Spicer v. Shinseki

United States Court of Appeals
for the Federal Circuit
______________________
DONALD SPICER (for Stephen Spicer),
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7142
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2009, Judge Alan G. Lance, Sr.
______________________
Decided: May 30, 2014
______________________
GARTH BAER, Finnegan, Henderson, Farabow, Garrett
& Dunner, L.L.P., of Washington, DC, argued for claim-
ant-appellant. With him on the brief were RONALD L.
SMITH and BENJAMIN T. SIROLLY.
NICHOLAS JABBOUR, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. On the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director,
MARTIN F. HOCKEY, JR., Assistant Director, and JAMES
SWEET, Trial Attorney. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
2 SPICER v. SHINSEKI
and CHRISTINA GREGG, Staff Attorney, United States
Department of Veterans Affairs, of Washington, DC. Of
counsel were CHRISTA A. SHRIBER and Y. KEN LEE.
______________________
Before LOURIE, CLEVENGER, and CHEN, Circuit Judges.
LOURIE, Circuit Judge.
Donald Spicer appeals from the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the decision of the Board of Veterans’
Appeals (“Board”) finding that Stephen R. Spicer (“Spic-
er”) was not entitled to an increased rating under 38
C.F.R § 4.71a, Diagnostic Code (“DC”) 5003. * See Spicer
v. Shinseki, No. 12-2009, 2013 WL 2902798 (Vet. App.
June 14, 2013). Because the Veterans Court did not err in
interpreting the governing regulation, we affirm.
BACKGROUND
Spicer served on active duty in the Navy from Febru-
ary 1984 to February 1987. In 1986, Spicer fractured his
left little finger aboard a ship when a door closed on his
hand. The fracture required surgery, which ultimately
resulted in the finger joint fusing. In 2007, a Department
of Veterans Affairs (“VA”) examiner diagnosed Spicer as
having degenerative arthritis of the distal interphalange-
al (“DIP”) joint in his left little finger. A VA regional
office denied Spicer a compensable rating for his left
finger disability, and Spicer appealed to the Board.
* Original Appellant Stephen R. Spicer passed away
from an apparent heart attack prior to oral argument.
Appellant’s counsel moved to substitute Spicer’s father,
Donald Spicer, as the party of interest under Fed. R. App.
P. 43. We granted the motion.
SPICER v. SHINSEKI 3
The Board denied Spicer’s increased rating claim. It
found that although Spicer’s left finger disability was
manifested by pain and limitation of motion, Spicer failed
to meet the criteria for a compensable evaluation for a left
finger disability under either DC 5227 or 5230.
Spicer then appealed to the Veterans Court, arguing
that the Board failed to consider DC 5003. Spicer, 2013
WL 2902798, at *2. Spicer argued that DC 5003 assigns a
10% rating for either a single affected major joint or a
group of affected minor joints and that 38 C.F.R. § 4.45(f)
does not mandate that multiple minor joints be involved.
Id.
The Veterans Court affirmed the Board’s decision,
holding that the Board did not err by failing to consider
DC 5003. Id. The Veterans Court found that “the DIP
joint is not a major joint or minor joint group for the
purpose of rating disabilities from arthritis.” Id. at 3
(citing 38 C.F.R. § 4.45(f)). The Veterans Court noted
that, although the Board did not separately consider the
applicability of DC 5003 to Spicer, any possible error was
harmless because DC 5003 was not applicable to Spicer.
Id. at 4. Spicer did not challenge the Board’s findings
under DC 5227 or 5230. Id. at 2.
This appeal followed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation thereof [by the Veterans Court] . . . and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.
§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
4 SPICER v. SHINSEKI
the facts of a particular case.” Id. § 7292(d)(2). We there-
fore generally lack jurisdiction to review challenges to the
Board’s factual determinations or to any application of
law to fact. See, e.g., Johnson v. Derwinski, 949 F.2d 394,
395 (Fed. Cir. 1991). But we do have jurisdiction here to
determine the proper interpretation of a regulation such
as DC 5003. See Amberman v. Shinseki, 570 F.3d 1377,
1381 (Fed. Cir. 2009) (exercising jurisdiction over review
of the Veterans Court’s interpretation of regulation with
rating schedule).
Section 4.71a of the VA regulations sets forth a
schedule of disability ratings for impairments of the
musculoskeletal system. See 38 C.F.R. § 4.71a. Within
that schedule, DC 5003 prescribes ratings for degenera-
tive arthritis. See id., DC 5003. The relevant portion of
the code reads as follows:
Degenerative arthritis established by X-ray find-
ings will be rated on the basis of limitation of mo-
tion under the appropriate diagnostic codes for the
specific joint or joints involved (DC 5200 etc.).
When however, the limitation of motion of the
specific joint or joints involved is noncompensable
under the appropriate diagnostic codes, a rating of
10 [percent] is for application for each such major
joint or group of minor joints affected by limitation
of motion, to be combined, not added under diag-
nostic code 5003.
Id. (emphasis added).
Section 4.45(f) of the VA regulations, a section preced-
ing the schedule of disability ratings for impairments of
the musculoskeletal system, lays out the “factors of disa-
bility” for joints. See 38 C.F.R. § 4.45(f). The relevant
portion of the code reads as follows:
As regards the joints the factors of disability re-
side in reductions of their normal excursion of
SPICER v. SHINSEKI 5
movements in different planes. Inquiry will be di-
rected to these considerations:
...
(f) Pain on movement, swelling, deformity or atro-
phy of disuse. Instability of station, disturbance
of locomotion, interference with sitting, standing
and weight-bearing are related considerations.
For the purpose of rating disability from arthritis,
the shoulder, elbow, wrist, hip, knee, and ankle
are considered major joints; multiple involvements
of the interphalangeal, metacarpal and carpal
joints of the upper extremities, the interphalange-
al, metatarsal and tarsal joints of the lower ex-
tremities, the cervical vertebrae, the dorsal
vertebrae, and the lumbar vertebrae, are consid-
ered groups of minor joints, ratable on a parity
with major joints.
Id. (emphases added).
Spicer argues that degenerative arthritis in a single
DIP joint results in a “group of minor joints affected by
limitation of motion” and can entitle a veteran to 10%
rating under DC 5003. Spicer asserts that a minor joint
group is affected when one of its minor members is affect-
ed, just as the minor joint group is affected when two or
more members are affected. Spicer argues that DC 5003
only establishes a 10% ceiling no matter how many minor
joints in a minor joint group are affected, as long as the
limitation of motion is otherwise noncompensable. Spicer
contends that § 4.45(f) does not address how to rate a
disability when only one minor joint is affected. Further,
Spicer argues that even if we find that the regulation is
ambiguous, the law requires us to resolve interpretative
doubt in favor of the veteran.
The Secretary responds that DC 5003 provides that
arthritis must result in a limitation of motion in two or
6 SPICER v. SHINSEKI
more minor joints in order to justify a 10% rating. The
Secretary contends that § 4.45(f) expressly defines the
term “group of minor joints” as including only “multiple
involvements” of interphalangeal joints. The Secretary
also responds that there is no ambiguity in the regulation.
We agree with the Secretary that the Veterans Court
did not err in interpreting DC 5003 to require limitation
of motion in more than one minor joint. The plain lan-
guage of DC 5003, read in view of § 4.45(f), makes clear
that “a minor joint group is affected” only when two or
more joints suffer from limitation of motion. See Lockheed
Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997)
(“To interpret a regulation we must look at its plain
language and consider the terms in accordance with their
common meaning.”).
Under DC 5003, when “the limitation of motion of the
specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 [percent]
is for application for each such major joint or group of
minor joints affected by limitation of motion . . . .”
§ 4.71a, DC 5003. The regulation places a group of minor
joints affected by limitation of motion on a par with a
major joint for purposes of qualifying for a 10% rating.
The question then becomes how to interpret “a group of
minor joints affected by limitation of motion.”
Section 4.45(f) states that “[f]or the purpose of rating
disability from arthritis, . . . multiple involvements of the
interphalangeal . . . joints . . . are considered groups of
minor joints, ratable on a parity with major joints.”
§ 4.45(f) (emphasis added). Thus, based on the plain
language of § 4.45(f), a group of minor joints requires
limitation of motion in more than one interphalangeal
joint. Interpreting the language from DC 5003, “affecting
the limitation of motion,” to allow for a 10% rating for
limitation of motion in a single interphalangeal joint
would be inconsistent with the clear language of § 4.45(f)
SPICER v. SHINSEKI 7
requiring more than one joint, or “multiple involvements.”
As a result, when DC 5003 is read in view of § 4.45(f), it is
clear that DC 5003 requires limitation of motion in two or
more interphalangeal joints to warrant a 10% rating.
That interpretation is not contrary to the Supreme
Court’s mandate that “interpretive doubt is to be resolved
in the veteran’s favor.” Brown v. Gardner, 513 U.S. 115,
117–19 (1994). There is no ambiguity in DC 5003, and
referencing § 4.45(f) to interpret DC 5003 does not create
interpretive doubt. See Nielson v. Shinseki, 607 F.3d 802,
808 (Fed. Cir. 2010) (“The mere fact that the particular
words of the statute standing alone might be ambiguous
does not compel us to resort to the Brown canon.”); cf.
Sursely v. Peake, 551 F.3d 1351, 1355–57 & n.5 (Fed. Cir.
2009) (applying Brown after other interpretive guidelines
did not resolve ambiguity). We thus conclude that under
the plain language of DC 5003 and § 4.45(f) a minor joint
group is affected only when two or more joints suffer from
limitation of motion. Accordingly, as a matter of interpre-
tation, the Veterans Court did not err in holding that
limitation of motion in a “group of minor joints” requires
more than one minor joint suffering from limitation of
motion to qualify for the 10% rating contemplated by DC
5003.
To the extent that Spicer’s appeal raises an issue of
application of DC 5003 and § 4.45(f) to the facts, such
issue is beyond our jurisdiction and we do not address it.
Johnson, 949 F.2d at 395.
CONCLUSION
We have considered Spicer’s remaining arguments
and conclude that they are without merit. Because the
Veterans Court did not err in interpreting the governing
regulation, we affirm.
AFFIRMED