Case: 21-2089 Document: 32 Page: 1 Filed: 04/20/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EUGENE WEBBER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2089
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6035, Chief Judge Margaret C.
Bartley.
______________________
Decided: April 20, 2022
______________________
JOHN D. NILES, Carpenter Chartered, Topeka, KS, ar-
gued for claimant-appellant.
MATTHEW JUDE CARHART, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE
HOSFORD, PATRICIA M. MCCARTHY; CHRISTINA LYNN
GREGG, BRIAN D. GRIFFIN, Office of General Counsel,
Case: 21-2089 Document: 32 Page: 2 Filed: 04/20/2022
2 WEBBER v. MCDONOUGH
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before LOURIE, BRYSON, and PROST, Circuit Judges.
PROST, Circuit Judge.
The Board of Veterans’ Appeals (“Board”) determined
that Eugene Webber’s peripheral neuropathy service-con-
nection awards already compensated Mr. Webber for a doc-
tor’s recommendation that he avoid certain activities. The
Board accordingly denied Mr. Webber a higher diabetes
rating for that recommendation to avoid double compensa-
tion, or “pyramiding,” under
38 C.F.R. § 4.14. The Court of
Appeals for Veterans Claims (“Veterans Court”) affirmed
after determining that this anti-pyramiding rationale was
proper and sufficiently explained. Since the Veterans
Court properly construed § 4.14, we affirm.
BACKGROUND
I
Veterans may receive service connection for both dia-
betes and peripheral neuropathy. For diabetes, the rating
schedule provides a 20-percent rating for veterans who re-
quire either (1) one or more daily injection(s) of insulin and
a restricted diet, or (2) an oral hypoglycemic agent and a
restricted diet.
38 C.F.R. § 4.119, Diagnostic Code 7913. A
40-percent rating is given to veterans who require (1) one
or more daily injection(s) of insulin, (2) a restricted diet,
and (3) “regulation of activities.”
Id. “[C]ompensable com-
plications of diabetes” are evaluated “separately unless . . .
used to support a 100-percent evaluation,”
id., and periph-
eral neuropathy is a “common complication” of diabetes,
J.A. 43.
Peripheral neuropathy has its own rating schedule.
The ratings range from mild to complete disability and are
“in proportion to the impairment of motor, sensory, or
Case: 21-2089 Document: 32 Page: 3 Filed: 04/20/2022
WEBBER v. MCDONOUGH 3
mental function.”
38 C.F.R. § 4.124a. The assigned level
of impairment “[c]onsider[s] especially . . . complete or par-
tial loss of use of one or more extremities, . . . impairment
of vision, disturbances of gait, tremors, visceral manifesta-
tions, etc.”
Id.
II
Mr. Webber received service connection for diabetes,
peripheral neuropathy of the lower extremities, and pe-
ripheral neuropathy of the upper extremities, each at a rat-
ing of 20 percent. Mr. Webber also sought an increase in
his diabetes rating to 40 percent. He submitted the medi-
cal opinion of Dr. Anderson, which stated that Mr. Web-
ber’s peripheral neuropathy
significantly interferes with walking due to pain
and numbness in the feet and legs. [Mr. Webber]
requires a cane for ambulation and experiences
problems with his balance. He should not be ex-
posed to activities such as being around heights,
climbing, or balancing. . . . In summary, [Mr. Web-
ber’s diabetes] with secondary related [peripheral
neuropathy] would impose significant regulation of
activities.
J.A. 24 (emphasis added). Mr. Webber relied on the itali-
cized language to prove the requisite “regulation of activi-
ties” for a 40-percent diabetes rating.
III
The Board initially denied Mr. Webber an increased di-
abetes rating because the activities listed—avoiding
heights, climbing, and balancing—were “not the type of
strenuous activities contemplated by the regulation.”
J.A. 16. Mr. Webber appealed that decision to the Veterans
Court, and the Veterans Court granted the parties’ joint
motion for partial remand, in which the parties agreed
that the Board improperly disagreed with Dr. Anderson’s
medical opinion. J.A. 16.
Case: 21-2089 Document: 32 Page: 4 Filed: 04/20/2022
4 WEBBER v. MCDONOUGH
On remand, the Board denied Mr. Webber’s claim for a
40-percent diabetes rating “on alternative grounds.”
J.A. 16. The Board did not examine whether Dr. Ander-
son’s activity suggestions fell within the ambit of “regula-
tion of activities”; instead, it examined whether
Mr. Webber’s peripheral neuropathy ratings already com-
pensated him for the restrictions discussed in Dr. Ander-
son’s medical opinion. The Board concluded that they did.
Specifically, the Board found that Dr. Anderson’s activity
recommendations were “already contemplated” in both of
Mr. Webber’s peripheral neuropathy awards. J.A. 18; see
also J.A. 52 (recognizing “loss of balance” and “instability”
as complications of peripheral neuropathy). The Board ac-
cordingly denied Mr. Webber a 40-percent diabetes rating
due to
38 C.F.R. § 4.14, which prohibits pyramiding vet-
eran disability awards and instructs that “[t]he evaluation
of the same disability under various diagnoses is to be
avoided.” The Board reasoned that it had to deny Mr. Web-
ber’s claim for an increased diabetes rating because, even
if Dr. Anderson’s opinion amounted to “regulation of activ-
ities” for diabetes, the Board could not “impermissibly dou-
ble-count[]” Mr. Webber’s activity impairments. J.A. 18.
Mr. Webber again appealed to the Veterans Court, as-
serting that the Board’s anti-pyramiding conclusion lacked
adequate reasoning. The Veterans Court disagreed and af-
firmed the Board. The Veterans Court determined that
“[t]he Board’s analysis [was] consistent with governing
law” and was “sufficiently detailed.” J.A. 6. Although
Mr. Webber also appealed the Board’s interpretation of
“regulation of activities” in the diabetes rating schedule,
the Veterans Court recognized that “[t]he Board’s analysis
does not require addressing the question” of regulatory in-
terpretation. J.A. 5–7. Mr. Webber now appeals to this
court. He argues that anti-pyramiding does not apply here
when § 4.14 is properly construed and that Dr. Anderson’s
medical opinion demonstrates the “regulation of activities”
required for a 40-percent diabetes rating.
Case: 21-2089 Document: 32 Page: 5 Filed: 04/20/2022
WEBBER v. MCDONOUGH 5
We have jurisdiction under
38 U.S.C. § 7292(c).
DISCUSSION
The Veterans Court properly construed the anti-pyra-
miding regulation to conclude that Mr. Webber could not
be doubly compensated for Dr. Anderson’s opinion that he
avoid “heights, climbing, or balancing.” J.A. 24. Sec-
tion 4.14 provides that “the same manifestation” of a disa-
bility should not be evaluated (and thus compensated for)
“under different diagnoses.”
38 C.F.R. § 4.14. As Mr. Web-
ber recognizes, the “rule against ‘pyramiding’ prohibits . . .
‘compensating a claimant twice (or more) for the same
symptomatology.’” Appellant’s Br. 8 n.2 (quoting Lyles v.
Shulkin,
29 Vet. App. 107, 113 (2017)); accord Amber-
man v. Shinseki,
570 F.3d 1377, 1381 (Fed. Cir. 2009).
And the Board found that that is exactly what
Mr. Webber seeks—compensation for the restrictions dis-
cussed in Dr. Anderson’s medical opinion under his diabe-
tes rating despite the fact that his peripheral neuropathy
ratings “already contemplated” Dr. Anderson’s activity
suggestions. J.A. 6. That is a factual finding that we can-
not disturb. Accordingly, we conclude that the Veterans
Court properly construed § 4.14 to affirm the Board.
Since we affirm the Veterans Court based on the con-
struction of § 4.14, we need not and therefore do not reach
Mr. Webber’s regulatory-interpretation argument regard-
ing § 4.119’s “regulation of activities.”
CONCLUSION
We have considered the parties’ remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm the Veterans Court.
AFFIRMED
COSTS
No costs.
