Thomas M. Nielson v. Eric K. Shinseki , 2009 U.S. Vet. App. LEXIS 886 ( 2009 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 05-2311
THOMAS M. NIELSON , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued January 13, 2009 Decided May 21, 2009)
Kirsten V.K. Robbins, with whom Frederick C. Schafrick and Brooke E. McDonough, all of
Washington, D.C., were on the brief for the appellant.
Pamela M. Nash, with whom Paul J. Hutter, General Counsel; R. Randall Campbell,
Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, and MOORMAN, and DAVIS, Judges.
DAVIS, Judge: U.S. Air Force veteran Thomas M. Nielson appeals through counsel that
portion of a June 23, 2005, Board of Veterans' Appeals (Board) decision that denied him entitlement
to VA outpatient dental treatment and related dental appliances. This appeal is timely and the Court
has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court
will affirm the Board's June 2005 decision.
I. BACKGROUND
Mr. Nielson served in the U.S. Air Force from September 25, 1950, to September 24, 1954,
and from March 24, 1955, to October 11, 1957. During his service in the Korean Conflict between
June 6, 1952, and October 27, 1952, all but three of Mr. Nielson's teeth were extracted, most without
anesthesia.1 His remaining three teeth were removed while he was still in the military, but after he
returned to the United States. The military provided him a set of dentures in May 1953. On
discharge from the Air Force, his separation examination report listed all of his teeth as missing.
Mr. Nielson sought service connection for the loss of his teeth in April 1991. He also
requested VA "dental care (new dentures) in accordance with the provisions of" 38 U.S.C.
§ 612(6)(b)(1)(C) (now 38 U.S.C. § 1712) (furnishing outpatient dental services for service-
connected dental conditions due to combat injuries or "other service trauma"). Record (R.) at 173.
In a Feburary 1992 decision, VA afforded Mr. Nielson the presumption of soundness on entry into
service and granted service connection for the extraction of all his teeth, except for his wisdom teeth,
and assigned a noncompensable disability rating. As part of that decision, VA found that
Mr. Nielson's teeth extractions were not due to "service trauma" or "combat dental injuries." R. at
225. That same month, the Salt Lake City, Utah, VA medical center reviewed Mr. Nielson's
application for outpatient dental treatment and determined that because he did "not have a service-
connected dental condition or disability determined to be the result of combat wounds or other
injuries" he was not eligible for outpatient dental treatment under section 1712(a)(1)(C). R. at 233.
In June 1993, the Board affirmed that decision, and Mr. Nielson appealed to the Court. The Court
remanded the matter and ordered the Board to "consult with the [VA] General Counsel as to the
proper interpretation of 38 C.F.R. §§ 3.381(e) [(1993)] and 17.123(c) [now § 17.161(c) (2008)
(authorizing outpatient dental treatment for certain dental conditions resulting from combat wounds
or "service trauma")], particularly the definition of 'service trauma' and its application to the case at
hand." R. at 342.
On remand, the VA General Counsel opined that "merely to have had dental extractions
during service is not tantamount to dental trauma," and held that "[f]or the purposes of determining
whether a veteran has Class II[(a)] eligibility for dental care under 17 [sic] C.F.R. § 17.123(c), the
term 'service trauma' does not include the intended effects of treatment provided during the veteran's
military service." VA Gen. Coun. Prec. 5-97 (Jan. 22, 1997) [hereinafter G.C. Prec. 5-97]. Relying
on that opinion, the Board concluded that "the removal of the veteran's teeth in service by military
1
Although Mr. Nielson's service medical records are presumed destroyed in the National Personnel Records
Center fire, both parties suggest that Mr. Nielson suffered from periodontal disease.
2
dentists due to periodontal infection(s) does not constitute 'service trauma' and does not establish his
eligibility to receive Class II(a) outpatient dental treatment." R. at 35. Mr. Nielson appealed that
decision.
II. CONTENTIONS ON APPEAL
Mr. Nielson argues that the circumstances surrounding the extraction of his teeth qualify as
"service trauma." He asserts that the Board's statement of reasons or bases for its decision, which
relies on the General Counsel's opinion, is inadequate because that opinion fails to address the
specifics of his case as ordered by the Court and is otherwise unpersuasive. He also contends that
the Board was clearly erroneous in finding that the substandard dental care he received in service
does not constitute "service trauma."
The Secretary argues for affirmance of the Board's decision, asserting that because the Board
is bound by G.C. Prec. 5-97, "the Court cannot conclude that the Board's findings, consistent with
this opinion, were clearly erroneous." Secretary's Brief at 5. He also asserts that because G.C. Prec.
5-97 interprets a regulation and not a statute, it is entitled to substantial deference.
In response, Mr. Nielson argues that the Court owes no deference to the General Counsel
opinion because VA's regulation merely parrots the statutory language and thus is not an
interpretation of a regulatory term. He also reiterates his arguments that the General Counsel opinion
is unpersuasive and that the substandard dental care he received in service constitutes "service
trauma" under section 1712(a)(1)(C).
III. ANALYSIS
A. Statutory Interpretation
This case involves the proper interpretation of the meaning of the phrase "service trauma"
as used in 38 U.S.C. § 1712(a)(1)(C) and 38 C.F.R. § 17.161(c). "Outpatient dental services and
treatment, and related dental appliances, shall be furnished under this section only for a dental
condition or disability . . . which is a service-connected dental condition or disability due to combat
wounds or other service trauma." 38 U.S.C. § 1712(a)(1)(C); see 38 C.F.R. § 17.161(c) (authorizing
certain outpatient dental treatment for veterans with "service-connected noncompensable dental
3
condition or disability adjudicated as resulting from combat wounds or service trauma"). No doubt,
Mr. Nielson has a dental disability. To determine whether that disability is a condition caused by
service trauma, we must first determine the meaning of "service trauma" as used in section
1712(a)(1)(C). A statute's plain meaning is "derived from its text and its structure." Myore v.
Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) (quoting McEntee v. MSPB, 404 F.3d 1320, 1328
(Fed. Cir. 2005)); see Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's
plain meaning requires examining the specific language at issue and the overall structure of the
statute." (citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1988))), aff'd sub nom.
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). If "the plain meaning
of a statute is discernable, that 'plain meaning must be given effect,'" Johnson v. Brown, 9 Vet.App.
369, 371 (1996) (quoting Tallman v. Brown, 7 Vet.App. 453, 460 (1995)), unless a "'literal
application of [the] statute will produce a result demonstrably at odds with the intention of its
drafters,'" Gardner v. Derwinski, 1 Vet.App. at 586-87 (quoting Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564 (1982)); see also Roper v. Nicholson, 20 Vet.App. 173, 180 (2006). "[W]hen a
reviewing court 'find[s] the terms of a statute unambiguous, judicial inquiry is complete except in
rare and exceptional circumstances.'" Smith v. Derwinski, 2 Vet.App. 429, 431 (1992) (quoting
Demarest v. Manspeaker, 498 U.S. 184 (1991)). However, if a statute is ambiguous, "interpretive
doubt is to be resolved in the veteran's favor." Brown v. Gardner, 513 U.S. at 118; Padgett v.
Nicholson, 473 F.3d 1364, 1368 (Fed. Cir. 2007).
The plain meaning of a term "begins with its 'ordinary, contemporary, common meaning.'"
McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 420,
431 (2000)). It is commonplace to consult dictionaries to ascertain a term's ordinary meaning. See
United States v. Rodgers, 466 U.S. 475, 479 (1984); McGee, 511 F.3d at 1356; Telecare Corp. v.
Leavitt, 409 F.3d 1345, 1353 (Fed. Cir. 2005). The primary definition of the noun "trauma" is "an
injury or wound violently produced." WEBSTER 'S NEW TWENTIETH CENTURY DICTIONARY OF THE
ENGLISH LANGUAGE 1942 (2d ed. unabridged 1955). As an adjective, "service" means pertaining
to "the United States armed forces." Id. at 1658. Thus, the ordinary, contemporary, common
meaning–or plain meaning–of "service trauma" is an injury or wound violently produced while the
4
injured or wounded is in the armed forces.2
We must also consider this ordinary definition within the statutory framework. Of particular
relevance here is the phrase, "due to combat wounds or other service trauma." 38 U.S.C.
§ 1712(a)(1)(C). The language is clear that a dental disability caused by combat wounds would
entitle a veteran to outpatient treatment. Further, the conjunction "or" coupled with the adjective
"other" signifies that "combat wounds" are a type of "service trauma." Thus, the statute contemplates
myriad types of service trauma that would entitle a veteran to outpatient dental treatment. In
requiring service trauma, moreover, section 1712(a)(1)(C) is more restrictive than other subparts of
the statute. For example, section 1712(a)(1)(B) provides entitlement based on any type of
noncompensable service-connected dental condition or disability and sets forth the requirements that
must be met to receive the benefit. Namely, application must be made within 90 days after discharge
or release. See 38 U.S.C. § 1712(a)(1)(B)(iii). Section 1712(a)(1)(A) allows for treatment if the
service-connected condition is compensable in degree, and provides no other restrictions.
For the purposes of this appeal, section 1712(a)(1)(C) applies because Mr. Nielson does not
have a compensable service-connected dental disability, which subpart (A) requires, nor did he meet
the requirements of subpart (B). The added restriction of subpart (C) that the disability be due to
service trauma addresses Congress's intent to limit the indefinite entitlement to dental benefits to
veterans with noncompensable service-connected dental disabilities. See Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (Court "must give effect to unambiguously
expressed intent of Congress"). Only those veterans with a dental disability caused by a particular
type of event are entitled to dental benefits under section 1712(a)(1)(C). The ordinary definition
described above fits into this statutory framework.
Therefore, based on the ordinary definitions and the context of the statutory scheme, we hold
that the plain meaning of "service trauma" as used in section 1712 is an injury or wound violently
produced while the injured or wounded is in the armed forces. This meaning must be given effect.
2
See also F UN K & W AGN ALLS N EW P RACTICAL S TANDARD D ICTIONARY OF THE E N GLISH L AN GU AGE 1194, 1387
(1955) (Service: "of, pertaining to, or belonging to the U.S. military or naval service"; Trauma: "[a]ny injury to the body
or mind caused by shock, violence, etc.; a wound"); T H E A M ERICAN C O LLEGE D ICTION ARY 1107, 1289 (1955) (Service:
"(a) the armed forces . . . (b) period or duration of active service"; Trauma: "a bodily injury produced by violence");
B LACK 'S L AW D ICTION ARY 1533, 1671 (4th ed. 1951) (Service: "employment in one of the office, departments, or
agencies of the government"; Trauma: "[a] wound; any injury to the body caused by external violence").
5
See Johnson and Gardner, both supra. These terms are indeed unambiguous; therefore, judicial
inquiry is complete. See Smith, supra. Accordingly, a veteran is entitled to VA outpatient dental
services and dental appliances when he has a dental condition resulting from an injury or wound
violently produced while the veteran was in the armed forces.
B. Application of Statute
With this plain meaning of service trauma, we turn to the parties' arguments regarding
whether the Board erred in finding that Mr. Nielson did not suffer a service trauma that would entitle
him to outpatient dental treatment. In order for Mr. Nielson to succeed on his claim, his
noncompensable service-connected loss of teeth must have resulted from service trauma.
Mr. Nielson asserts that he experienced two events that should be accepted as service trauma. First,
he maintains that his service aggravated his periodontal disease and constituted service trauma.
Second, he contends that the actual extraction of his teeth without anesthesia was a service trauma.
The Board considered all of Mr. Nielson's contentions and found that "the removal of
[Mr. Nielson's] teeth in service by military dentists due to periodontal infection(s) does not constitute
'service trauma.'" R. at 35. Although the Board relied on G.C. Prec. 5-97, which held that "the term
'service trauma' does not include the intended effects of treatment provided during the veteran's
military service," G.C. Prec. 5-97, the General Counsel's opinion is of no consequence because the
statute is clear on its face. The Board's reliance on the General Counsel's opinion, however, is not
prejudicial to Mr. Nielson because the General Counsel's interpretation of the statute is consistent
with the Court's holding. See 38 U.S.C. § 7261(b)(2) (Court shall take due account of rule of
prejudicial error).
Both the Board and VA General Counsel reasoned that Mr. Nielson's teeth were extracted
as treatment for his periodontal disease and not as a result of service trauma. By removing his teeth,
they contend, the treatment objectives were met. Mr. Nielson requests that this Court conclude that
"service trauma" encompasses his treatment for periodontal disease. Simply stated, the extraction
of Mr. Nielson's teeth as a result of periodontal disease is not "service trauma" as contemplated by
38 U.S.C. § 1712(a)(1)(C). The Court cannot expand the plain meaning in a manner that would
include extractions necessitated by disease. There has been no finding that Mr. Nielson's dental
condition resulted from an injury or wound violently produced in the armed services. To the extent
6
that any of Mr. Nielson's other arguments suggest otherwise, his arguments are not persuasive.
IV. CONCLUSION
On consideration of the foregoing analysis and the parties' pleadings, the Court AFFIRMS
the Board's June 23, 2005, decision.
7