Veterans Court de novo, and may set aside any regulation or interpretation of a regulation that it finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to a constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observation of a procedure required by law. 38 U.S.C. § 7292(d)(1); Herndon v. Principi, 311 F.3d 1121, 1124 (Fed.Cir.2002); Bustos v. West, 179 F.3d 1378 (Fed.Cir.1999). Review of the Veterans Court's compliance with its jurisdictional statute is a question of law, reviewed de novo. Cook v. Principi, 353 F.3d 937, 939 (Fed.Cir.2003).

B. Analysis

As an initial matter, we agree with the Secretary that we have jurisdiction over this appeal under the exception in Williams v. Principi, 275 F.3d 1361 (Fed.Cir.2002). Although the issue is purely legal, and therefore within the scope of jurisdiction proscribed by 38 U.S.C. § 7292, "we have generally declined to review non-final orders of the...