Luther D. Spicer, Jr. v. Denis McDonough ( 2021 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-4489
LUTHER D. SPICER, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 29, 2020 Decided September 14, 2021)
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.
TOTH, Judge, filed the opinion of the Court. ALLEN, Judge, filed a dissenting opinion.
TOTH, Judge: 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 VA's 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.
I. BACKGROUND
A.
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)
1
Technically, because Mr. Spicer's service from 1958 to 1959 did not fall within "a period of war," see
38 U.S.C. § 101(9), (11), the statute governing his case is not section 1110 but 38 U.S.C. § 1131, which covers veterans
who served "during other than a period of war." Save for the wartime/peacetime distinction, these two statutes are
"identical in all respects." Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). So, for simplicity's sake and consistent
with the parties, we'll focus our analysis on section 1110.
2
See VA RULE & PROCEDURE 1103 (1930) ("Disability compensation will accordingly be payable in all cases
where, from a medical standpoint, the present disability may reasonably be considered to be the result of the natural
progress of a properly service connected disease or injury, unless such finding is clearly negative by specific evidence
of an intervening cause."); see also id. (permitting compensation for a post-service disability "when such disability is
proximately due to or is the natural progress of a properly service connected injury or disease").
2
(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.
38 C.F.R. § 3.310(b).
B.
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
3
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.
II. ANALYSIS
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.
A.
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).
3
Although Mr. Spicer contends that the Board failed to address whether chemotherapy caused or worsened
his knee arthritis, he affirmatively waives this argument on appeal. Appellant's Br. at 4 n.2. Accordingly, this issue is
not before the Court.
4
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,
Congress directed that a pension—the word "compensation" not being used at the time—"may be
paid," subject to regulations issued by the Executive Branch, to "[a]ny person who served in the
active military or naval service and who is disabled as a result of disease or injury or aggravation
of a preexisting disease or injury incurred in line of duty in such service." Act of March 20, 1933,
Pub. L. No. 73-2, Title I, § 1(a), 48 Stat. 8, 8.4
Mr. Spicer focuses on the word "disability," which he describes as a "broad term."
Appellant's Br. at 6 (citing Saunders v. Wilkie, 886 F.3d 1356, 1362 (Fed. Cir. 2018)). He contends
that "any worsening in functional impairment from knee arthritis, manifesting in ways such as . . .
decreasing ability to walk and increasing incidence of falls, constitutes a worsening 'disability'
under" section 1110. Id. at 7-8 (citation omitted). Even accepting this understanding of the word
"disability," however, does not sustain the next link in this chain of reasoning—that the statute
"does not require worsening in functional impairment to result from the chemotherapy
etiologically." Id. at 8. A current disability and an adequate connection to service are two distinct
elements in the "three element test" for disability compensation. Walker v. Shinseki, 708 F.3d 1331,
1334 (Fed. Cir. 2012); see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (A veteran
seeking compensation "must still show the existence of a present disability and that there is a causal
relationship between the present disability and the injury, disease, or aggravation of a preexisting
injury or disease incurred during active duty. (emphasis added)).
B.
We focus on the key part of the phrase "disability resulting from" in section 1110—
namely, "resulting from"—and examine whether it is capable of bearing concepts of disability that
4
To implement the 1933 act, President Franklin Roosevelt issued an executive order promulgating Veterans'
Regulation No. 1(a), which read in relevant part: "For disability resulting from personal injury or disease contracted
in line of duty, or for aggravation of a preexisting injury or disease contracted or suffered in line of duty . . . ." EXEC.
ORDER NO. 6156 (June 6, 1933).
We discern no material difference between the phrases "as a result of" and "resulting from."
5
include the natural progression of a condition not actually caused or aggravated by a service-
connected disability but that nonetheless might have been less severe were it not for such disability.
Ultimately, we conclude that "resulting from" requires actual causality and so does not encompass
such disabilities.
During the period when Congress was enacting and reenacting the basic entitlement
statutes, "to result" from something meant "[t]o proceed, spring, or arise, as a consequence, effect,
or conclusion" of it. WEBSTER'S NEW INTERNATIONAL DICTIONARY 2126 (2d ed. 1934); see also
WEBSTER'S NEW INTERNATIONAL DICTIONARY 1937 (3d ed. 1961); BLACK'S LAW DICTIONARY
1478 (4th ed. 1957) (both providing the identical definition). This definition has not materially
changed since then. See, e.g., Murakami v. United States, 398 F.3d 1342, 1351 (Fed. Cir. 2005).
In discussing the plain meaning of the term "results from," the Supreme Court explained
that
[a] thing "results" when it rises as an effect, issue, or outcome from some action,
process, or design. "Results from" imposes, in other words, a requirement of actual
causality, namely that the causal agent, in some fashion, brings into being the
resulting condition. In the usual course, this requires proof that the harm would not
have occurred in the absence of—that is, but for
—the thing from which it purportedly results. Burrage v. United States, 571 U.S. 204, 210-11
(2014) (internal citations omitted). Indeed, "it is one of the traditional background principles
against which Congress legislates that a phrase such as 'results from' imposes a requirement of but-
for causation." Id. at 214 (internal citation omitted); see also Brown v. Gardner, 513 U.S. 115, 119
(1994) (the phrase "as a result of" "impose[s] the requirement of a causal connection").
Given that the phrase "resulting from" has for almost a century plainly expressed a
causation requirement, we must reject Mr. Spicer's contention that section 1110 doesn't contain an
etiological component. Although the veteran is not explicit, we understand him to use the word
"etiology" to refer to "the cause(s) or origin of a disease." Allen, 7 Vet.App. at 445 (emphasis
omitted). In this light, section 1110's "resulting from" language clearly requires an etiological
nexus and that language imposes "a requirement of actual causality." Burrage, 571 U.S. at 211.
Put another way, Congress's intention to provide compensation only in situations where there's an
etiological link between service and a disability's onset or worsening is evident from its use of the
phrase "resulting from."
6
Of course, this congressional choice does not mean that the path to obtaining disability
compensation is a narrow one. For example, in Payne v. Wilkie, 31 Vet.App. 373, 384 (2019), we
explained that the "causation requirement" in the phrase "the result of" was "broad," in that it
permitted entitlement to VA benefits "based on a multi-link causal chain." In the 1930 precursor
to § 3.310(a), VA recognized the first link when it explicitly permitted compensation for
disabilities caused by conditions that were themselves caused or aggravated by service. Then in
Allen, the Court reasoned that, under section 1110 and § 3.310(a), "when aggravation of a veteran's
non-service-connected condition is proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree of disability (but only that degree)
over and above the degree of disability existing prior to the aggravation." 7 Vet.App. at 448. This
reasoning followed from Allen's tacit realization that "aggravation is just causation of an increase
in disability—i.e., a discrete portion of disability—rather than of the whole disability itself." Walsh
v. Wilkie, 32 Vet.App. 300, 306 (2020); see also 71 Fed. Reg. 52,744, 52,745 (Sept. 7, 2006) (final
rule) (promulgating § 3.310(b) and recognizing that "[a]ggravation is a comparative term meaning
that a disability has worsened from one level of severity to another"). And another link in the chain
was added when VA awarded compensation for a disability caused by the medication a veteran
took to treat a service-connected condition. See Wanner v. Principi, 17 Vet.App. 4, 8 (2003).
But the breadth of the phrase "resulting from" covers all of these circumstances because,
in each, service or a service-related agent caused the functional impairment at issue—it brought
into being the actual impairment. That something "actually cause the claimant's disability" is "a
traditional but-for causation requirement, as opposed to the disability stemming from . . . the
natural progress of the claimant's preexisting disease, injury, or condition." Ollis v. Shulkin,
857 F.3d 1338, 1343 (Fed. Cir. 2017).
Mr. Spicer's knee arthritis did not, in any reasonable sense of the phrase, "result from" his
service-connected cancer or the chemotherapy provided to treat it. There is no contention on appeal
that they caused the arthritis or that they made it worse. The current state of his knee functionality
is not a consequence or effect of these service-related agents. At most, they interfered with his
attempts through affirmative intervention to alter the arthritis's natural progress. Unless we can say
that the current state of his arthritis would not exist in the absence of his cancer or chemotherapy,
however, there is no actual but-for causation. And but-for causation is what Congress required in
section 1110.
7
C.
It must also be noted that jettisoning the actual causality requirement would effect a radical
shift in how disabilities are evaluated. First, it would necessarily require wholly speculative
assessments regarding what level of functional impairment might exist if the counterfactual
scenario had occurred. Second, and contrary to longstanding practice, it would compensate for the
natural progression of disabilities that arose independently from a veteran's service. We briefly
address these in turn.
Speculative Assessments: VA compensation is concerned with the functional impairment
that a veteran suffers, rather than the specific diagnosis assigned to that impairment. See Saunders
v. Wilkie, 886 F.3d 1356, 1364-68 (Fed. Cir. 2018); see also Clemons v. Shinseki, 23 Vet.App. 1,
5 (2009) (noting that veterans seek compensation not for a "particular diagnosis" but for the
"affliction" it causes). Under Mr. Spicer’s theory, VA would have to resort to conjecture to assess
the difference between the current state of his knees and the less-severe state that might otherwise
exist if he could undergo the arthroplasty. So, even if we can be reasonably sure that arthroplasty
would remove arthritis from the knees, that change alone offers no reliable information regarding
the post-surgical functionality of those joints. Put differently, whatever the likelihood of a positive
outcome, it remains purely speculative to assume that Mr. Spicer's overall level of knee impairment
would necessarily be less after surgery.
Most importantly, there is no mechanism by which the VA can determine the specific level
of functional impairment following an intervening procedure or cause. But conjecture or
speculation, which is what this theory of service connection requires, cannot serve as the basis for
an award of disability compensation. See, e.g., Jones v. Shinseki, 23 Vet.App. 382, 390-91 (2010);
Polovick v. Shinseki, 23 Vet.App. 48, 54 (2009); 38 C.F.R. § 3.102 (2021). This is a clear sign that
section 1110 does not permit the award of disability compensation in these circumstances. Because
section 1110's "resulting from" language requires actual but-for causation (and, derivatively,
aggravation) of the disability at issue, the veteran's challenge to the validity of § 3.310(b) fails.
Natural Progression: Mr. Spicer posits that the only valid aspect of that provision is the
part that says "[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 . . . will be service
connected." He contends that the Secretary exceeded the scope of Allen's reasoning and
contradicted section 1110 when he made ineligible for compensation any increase in severity "due
8
to the natural progress of the nonservice-connected disease" and established the rubric by which a
"baseline level of severity" must be established before aggravation of a non-service-connected
condition is accepted. 38 C.F.R. § 3.310(b).
But § 3.310(b) is faithful to Allen. Recall we held that, "when aggravation of a veteran's
non-service-connected condition is proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree of disability (but only that degree)
over and above the degree of disability existing prior to the aggravation." 7 Vet.App. at 448
(emphasis added). In promulgating § 3.310(b), the Secretary explicitly noted this passage and
reasoned that, "to determine whether, and to what extent, a service-connected disease or injury has
aggravated a non service-connected disability, VA must be able to determine the pre-aggravation
severity of the disability in question." 62 Fed. Reg. 30,547, 30,547 (June 4, 1997) (proposed rule).
"Since some conditions are inherently progressive and worsen naturally over time," the Secretary
specified "that VA will not service-connect any increase in severity that is due to natural
progression." Id. This approach was "consistent with the manner in which VA determines the
degree of in-service aggravation of pre-existing disabilities," that is, "by comparing the severity of
the condition when the veteran entered and left active military service and excluding from
consideration any increase in severity that is due to the natural progression of the condition." Id.
at 30,547-48.
Allen reached its conclusion based on a close reading of section 1110 and regarded
§ 3.310(b) as consistent with the statute. Neither section 1110 nor any other statute specifically
provides for secondary service connection; the concept is expressly laid out only by regulation.
VA, as "an agency that has been granted authority to promulgate regulations necessary to the
administration of a program it oversees[,] may fill in gaps in the statutory scheme left by
Congress," and a regulation that does so is valid "as long as the agency's action is reasonable and
consistent in light of the statute and congressional intent." Sears v. Principi, 349 F.3d 1326, 1329
(Fed. Cir. 2003) (internal citations omitted). Or, as Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984), put it originally, "if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute."5
5
Mr. Spicer cites the statement in Ward v. Wilkie, 31 Vet.App. 233, 239 (2019), that § 3.310(b) "is not
9
Section 3.310(b) is consistent with section 1110 and permissibly construes it in conjunction
with other statutory principles enunciated by Congress. Section 1110's "resulting from" language,
as discussed above, conditions compensation on the actual but-for causation of a disability. The
regulation adheres to this formulation by permitting compensation for "[a]ny increase in severity
of a nonservice-connected" condition "that is proximately due to or the result of a service-
connected" condition. 38 C.F.R. § 3.310(b) (emphasis added).6 And by expressly excluding from
compensation any increase in severity "due to the natural progress of the nonservice-connected
disease," the regulation simply makes explicit that a disability's affirmative increase in severity
(i.e., aggravation) caused by something else differs in kind from the natural worsening of that
disability on its own. See Ollis, 857 F.3d at 1343 (noting that traditional but-for causation of a
disability contrasts with disability stemming from the natural progress of a preexisting condition).
Moreover, the Secretary's deliberate borrowing of the "natural progress" language from
section 1153, see 62 Fed. Reg. at 30,547, synthesizes two separate but related statutes that address
a common issue. "While section 1110 mandates that a veteran be compensated for a preexisting
injury that is aggravated in service, section 1153 sets forth how such a veteran establishes that a
preexisting condition was aggravated by service, so that he is entitled to the disability
compensation benefits authorized by section 1110." Donnellan v. Shinseki, 24 Vet.App. 167, 175
(2010) (quotation marks omitted). Congress used two sections to set forth the concept of direct
service connection. The Secretary integrated these principles into a single section that lays out
secondary service connection. His authority to explicate the whole concept of secondary service
connection as it derives from section 1110's "resulting from" language certainly permits him to
define the terms he uses in harmony with a standard established by Congress in section 1153.7
entitled to Chevron deference" because it "is not an interpretation of a statute" but "is based on the Secretary's
perception of what this Court required in Allen." Since the Secretary did not invoke Chevron deference in Ward, and
because a court need not consider Chevron where the government decides not to raise it, see HollyFrontier Cheyenne
Refining, LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2180 (2021), Ward's statement was simply dicta unnecessary
to its holding and is not binding in this case. Although Allen was the primary impetus for promulgating § 3.310(b),
that case did not resolve all the details addressed in the regulation, and the Secretary—as he was obliged to do—
drafted subsection (b) in accordance with section 1110 and other statutory principles.
6
While the phrase "proximately due to" has always been part of this regulation, see note 2, supra, we note
that the parties do not discuss the role it plays here. Accordingly, we have no occasion to consider that question.
7
Nothing in Allen or Ward, it should be noted, directly calls the Secretary's inclusion of the "natural progress"
language in § 3.310(b) into question.
10
Here, the Board concluded that the record did not show that knee arthritis is proximately
due to, or the result of, his service-connected leukemia, or that leukemia caused "worsening beyond
natural progression" of the veteran's arthritis by his leukemia, "as is required by 38 C.F.R. § 3.310."
R. at 6. Mr. Spicer doesn't contend that he is entitled to compensation for arthritis under these
criteria. And, despite our authority to "hold unlawful and set aside" regulations that are "not in
accordance with law," 38 U.S.C. § 7261(a)(3)(A), we discern no legal infirmity in § 3.310(b).
Accordingly, we uphold as valid both § 3.310(b) and, based on that provision, the Board's denial
of compensation in this case.
D.
Finally, the sources the veteran cites fall short of recognizing the theory of secondary
service connection he now advocates. For instance, it’s true that in Burris v. Principi, 15 Vet.App.
348, 350-51 (2001), we noted a surviving spouse's theory that the cause of her husband's death—
skin cancer—should be deemed connected to service because his exposure to mustard gas while
in the Army "prevented normal treatment and cure" of the cancer, as well as the fact that the VA
granted that service connection. But the appeal to this Court had nothing to do with that issue, and
we did not discuss such a theory of service connection, much less endorse its legal validity. A lone
20-year-old regional office decision does not undermine the foregoing analysis.
Nor does the nonprecedential single-judge decision in Caton v. Shinseki, No. 10-2399,
2012 U.S. App. Vet. Claims LEXIS 162 (Feb. 3, 2012). The Court there seemed to accept the
viability of a compensation claim premised on the fact that the veteran couldn't ameliorate the pain
(and, hence, functional impairment) stemming from his (non-service-connected) multi-joint
arthritis because the medication he would use to do so aggravated his (service-connected) duodenal
ulcer. Id. at *8-11. But the nonprecedential decision doesn't undertake the sort of textual inquiry
that we have in this case. In fact, the decision doesn't offer much analysis at all to support its
conclusion. Based on its reasoning, Caton holds little persuasive value.
The agency actions he invokes are of no help to the veteran either. In a 2017 precedential
opinion, the VA general counsel concluded that obesity was not itself a disability for which
compensation could be paid but could constitute an "intermediate step" in a theory in which a
service-connected disability causes obesity and, in turn, obesity causes another disability. See
Walsh, 32 Vet.App. at 303. In Walsh, we concluded that the general counsel opinion's focus on
causation in the first step should not be read as excluding aggravation as a legally relevant
11
consideration, especially since such a reading would be at odds with § 3.310(b). Id. at 307. But we
were careful to cabin our analysis to the question of whether the general counsel opinion was
consistent with § 3.310; we did not address "any other aspect" of the opinion. Id. at 306 & n.5.
Mr. Spicer focuses on the causation example used by the general counsel opinion. It
suggested that a service-connected disability that caused obesity by preventing a veteran from
exercising could form the first link in the nexus chain. Id. at 303. Mr. Spicer analogizes this
situation to chemotherapy preventing him from obtaining knee surgery, and he argues that he is
likewise due compensation. But the key difference in the general counsel's example is that the lack
of exercise caused something: it brought on obesity or exacerbated it. So, even if the whole opinion
interprets the law properly, it doesn't support Mr. Spicer's arguments.
III. CONCLUSION
Having fully considered the matters raised in this appeal, the Court AFFIRMS the August
2, 2018, Board decision.
ALLEN, Judge, dissenting: Luther Spicer served the Nation honorably in the United States
Air Force. He is service connected for leukemia. There is no dispute – none at all – that the
treatment he underwent for his leukemia has prevented Mr. Spicer from having surgery to treat his
bilateral knee condition. Yet, despite these undisputed facts, the majority holds that Mr. Spicer is
not entitled to service connection for his knee disability because it was not actually caused by his
service or his service-connected leukemia. Because that conclusion is inconsistent with what
Congress intended and unnecessarily disserves veterans, I respectfully dissent.
All agree that the key to resolving this appeal is the phrase "[f]or disability resulting from"
in section 1110. 8 The majority advances a narrow interpretation of that phrase. In my view,
however, the statute sets out a much broader, causation-based standard. And because that is so, I
also believe that VA's regulation implementing section 1110, 38 C.F.R. § 3.310(b), improperly
limits that language in a way Congress did not intend. Therefore, I would hold that the regulation
is not a permissible construction of section 1110.
8
For consistency with the majority's opinion, I too discuss only section 1110 but note that section 1131 is
essentially identical and warrants the same analysis.
12
The "resulting from" language provides for basic causation without limitation and should
be interpreted broadly. As the majority points out, our Court considered the phrase "the result of"
in Payne v. Wilkie in the context of special monthly compensation for a veteran who "as the result
of service-connected disability, has suffered the anatomical loss or loss of use of one or more
creative organs."9 The Court held that this language included a "causation" requirement that was
broad.10 The Court relied on the definition of "the result of" as "'naturally read simply to impose
the requirement of a causal connection'."11 Using this broad, causation-based definition of "the
result of," the Court held that section 1114(k) did not preclude entitlement to special monthly
compensation based on a multi-link chain so long as a claimant was able to meet basic causation
requirements.12
Similarly, the U.S. Court of Appeals for the Federal Circuit interpreted the phrase "as a
result of" as "broad language" of causation in the context of the Civil Liberties Act of 1988. 13
Relying on the dictionary definition of "result" as "'to proceed, spring, or arise as a consequence,
effect, or conclusion'," the Federal Circuit held that "as a result of" requires a showing of "a
consequence or effect."14 The court explained that this definition was consistent with the Supreme
Court's and other circuit courts' interpretation of the same phrase.15
The Federal Circuit was correct that other circuit courts have interpreted the phrase "as a
result of" as embodying broad causation principles. For example, the U.S. Court of Appeals for
the Tenth Circuit, in interpreting Army regulations to determine whether a crash could be classified
as a Department of Defense (DoD) mishap, considered the definition of a mishap, which included
the phrase "as a result of DoD operations."16 Looking at the plain language of the regulation, the
9
31 Vet.App. 373, 383 (2019) (interpreting 38 U.S.C. § 1114(k)).
10
Id. at 384.
11
Id. (quoting Brown v. Gardner, 513 U.S. 115, 119-20 (1994)).
12
Id. at 385.
13
Murakami v. United States, 398 F.3d 1342, 1351 (Fed. Cir. 2005).
14
Id. (quoting Webster's Third New International Dictionary 1937 (1993)).
15
Id. at 1351-52 (citing Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 975 (10th Cir. 1994) ("The
use of the plain language – 'as a result of – is logically interpreted to mean 'caused by.'")).
16
Black Hills Aviation, Inc., 34 F.3d at 974-75.
13
court determined that the "as a result of" language logically meant "caused by."17 Additionally, the
U.S. Court of Appeals for the Ninth Circuit looked specifically at the phrase "resulting from" in
the context of an immigration regulation administered by the United States Citizenship and
Immigration Services (USCIS).18 Relying on the dictionary definition of "result" as a consequence
or "to proceed as an outcome or conclusion," the court found that the phrase in the regulatory
provision "a technical violation resulting from inaction of [USCIS]" meant that such a violation
occurred "only if the violation is a consequence or effect of USCIS's inaction."19
Consistent with all these authorities, it is clear to me that the phrase "resulting from" in
section 1110 provides for compensation when a disability is the consequence or effect of military
service. Stated another way, the statute's language merely requires that one thing flow from
another, namely that a disability flow from military service. Congress imposed no other limitations
in connection with establishing service connection beyond this broad, causation-based principle
that one thing be a consequence of another.
Congress could have provided other requirements for or limitations on establishing service
connection that would have narrowed the scope of the broad "resulting from" language it
employed. For example, Congress could have expressly required an etiological relationship
between two conditions. It did not do so despite what the majority holds, and it is inappropriate
for us to read in any such limitation.20 "If Congress had intended such a limited effect, it could
have crafted a more narrowly tailored statute."21 It simply is not our place as judges to judicially
adopt legislation we might have enacted as legislators.
In fact, we do not just assume that Congress knows how to limit the scope of a causation
principle because it did precisely that in 38 U.S.C. § 1153, the statutory provision governing
aggravation of a preexisting disability by military service. Although the majority sees the language
of section 1153 as supporting its narrower interpretation of the causation required by section 1110,
the fact that Congress used more limiting language requiring an "increase in disability" "due to the
17
Id. at 975.
18
Attias v. Crandall, 968 F.3d 931 (9th Cir. 2020).
19
Id. at 937.
20
Bates v. United States, 522 U.S. 23, 29 (1997) (noting that "we resist reading words or elements into a
statute that do not appear on its face").
21
Doyon, Ltd. v. United States, 214 F.3d 1309, 1316 (Fed. Cir. 2000).
14
natural progress of the disease" to rebut the presumption of aggravation in section 1153 but left it
out of section 1110 is telling. When Congress chooses to include limitations in one situation but
omits such limitations in another, we can safely assume that it did so intentionally.22 "Congress
plainly knew how to deploy adjectives when it wished to modify the meaning of the word
'cause.'"23 If it had wanted to impose a requirement such as "beyond the natural progress of the
disease" to section 1110, "Congress could readily have inserted such a requirement into the
statutory text."24
Moreover, this interpretation of "resulting from" as a broad, causation-based principle is
not foreign to the law. For example, when causation is a relevant concept under the common law,
it tends to be the same consequence-based approach I believe Congress included in section 1110.
While I am not suggesting that Congress necessarily had such principles in mind when drafting
section 1110 or that it sought to import them into federal law, the fact that these concepts are not
revolutionary in the law provides a check of sorts suggesting that my reading is valid.
A prime example of a common law principle embodying the broad causation principle is
the "loss of opportunity doctrine." This is "a medical malpractice form of recovery that allows a
plaintiff, whose preexisting injury or illness is aggravated by the alleged negligence of a physician
or health care worker, to recover for her lost opportunity to obtain a better degree of recovery." 25
"The plaintiff's loss of opportunity injury is an adverse or unintended consequence resulting from
the defendant's negligence, error, omission, or failure to diagnose."26 The question in these types
of cases involves whether a "better result" could be achieved but for the action of the defendant.27
Thus, the doctrine makes clear that, in the medical malpractice context, a plaintiff is not limited to
recovering damages only for an action that makes his or her condition worse. Such a plaintiff may
also recover damages when an action prevents that person from improving a condition. That
22
See Russello v. United States, 464 U.S. 16, 23 (1983) ("'[W]here Congress includes particular language in
one section of a statute but omits it in another section . . . it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion'.") (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th
Cir. 1972).
23
Viegas v. Shinseki, 705 F.3d 1374, 1383 (Fed. Cir. 2013).
24
Id.25
Lord v. Lovett, 770 A.2d 1103, 1104-05 (N.H. 2001).
26
Id. at 1106.
27
See Holton v. Memorial Hosp., 679 N.E. 2d 1202 (Ill. 1997).
15
causation-based principle is entirely consistent with the interpretation of "resulting from" I have
discussed.
Another concept that is instructive relates to the mitigation of damages in torts. Generally,
a plaintiff has a duty to seek medical treatment or follow a doctor's recommendation to minimize
his or her damages, including a duty to submit to surgery if that surgery would reduce the plaintiff's
damages.28 The notion is that a defendant should not be held responsible for consequences of an
act after the point at which a reasonable person would be able to make a condition better or stop it
from getting worse. However, when a victim of a wrongful act cannot take such steps, the duty to
mitigate damages does not prevent recovery.29 In these cases, a defendant would still be liable for
the continued consequences of the wrongful act despite the plaintiff's failure to mitigate his or her
damages because of the consequence-based principles of causation.30
These two doctrines illustrate two important points in this case. First, a broad understanding
of causation is common under the law and has been read to include the loss of a better result in
addition to the worsening of a condition in other contexts. Second, this construction of causation
raises the question why Congress would provide a narrower conception of causation for veterans
– a most favored class of citizens31 – than is provided for other classes of claimants, such as
medical malpractice or federal civil rights plaintiffs. The majority's narrow construction of
causation for veterans does not fit with the way Congress has legislated veteran's law throughout
its history. Thus, a broader definition of causation under section 1110 is warranted.
Because I interpret causation under section 1110 as requiring nothing more than that one
thing flow from another, I also disagree with the majority's holding that VA's implementing
regulation, 38 C.F.R. § 3.310(b), is consistent with section 1110. In adopting § 3.310, the Secretary
expressly acknowledged that his authority flowed from section 1110.32 Thus, we must ensure that
the Secretary has not exceeded that authority in implementing § 3.310(b) given the meaning of
section 1110. As discussed above, I read section 1110 as clear about what is required to establish
28
See Quillette v. Sheerin, 297 Mass. 536, 543, 9 N.E.2d 713, 717 (Mass. 1937).
29
Baglio v. New York C. R. Co., 344 Mass. 14, 180 N.E.2d 798 (Mass. 1961).
30
See Stark v. Shell Oil Co., 450 F.2d 994 (5th Cir. 1971).
31
See Skaar v. Wilkie, 32 Vet.App. 156, 181 (2019) (citing Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 441 (2011)).
32
See 62 Fed. Reg. 30,547 et seq. (Jun 4, 1997); 71 Fed. Reg. 52,744 (Sept. 7, 2006).
16
service connection for compensation purposes: that a disability flow from, or is a consequence or
effect of, military service. For me, "that is the end of the matter."33
Section 3.310(b) inappropriately imposes limitations on the broad causation-based
standard Congress set out in section 1110. The regulation begins by providing that "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" is subject to service-connected compensation.34 This
provision of the regulation is entirely consistent with the scope of section 1110's broad "resulting
from" language. In fact, this Court in Walsh held that this language in § 3.310(b) "is essentially
identical" to the language in § 3.310(a), governing secondary service connection on a direct basis
using essentially express causation language.35 The Court noted that "aggravation is just causation
of an increase in disability – i.e., a discrete portion of disability – rather than of the whole disability
itself."36 In sum, Walsh confirms that the causation element in § 3.310(b) is consistent with section
1110.
However, there is more in the regulation. Section 3.310(b) also requires that the increase
is "not due to the natural progress of the nonservice-connected disease." But this "natural progress"
language is inconsistent with section 1110 because it places an extra requirement, or limitation, on
top of the broad causation requirement articulated in the statute. "['R]egulations must, by their
terms and in their application, be in harmony with the statute. A [r]egulation which is in conflict
with or restrictive of the statute is, to the extent of the conflict or restriction, invalid.'"37 Under the
statute, if a service-connected disability prevents a veteran from making a non-service-connected
condition better, the non-service-connected condition's lack of improvement "result[s] from"
military service under bedrock causation principles. Yet, under the regulation, the non-service-
connected condition could not merit compensation because it would not be worse than it would
33
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984); see Welcome v. Wilkie,
33 Vet.App. 77, 80 (2020) (articulating the analytical framework for applying Chevron).
34
38 C.F.R. § 3.310(b).
35
Walsh v. Wilkie, 32 Vet.App. 300, 305 (2020).
36
Id. at 306.
37
Citizen's National Bank of Waco v. United States, 417 F.2d 675, 679 (5th Cir. 1969) (quoting Scofield v.
Lewis, 251 F.2d 128, 132 (5th Cir. 1958)); see also Crumlich v. Wilkie, 31 Vet.App. 194, 203 (2019); Staab v.
McDonald, 28 Vet.App. 50, 55 (2016).
17
have been without military service. VA cannot through § 3.310(b) take away what Congress
provided in section 1110.
Another factor highlights why the "natural progress" language is inconsistent with section
1110 and is perhaps where my view diverges most starkly from the majority. Specifically, the fact
that this language comes from an entirely different statutory provision – section 1153 – than that
which authorized the regulation is troubling. In connection with the adoption of § 3.310(b), the
Secretary acknowledged that the language we are discussing came from 38 U.S.C. § 1153.38 In
proposing the regulation, the Secretary noted:
Since some conditions are inherently progressive and worsen naturally over time,
we propose to specify that VA will not service-connect any increase in severity that
is due to natural progression. These requirements would be consistent with the
manner in which VA determines the degree of in-service aggravation of preexisting
disabilities.[39]
Later in adopting the final version of the regulation, VA explained that it referenced section 1153
to provide an example for how an aggravation analysis could work under §3.310(b).40
What this means is that to implement the broad causation-based "resulting from" language
in section 1110, VA imported language from a different statute, one that Congress enacted with a
far narrower causation principle. In doing so, the Secretary acted inappropriately, only reinforcing
why the "natural progress" language in § 3.310(b) is not a "permissible construction" of section
1110.41 While the majority views this importation of language from section 1153 as bolstering
§ 3.310(b) as a "deliberate borrowing" of language that "synthesizes two separate but related
statutes that address a common issue,"42 nothing in the Secretary's adoption of § 3.310(b) tells us
that section 1153 has any bearing on secondary service connection. Thus, I disagree with the
majority's reliance on section 1153 to support its interpretation of the regulation as a valid
construction of section 1110 under the Secretary's authority. I simply do not see how one can
support the propriety of narrowing section 1110's "resulting from" standard by adopting a
38
62 Fed. Reg. 30,547, 30,547 (Jun 4, 1997).
39
Id.40
71 Fed. Reg. 52,744 (Sept. 7, 2006).
41
See Chevron, 467 U.S. at 844.
42
See supra at 10.
18
regulation that quotes a different statutory provision in which Congress chose to use more limited
language of causation.
Turning to the facts of this case, I would reverse the Board's finding that secondary service
connection for appellant's bilateral leg disabilities was not warranted. The parties agree that
appellant has a bilateral knee condition for which he cannot receive surgery due to low hemocrit
levels caused by chemotherapy to treat his service-connected leukemia.43 In other words, there is
no dispute that (1) appellant has a service-connected condition, leukemia; (2) appellant has a non-
service-connected condition, a bilateral knee condition; and (3) the reason that appellant cannot
make his knee condition better (or perhaps stop it from getting worse as it would in its natural
condition) is the treatment he receives for his service-connected leukemia. Additionally, as
discussed above, the Board's legal conclusion that "[t]he 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" 44 is
wrong. Because the facts are not in dispute and the law does not prohibit service connection on the
theory appellant asserts, I would reverse the Board's decision denying service connection for
appellant's bilateral knee condition as secondary to his service-connected leukemia and remand for
VA to award Mr. Spicer what he is due.45
The majority is concerned about the speculative nature of assessing appellant's level of
knee impairment due to his inability to have surgery.46 Although I agree that such an assessment
may be complex, VA adjudicators address complex issues every day with the evidentiary tools at
their disposal. For example, often adjudicators turn to medical examiners to provide expert
opinions on a veteran's degree of disability at some time in the past, when the examiner would not
have had the benefit of a full contemporaneous examination to make that determination. Yet
medical examiners review the evidence of record and provide their most informed
recommendations. Adjudicators then look for competent, credible evidence to support causation
or disability levels and weigh the evidence to reach a conclusion. Those evidentiary determinations
43
R. at 23.
44
Id.
45
See Johnson v. Brown, 9 Vet.App. 7, 10 (1996) ("[W]hen the only permissible view of the evidence is
contrary to that found by the [Board], reversal is the appropriate remedy."); see also Deloach v. Shinseki, 704 F.3d
1370, 1380 (Fed. Cir. 2013); Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004).
46
See supra at 8.
19
are subject to deference upon review in this Court. None of those things change under my
interpretation of § 3.310(b).
Additionally, secondary service connection by its nature requires complex causation
analyses, and limiting secondary service connection only to conditions that cause a condition to
worsen as opposed to preventing it from getting better would not eliminate that complexity. For
example, the Court and VA's General Counsel have both recognized that obesity may be a link in
a chain of causation connecting a non-service-connected condition to a service-connected
condition.47 That principle injects complexity into the analysis because, whenever one allows a
chain of causation to satisfy a standard, the analysis will become more complicated than when the
law requires a more "direct" relationship.
My point is that a broader definition of causation does not create any complexity in
adjudication that is not already present in the system. In fact, Mr. Spicer's case does not actually
present a complex causal chain at all. His cause and effect theory is as direct as one could imagine.
Here, there is no dispute about Mr. Spicer's inability to undergo knee surgery because of treatment
and symptoms related to his service-connected leukemia. That is not likely to be true for every
case about the inability to improve a condition. But if there was a dispute, the Board could resolve
it in its role as factfinder as it does all the time with factual questions ranging from the simple to
the complex.
Finally, the majority is concerned with what it deems a "radical shift" in how disabilities
are evaluated under a broader interpretation of causation than it adopts.48 However, both the
Supreme Court and Federal Circuit have warned against courts relying on policy considerations
when the law is clear. The Supreme Court has explained that "'even the most formidable' policy
arguments cannot 'overcome' a clear statutory directive."49 Instead, the Supreme Court noted that
"this Court's task is to discern and apply the law's plain meaning as faithfully as we can, not 'to
assess the consequences of each approach and adopt the one that produces the least mischief.'"50
47
See Walsh, 32 Vet.App. at 302; see also VA Gen Coun. Prec. 1-2017 (Jan. 6, 2017).
48
See supra at 8.
49
BP P.L.C. v. Mayor and City Council of Baltimore, __ U.S. ___, ___, 141 S.Ct. 1532, 1542, 209 L.Ed.2d
631 (2021) (quoting Kloeckner v. Solis, 568 U.S. 41, 56, n.4 (2012)).
50
Id. (quoting Lewis v. Chicago, 560 U.S. 205, 217 (2010)).
20
The Federal Circuit recently emphasized this point in the context of regulatory
interpretation when it rejected this Court's decision in Turner v. Shulkin51 that had articulated a
"triggering principle" with respect to the constructive receipt doctrine in the context of 38 C.F.R.
§ 3.156(b).52 We had imposed a "triggering principle" based in large part because of what we
feared could be a negative impact on VA's adjudicative process as a practical matter.53 The Federal
Circuit rejected such practicality-based means of interpretation (there of a regulation as opposed
to a statute), holding that there was "no legal basis for adding such a requirement." 54 Thus, the
Federal Circuit made clear that there is no room for policy concerns when the law is clear – we are
bound by the law. The majority seems to fall into this trap in its interpretation of section 1110 and
§ 3.310(b) here.
In sum, I believe that our Nation's veterans are entitled to the broad definition of causation
Congress provided. Because Congress intended a broad understanding of causation to establish
service connection under section 1110, it was improper for VA to limit it by imposing restrictions
found in a different statutory provision. Thus, § 3.310(b) is not a permissible construction of the
statute. Given my understanding of the governing law and the undisputed facts of this case, I would
reverse the Board's denial of secondary service connection for appellant's bilateral leg disability.
Because the majority reaches a different conclusion, one at odds with what Congress sought to do,
I respectfully dissent.
51
29 Vet.App. 207 (2018).
52
Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020).
53
Turner, 29 Vet.App. at 217.
54
Lang, 971 F.3d at 1355.
21