Franklin Gill v. Eric K. Shinseki , 26 Vet. App. 386 ( 2013 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3428
FRANKLIN GILL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued August 27, 2012 Decided October 28, 2013)
Kenneth M. Carpenter, of Topeka, Kansas, with whom R. Edward Bates, of Naperville,
Illinois, was on the brief for the appellant.
Michael J. A. Klein, with whom Will A. Gunn, General Counsel, R. Randall Campbell,
Assistant General Counsel, Leslie C. Rogall, Deputy Assistant General Counsel, all of Washington,
D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and DAVIS and PIETSCH, Judges.
KASOLD, Chief Judge: Veteran Franklin Gill appeals through counsel that part of a
September 11, 2012, decision of the Board of Veterans' Appeals (Board) that denied entitlement to
an initial disability rating higher than 10% for his service-connected hypertension.1 Mr. Gill argues
that the record medical evidence was inadequate for Board decision because the record did not
contain examination reports recording two or more blood pressure readings on at least three different
days, which he contends is required by 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 Note (1)
(2013), to determine an appropriate disability rating. The Secretary argues that the multiple blood
pressure readings required by Note (1) apply only with regard to an initial confirmation of a
diagnosis of hypertension, and not to the assignment of a disability rating. Because this appeal
1
Mr. Gill does not present any argument with respect to other matters in the Board decision. To the extent the
other matters may have been on appeal, they are abandoned and will not be addressed. See Johnson v. Shinseki,
26 Vet. App. 237, 239, 248 (2013) (en banc) (holding that "the Court need not address the Board decision with respect
to [ ] matters" that were not argued on appeal, and affirming only the Board's "decision regarding the matters before the
Court").
involves a regulatory interpretation of first impression, panel decision is warranted. See Frankel v.
Derwinski, 1 Vet. App. 23, 25-26 (1990). For the reasons stated below, that part of the decision that
is on appeal will be affirmed.
I. FACTS
On April 3, 2003, Mr. Gill filed a claim to reopen a December 1994 regional office (RO)
decision that denied service connection for hypertension. Although the RO did not reopen the claim,
the Board did so in a May 19, 2008, decision that also granted service connection. In September
2008, the RO implemented the May 2008 Board decision by (1) awarding benefits for hypertension
effective April 3, 2003, and (2) assigning a 10% disability rating for hypertension. Mr. Gill then
appealed to the Board for a higher disability rating and his claim was remanded by the Board in
February 2011 "to afford [Mr. Gill] an appropriate VA examination." Record (R.) at 118. Mr. Gill
was provided a VA examination on May 17, 2011. The examination report reflects a current blood
pressure reading of 130/652 and lists three blood pressure readings under a heading "Blood Pressure
Measurements for Established Diagnosis of Hypertension": 130/65; 126/78; 124/80.3 See R. at 222.
In the decision on appeal, the Board found that a higher disability rating was not warranted.
In doing so, the Board determined that the May 2011 examination report (1) adequately discussed
Mr. Gill's reported symptoms and blood pressure readings, and (2) substantially complied with the
February 2011 remand order. In support of its decision that a higher disability rating was not
warranted, the Board noted that Mr. Gill had numerous blood pressure readings throughout the rating
period and none of them reflected a diastolic pressure of 110 or more, or a systolic pressure of 200
or more, as required for a disability rating higher than 10%, see DC 7101 (e.g., providing a 20%
disability rating when "[d]iastolic pressure [is] predominantly 110 or more, or; systolic pressure [is]
predominantly 200 or more"). The Board also noted, inter alia, that (1) the highest blood pressure
reading in Mr. Gill's medical records reflects a diastolic pressure of 96 and a systolic pressure of 150,
and further noted that even these readings appeared to be abnormally high when compared with the
2
The top number represents the systolic pressure measurement and the bottom the diastolic pressure.
3
It appears that these measurements were taken the date of the examination.
2
numerous other readings in the record, and (2) Mr. Gill had not reported any readings greater than
those reflected in his medical records.
II. THE PARTIES' ARGUMENTS
Mr. Gill argues that once the February 2011 Board ordered a hypertension examination the
Secretary was required to give him an examination that included two or more blood pressure
readings on at least three different days, as he contends is required by DC 7101 Note (1). More
specifically, he argues that the plain wording of Note (1) – along with its location in the rating
schedule – requires that these readings be taken before a disability rating for hypertension can be
assigned. He further argues that, to the extent there may be ambiguity in Note (1), the Secretary's
comments in the December 11, 1997, Agency Final Rule for the "Schedule for Rating Disabilities;
The Cardiovascular System," 62 Fed. Reg. 65,207-01 (Dec. 11, 1997), reflect the Secretary's
contemporaneous interpretation that two or more blood pressure readings are to be taken on at least
three different days to warrant assignment of a disability rating for hypertension.
Mr. Gill further argues that, because the May 2011 examination did not comport with the
requirements of his view of Note (1), the Secretary violated his duty to provide an adequate
examination. See Barr v. Nicholson, 21 Vet. App. 303, 12 (2007) (when Secretary undertakes to
provide a medical examination, even if not required by law, Board must ensure the examination is
adequate).
The Secretary argues that the plain language of Note (1) applies only to the initial
confirmation of a diagnosis of hypertension, not to the assignment of a disability rating. He contends
that the location of Note (1) in the rating schedule is not dispositive because numerous other DCs
provide specific definitions for diagnoses. He further contends that, assuming Note (1) is deemed
ambiguous, his December 1997 explanation of the change in regulation, see 62 Fed. Reg. 65,207-01,
and VA Form 21-0960A-3 (a disability benefits questionnaire (DBQ) used for hypertension) support
the conclusion that Note (1) applies only to confirmation of a diagnosis of hypertension and not to
disability rating determinations. He argues that pursuant to Auer v. Robbins, 519 U.S. 452, 461-62
(1997), Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006), and Camacho v. Nicholson,
21 Vet. App. 360, 363 (2007), the Court must pay substantial deference to this interpretation.
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Further, the Secretary argues that, because Mr. Gill's arguments are based on a flawed reading of DC
7101, the Board's denial of a disability rating higher than 10% for hypertension should be affirmed.
III. ANALYSIS
A. Interpretation of DC 7101 Note (1)
The "interpretation of a . . . regulation is a question of law" that we "review de novo." Lane
v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003). The starting point in interpreting a regulation is
its plain language, for if the meaning of the regulation is clear from its language, that is the "end of
the matter." Tropf v. Nicholson, 20 Vet. App. 317, 320 (2006) (quoting Gardner v. Brown, 5 F.3d
1456, 1458 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994)). While the plain wording of the regulation
controls its interpretation, words generally are not to be read in isolation; rather, they should be read
in context of the regulatory scheme. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132 (2000) (noting that "[t]he meaning – or ambiguity – of certain words or phrases may only
become evident when placed in context"); cf. Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809
(1989) (noting that "[i]t is a fundamental canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in the overall statutory scheme").
If the meaning of a regulation is unclear from the language, the Court should defer to the
Secretary's interpretation of his own regulation so long as it is not inconsistent with the language of
the regulation or otherwise plainly erroneous. Smith, 451 F.3d at 1349 (citing Auer, 519 U.S. at
461-62); Mason v. Shinseki, 26 Vet. App. 1, 6 (2012); Tatum v. Shinseki, 24 Vet. App. 139, 142
(2010). Indeed, the Secretary's interpretation of his own regulations is entitled to substantial
deference. See Smith, 451 F.3d at 1349-51 (deference warranted where there was "no reason to
suspect that the interpretation does not reflect the agency's fair and considered judgment on the
matter in question"); see also Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352,
1364 (Fed. Cir. 2005) (substantial "deference is due to an agency interpretation of its own regulations
even when that interpretation is offered in the very litigation in which the argument in favor of
deference is made").
We begin with the language of DC 7101, which provides:
Diastolic pressure predominantly 130 or more...................................................60%
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Diastolic pressure predominantly 120 or more...................................................40%
Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly
200 or more.........................................................................................................20%
Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly
160 or more, or; minimum evaluation for an individual with a history of diastolic
pressure predominantly 100 or more who requires continuous medication for
control.................................................................................................................10%
Note (1): Hypertension or isolated systolic hypertension must be confirmed by
readings taken two or more times on at least three different days. For purposes of this
section, the term hypertension means that the diastolic blood pressure is
predominantly 90mm. or greater, and isolated systolic hypertension means that the
systolic blood pressure is predominantly 160mm. or greater with a diastolic blood
pressure of less than 90mm.[4]
Focusing on Note (1), it states that hypertension must be confirmed by at least two blood
pressure readings taken over several days, and it defines hypertension in terms of a specified level
of predominate blood pressure readings. Standing alone, the plain language of Note (1) says nothing
about a disability rating. On the other hand, Note (1) does not stand alone; it is part of DC 7101,
which provides varying disability ratings based on the predominant diastolic and systolic blood
pressure readings, with the number of readings required for a disability rating not otherwise
specified, unless specified by Note (1). Although the Secretary correctly notes that an individual
could have hypertension as defined in Note (1), but not be entitled to a 10% or higher disability
rating, this observation does not answer whether the Note (1) requirements for confirming
hypertension are also applicable – or inapposite – for assigning an appropriate disability rating,
which is dependent on a claimant having hypertension with predominate diastolic and systolic blood
pressure readings at specified levels. Accordingly, we examine whether the Secretary's current
interpretation of Note (1) – i.e., that it applies only to the initial diagnosis of hypertension – reflects
his considered judgment.
In support of his current interpretation, the Secretary references the explanation he provided
when promulgating the changes to Note (1) in 1997, specifically, the comment that
standard medical texts recommend multiple blood pressure readings
for the diagnosis of hypertension . . . . We have revised the note to
require that hypertension be confirmed by readings taken two or more
4
DC 7101 contains two other notes not at issue in this appeal.
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times on each of at least three different days. This will assure that the
existence of hypertension is not conceded based solely on readings
taken on a single, perhaps unrepresentative, day.
62 Fed. Reg. at 65,215 (emphasis added). Although there is no explicit limitation in this sentence
to an initial diagnosis of hypertension, the focus on confirming the existence of hypertension
supports the Secretary's general view on appeal that the specified number of readings applies only
to the confirmation of the existence of hypertension, as opposed to the level of hypertension
necessary for a particular disability rating.
We also note that the explanation further states that the changes to Note (1) were to "assure
more consistent ratings [based on] objective and quantifiable criteria whenever possible," and "[w]e
proposed to revise the note to state that careful and repeated measurements of blood pressure
readings are required prior to the assignment of any compensable evaluation." 62 Fed. Reg. at
65,207, 65,215. Taken alone, this part of the explanation can lead to a conclusion that the specified
blood pressure readings in the amended Note (1) are "required prior to the assignment of any
compensable evaluation." However, no such specificity with regard to disability ratings actually was
added to Note (1), and, read as a whole, the explanation of the changes made to Note (1) refers to
the need for "careful and repeated" blood pressure readings before a compensable rating is assigned,
and specifies the exact number of blood pressure readings required only when addressing the need
to confirm the existence of hypertension. Otherwise stated, the explanation, read as a whole, does
not mandate the interpretation of Note (1) proffered by Mr. Gill, but instead supports the Secretary's
interpretation.
The Secretary also points to the DBQ for hypertension, which explicitly requires two readings
over three days for confirmation of the initial diagnosis of hypertension, and three readings – on
presumably any date – if a veteran was diagnosed previously with hypertension. Although this form
went into effect in October 2012, a month after the Board decision now on appeal, it supports the
Secretary's current interpretation that the regulation requires two blood pressure readings over three
or more days only to confirm the existence of hypertension. That interpretation supports the
Secretary's interpretation on appeal of the scope of Note (1), which also is consistent with the
explanation he offered when Note (1) was modified in 1997. Mr. Gill fails to demonstrate that the
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Secretary's interpretation has varied at any time during the adjudication of his claim by the Secretary
and the Board. See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (appellant bears burden
of demonstrating error on appeal).
Overall, we find the Secretary's interpretation on appeal of Note (1) to DC 7101 to be
consistent with his explanation at the time Note (1) was modified and to reflect his considered
judgment as to the need for a specified number of blood pressure readings over multiple days to
confirm hypertension. We therefore defer to his interpretation and hold that the multiple blood
pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only
to confirming the existence of hypertension.
B. Adequacy of Examination
In the context of our holding above, we now review whether the Board clearly erred in
finding that the May 2011 examination report substantially complied with its earlier remand order
and otherwise was adequate, along with the other record medical reports, for Board decision. To be
adequate, a medical examination must describe the disability in sufficient detail so that the Board's
"'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown, 6 Vet. App.
405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)); see Acevedo v. Shinseki,
25 Vet. App. 286, 294 (2012) (noting that medical reports "must be read as a whole" in
determinations of adequacy); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (requiring a medical
opinion to "support[] its conclusion with an analysis that the Board can consider and weigh against
contrary opinions"). "Whether a medical opinion is adequate is a finding of fact which this Court
reviews under the 'clearly erroneous' standard of review." D'Aries v. Peake, 22 Vet. App. 97, 104
(2008).
The May 2011 examination report reflects three blood pressure readings that appear to have
been taken on one day. Although, standing alone, these blood pressure readings might be sufficient
to constitute the "careful and repeated" readings the Secretary explained (when promulgating the
1997 changes to DC 7101) were needed to determine the predominate blood pressure required under
DC 7101 for assigning consistent disability ratings, we need not decide such a narrow issue. This
is because Board decisions are to be based on the entire record, and, here, the Board did not rely on
only these three readings for its decision. 38 U.S.C. § 7104(a) ("Decisions of the Board shall be
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based on the entire record in the proceeding and upon consideration of all evidence . . . .");
McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006) (Secretary need not provide additional medical
evidence if there is sufficient medical evidence to decide the claim); Gabrielson v. Brown,
7 Vet. App. 36, 40 (1994) (noting that a medical opinion is "only that, an opinion" providing medical
evidence).
As the Board correctly found, the record contains numerous blood pressure readings over
multiple years, none of which support a disability rating over 10%, including the May 2011
examination blood pressure readings. The Board also noted that Mr. Gill did not report any blood
pressure readings greater than those readings contained in the record. Moreover, the 2011 Board
remand order did not specify what an adequate or appropriate VA examination would be, and the
same Board member who issued the 2011 Board remand order also issued the decision on appeal and
found the May 2011 examination report substantially compliant with his earlier remand order. In
the absence of some specific definition of what constitutes an "appropriate examination," and
because the record contains numerous blood pressure readings taken over multiple years through the
May 2011 medical report – none of which warrant a disability rating higher than 10% – we do not
find clear error in the Board's finding that the May 2011 examination report complied substantially
with the 2011 Board remand order such that the report, along with the other record medical reports,
was adequate for rating purposes. See 38 U.S.C. § 7104(a); D'Aries, supra; Gilbert v. Derwinski,
1 Vet. App. 49, 52 (1990) ("A finding is clearly erroneous when . . . the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed." (internal
quotation marks omitted)); see also Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007) (mere
passage of time, as opposed to evidence or allegation of a worsening disability, does not warrant
provision of new medical examination); Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (requiring
substantial compliance with Board remand orders).
IV. CONCLUSION
Upon consideration of the foregoing, that part of the Board's September 11, 2012, decision
that is on appeal is AFFIRMED.
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