Tuesday, April 14, 2009

Duty to assist under 38 U.S.C. § 5107(a) is separate from VA’s mandate to fully develop veteran’s claim, FedCir. Roberson v. Principi, No. 00-7009

However, the duty to assist under 38 U.S.C. § 5107(a) is a duty to assist a claimant "in developing the facts pertinent to the claim," and that duty is separate from the VA’s mandate to fully develop the veteran’s claim.
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U.S. Fed Circuit Court of Appeals
ROBERSON v PRINCIPI

United States Court of Appeals for the Federal Circuit

00-7009

HOWARD F. ROBERSON,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.


Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director; and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief were Donald E. Zeglin, Acting Assistant General Counsel; and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Donald L. Ivers

United States Court of Appeals for the Federal Circuit

00-7009

HOWARD F. ROBERSON,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

__________________________

DECIDED: May 29, 2001

__________________________



Before GAJARSA, LINN, and DYK, Circuit Judges.

LINN, Circuit Judge.

DECISION

Howard F. Roberson appeals from the decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans Appeals’ ("Board") decision that a 1984 rating decision did not involve clear and unmistakable error ("CUE"). See Roberson v. West, No. 97-1971 (Vet. App. July 27, 1999). We hold that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based upon individual unemployability ("TDIU"). We further hold that proving inability to maintain "substantially gainful occupation" for entitlement to TDIU does not require proving 100 percent unemployability. Because the Court of Appeals for Veterans Claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU, we reverse and remand.

BACKGROUND

Roberson served on active duty in the U.S. Marine Corps from May 26, 1967 until February 10, 1971. His service and medical records are negative for any psychiatric condition. In a 1975 rating decision, the regional office ("RO") awarded service connection to Roberson for scars, and denied service connection for chronic low back pain with spondylolysis and high frequency hearing impairment.

In 1982, Roberson submitted an application for benefits for psychiatric problems, which he attributed to his service in Vietnam. In his application, Roberson noted that he had not worked in almost a year. He also included a statement from his wife describing his behavior and his inability to remain employed. One year later, in 1983, Roberson was admitted to a Veteran’s Administration ("VA") hospital to receive treatment to "get his life together again." Roberson was diagnosed with alcohol dependence and post-traumatic stress disorder ("PTSD"). Subsequently, a VA examination indicated that Roberson had been unemployed for two years. The examiner diagnosed Roberson with chronic PTSD, substance abuse in remission, and recurrent-type major depression. Included in the same VA examination, a social work services examiner reported that Roberson had held several construction jobs between 1972 and 1978, lasting for periods ranging from two weeks to seven months.

In a 1984 rating decision, the RO awarded service connection for PTSD and assigned a seventy percent disability rating, effective September 20, 1982, the date on which Roberson submitted his application for VA benefits for psychiatric problems. The RO’s rating decision noted that Roberson had a history of substance abuse, and had "been unemployed for 101/2 years primarily because of what was described as poor concentration." Roberson was also awarded service connection for Tinnitus, evaluated at ten percent disabling, effective November 30, 1982, and his ten percent disability rating for scars was reduced to zero.

Independent of the VA’s actions, in 1987 the Social Security Administration ("SSA") concluded that Roberson met the disability insured status requirements of the Social Security Act, because he had "not engaged in substantially gainful activity" between October 1981 and June 1984.

In March of 1989, 38 C.F.R. § 4.16 was amended to add subsection (c), stating: "in cases in which the only compensable service-connected disability is a mental disorder assigned a seventy percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation . . . the mental disorder shall be assigned a 100 percent evaluation under the appropriate diagnostic code." This amendment was brought to the RO’s attention by Roberson’s counsel, who requested consideration of a 100 percent disability rating to be effective as of September 1982.

In response, on October 2, 1990, the Board increased Roberson’s disability rating for PTSD to 100 percent. However, this rating decision was effective March 1987 rather than September 1982. The Board based its decision on the following: (1) a September 1987 vocational rehabilitation Board finding that Roberson "was not feasible for training;" (2) VA medical records; (3) a September 1988 social work survey; (4) private medical records; (5) testimony from Roberson and his wife in a 1989 RO hearing; (6) testimony from Roberson and his wife at a 1990 traveling Board hearing; and (7) evidence presented during the traveling Board hearing including evidence of receipt of Social Security benefits.

Five years after Roberson’s disability was increased to 100 percent, in a letter dated September 29, 1995, Roberson’s counsel alleged CUE in the 1984 rating decision, based on the RO’s failure to apply 38 C.F.R. § 3.340(a)(1). This regulation states:

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

Roberson’s counsel asserted that, based on Roberson’s unemployability and inability to concentrate, Roberson was entitled to a 100 percent disability rating under section 3.340 in the 1984 rating decision. In a February 28, 1996 response, the RO informed Roberson that he had not submitted a valid CUE claim. Roberson submitted a notice of disagreement and subsequently perfected his appeal.

In a letter to the Board dated March 1997, Roberson additionally alleged that, based upon the record before the RO in its 1984 decision, the RO "clearly and erroneously failed to follow the controlling regulations regarding total disability based upon individual unemployability [TDIU]." He stated that, because the record disclosed that Roberson had been unemployed for ten and a half years, he was entitled to TDIU. The Court of Appeals for Veterans Claims, however, noted that this statement regarding ten and a half years of unemployment was contradicted by a 1987 VA medical report stating that Roberson had been employed as a structural steel worker within that ten and a half year period. The court also found that "there was sufficient evidence of record at the time of the RO’s January 1984 decision to reasonably conclude that the veteran was not 100% unemployable." Roberson v. West, No. 97-1971, slip op. at 6.

On July 7, 1997, the Board determined that the 1984 rating decision, establishing service connection for PTSD and a seventy percent disability rating, did not contain CUE because Roberson had failed to allege TDIU, and even if he had alleged TDIU, he was not eligible for TDIU because he was capable of maintaining substantially gainful employment. The Court of Appeals for Veterans Claims affirmed the Board’s decision that Roberson had failed to allege TDIU, and that he was not eligible for TDIU. Roberson timely appealed the Court of Appeals for Veterans Claims’ dismissal to this court. We have jurisdiction under 38 U.S.C. § 7292 (1994).

DISCUSSION

Our jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. We have jurisdiction "to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c) (1994). Unless there is a constitutional issue presented, however, we may not review factual determinations or the application of law to a particular set of facts. Id. § 7292(d)(2).

38 C.F.R. § 3.155(a)

Roberson alleges that the Court of Appeals for Veterans Claims misinterpreted 38 C.F.R. § 3.155(a), governing informal claims, which states in pertinent part:

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.

38 C.F.R. § 3.155(a) (1994) (emphasis added).

The Court of Appeals for Veterans Claims held that even if the VA had a duty to develop all possible claims that are reasonably raised from a liberal reading of the record, Roberson was required under section 3.155(a) to specifically request entitlement to the benefit sought – in this case TDIU. The Court of Appeals for Veterans Claims determined that because Roberson did not make a specific request for TDIU, the VA was not obligated to adjudicate such a claim.

Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested "loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’" Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). Although Norris does not bind this court as precedent, it is both on-point and informative.

The facts of Norris are similar to the present case. Norris was rated 70 percent disabled from a mental disorder. Id. at 415. His rating was increased to 100 percent based on 38 C.F.R. § 4.16 (i.e., the same basis for increasing Roberson’s rating to 100 percent). Id. at 416. Before the Court of Appeals for Veterans Claims, Norris alleged CUE in not giving him an earlier effective date for his 100 percent rating. Id. The government alleged that an informal claim for TDIU was not raised under the specific facts of Norris’s case because entitlement to TDIU requires a showing of at least an informal claim specifically alleging TDIU. Id. The Court of Appeals for Veterans Claims rejected the government’s argument because such a position "loses sight of VA’s congressional mandate that VA is to ‘fully and sympathetically develop the veterans’ claim to its optimum before deciding it on its merits.’" Id. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). In addition, the Court of Appeals for Veterans Claims stated that developing a claim "to its optimum" must include determining all potential claims raised by the evidence and applying all relevant law and regulation raised by that evidence regardless of how the claim is identified. Id.

Despite this generalized holding, the facts of Norris are distinguishable from Roberson’s situation. In Norris, the Court of Appeals for Veterans Claims held that, under 38 C.F.R. § 3.157(b), an informal claim for an increase in rating percent was created with each VA examination report. Id. at 419. In addition, each informal claim for a rating increase included a claim for the highest rating possible, all the way up to 100 percent. Id. Thus, the court did not look at the propriety of the initial rating determination. This is an important distinction. In Norris, it was the subsequent informal claims that were found to raise TDIU. Id. at 421. The Court of Appeals for Veterans claims stated:

when the VA conducts a medical examination . . . if the results indicate an increase in severity in the disability, VA must then evaluate the circumstances as a claim for an increased rating. Further, the Court holds that when an RO is considering a rating increase claim from a claimant who’s schedular rating meets the minimum criteria of section 4.16(a) and there is evidence of current service-connected unemployability . . . evaluation of that rating increase must also include an evaluation of a reasonably raised claim for a TDIU rating. In that situation, where those two criteria are satisfied, a well-grounded TDIU claim is included in every rating-increase claim, and VA would be required to adjudicate that well-grounded TDIU claim.

Id. (internal citations omitted).

The court then held that Norris’s informal TDIU claims, having never been finally decided by the RO, were not ripe for adjudication. Id. at 422. Thus, CUE was never considered. Unlike Norris, Roberson’s original medical disability claim was decided by the RO and is the claim for which Roberson seeks the highest rating possible. Ratings decisions by the DVA are deemed "final and binding ... as to conclusions based on the evidence on file at the time the [DVA] issues written notification of the decision." 38 C.F.R. § 3104(a) (1994). But see Hayre v. West, 188 F.3d 1327, 1333 (Fed. Cir. 1999) ("[a] breach of duty to assist in which the VA failed to obtain pertinent [evidence] specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error . . . that vitiates the finality of an RO decision for purposes of a direct appeal"). Roberson has not alleged that the VA failed to obtain pertinent evidence. Thus, Roberson’s claim has been finally decided by the RO.

Roberson asserts that the 1984 rating decision involved CUE because the VA breached the duty to assist. As we held in Hayre v. West, 188 F.3d 1327, 1332-33 (Fed. Cir. 1999), breach of the duty to assist cannot form the basis for a CUE claim. This holding is specifically confirmed by DVA regulations. See 38 C.F.R. § 20.1403(d)(2) (2000); Disabled Am. Veterans v. Gober, 234 F.3d 682, 697 (Fed. Cir. 2000) (citing Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994)). However, the duty to assist under 38 U.S.C. § 5107(a) is a duty to assist a claimant "in developing the facts pertinent to the claim," and that duty is separate from the VA’s mandate to fully develop the veteran’s claim. Even though the duty to assist cannot form the basis for CUE, we must nonetheless determine the standard that applies when the VA is considering a CUE claim. When a decision of the VA is final, as here, there are two grounds for attack on that decision under the statute. The veteran can seek to reopen a disallowed claim based on new and material evidence under 38 U.S.C. § 5108, or the veteran can seek to "reverse[] or revise[]" the Board’s decision based on CUE under 38 U.S.C. § 7111. In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), we considered the first type of error and determined that Congress has mandated that the VA is "to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits." Hodge, 155 F.3d at 1362 (quoting H.R. Rep. No. 100-963, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5795). We see no basis for applying a different standard to a CUE claim, and we hold that the DVA is thus required to consider a CUE claim using the standard of Hodge.

The government argues that, because Roberson never specifically requested TDIU in his original claim, he cannot be considered to have filed a TDIU claim despite his submission of evidence regarding his unemployability. We disagree.

Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim "to its optimum" as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU. Thus, we reverse the court’s holding that Roberson failed to make a claim for TDIU before the RO at the time of its 1984 decision.

38 C.F.R. § 3.340(a)

Having found a claim for TDIU, we consider Roberson’s entitlement to TDIU under 38 C.F.R. § 3.340(a)(1), dating back to the 1984 rating decision. Roberson alleges that, in determining his eligibility for TDIU, the Court of Appeals for Veterans Claims misinterpreted section 3.340(a)(1). This section stated, at the time the RO evaluated Roberson’s claim, "[t]otal disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a)(1) (1983) (emphasis added). Roberson asserts that the Court of Appeals for Veterans Claims misconstrued "substantially gainful occupation" to mean "100% unemployable." Roberson bases his allegation on the court’s statement that "there was sufficient evidence of record at the time of the RO’s January 1984 decision to reasonably conclude that the veteran was not 100% unemployable." Roberson v. West, No. 97-1971, slip op. at 6. Roberson asserts that the plain language of the regulation does not require the veteran to show 100 percent unemployability in order to prove that he cannot "follow substantially gainful occupation." We agree.

Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility. While the term "substantially gainful occupation" may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.

Having concluded that proving inability to maintain "substantially gainful occupation" does not require proving 100 percent unemployability, we remand to the Court of Appeals for Veterans Claims for a determination of Roberson’s eligibility for TDIU in accordance with this opinion.

CONCLUSION

We conclude that the Court of Appeals for Veterans claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU.

REVERSED and REMANDED

VA can't order exam to obtain evidence against veteran, Mariano v.Principi, No. 01-467

Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant's case)

Might also look at:
Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. at 1322.”
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


No. 01-467

Segundo Mariano, Appellant,

v.

Anthony J. Principi,
Secretary of Veterans Affairs, Appellee.


On Appeal from the Board of Veterans' Appeals


(Argued May 13, 2003
Decided October 22, 2003
)



Ronald L. Smith, with whom Landon E. Overby (non-attorney
practitioner) was on the pleadings, both of Washington, D.C., for the
appellant.

Mary Flynn, with whom Tim S. McClain, General Counsel; R. Randall
Campbell, Assistant General Counsel; Joan E. Moriarty, Deputy Assistant
General Counsel; and Ari Nazarov were on the pleadings, all of Washington,
D.C., for the appellee.

Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.

KRAMER, Chief Judge: The appellant appeals, through counsel, a
November 17, 2000, Board of Veterans' Appeals (Board or BVA) decision
that denied an increased disability rating for his service-connected
residuals of a gunshot wound (GSW) to the left shoulder, affecting Muscle
Group (MG) I, currently rated as 10% disabling. Record (R.) at 2, 18-22,
24. The appellant and the Secretary have filed briefs, and the appellant
has filed a reply brief. Pursuant to a Court order, the appellant has
filed a supplemental brief and the Secretary has filed a response
addressing, inter alia, (1) several questions regarding the enactment of
the Veterans Benefits Act of 2002, Pub. L. No. 107- 330, 401, 116 Stat.
2820, 2832 (VBA), and (2) whether there is any binding administrative
precedent as to the criteria for receipt of a 20% disability rating under
38 C.F.R. 4.71a, Diagnostic Code (DC) 5201 (2002). The parties also
have filed, pursuant to another Court order, supplemental memoranda
addressing the impact, if any, on this case of the Court's recent order
in Roberson v. Principi, 17 Vet.App. 135 (2003) (per curiam order).
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C
. 7252(a) and 7266(a). For the reasons that follow, the Court will
affirm in part and will reverse in part and vacate in part the Board's
decision and remand several matters for readjudication consistent with
this opinion.

I. Background
The appellant served on active duty from March 1943 to February 1946.
R. at 2, 32, 48. During that service, he was hospitalized from December 7,
1944, to December 31, 1944, as a result of a GSW to the left shoulder that
he sustained from enemy rifle fire. R. at 32, 34. (The appellant also
sustained a GSW to his right upper thigh and was hospitalized from April
1945 to June 1945. No issue with respect to that right-upper-thigh GSW is
on appeal here.) In August 1954, the appellant submitted an application
for VA compensation or pension for, inter alia, the GSW to his left
shoulder. R. at 36-38. In a March 1956 decision, a VA regional office (
RO) awarded service connection for, inter alia, the appellant's through-
and-through GSW to the left shoulder region (minor) and assigned a 10%
disability rating under the 1945 VA Schedule for Rating Disabilities, DC
5301, effective July 6, 1954. R. at 61-62; see R. at 55-59 (June 1955 VA
medical examination report in which examiner, inter alia, identified
trapezius as muscle involved); 1945 VA Schedule for Rating Disabilities,
DC 5301 (injury to MG I of which trapezius is part). The appellant did
not appeal that RO decision.
In September 1972, the appellant in essence sought an increased
rating for his service-connected GSW to the left shoulder. R. at 67, 68-
69. On January 23, 1973, the appellant was afforded a VA medical
examination. R. at 71-75 (examiner diagnosed, inter alia, pair of scars,
left shoulder, allegedly residuals of GSW, through-and-through, with
minimal deformity, and with limitation of motion (LOM) of left shoulder
joint, with injury to MG IV). In a March 1, 1973, decision, the RO
confirmed and continued the assigned 10% rating but "modifi[ed]" the March
1956 RO decision to reflect that the appellant's service-connected through-
and-through GSW to the left shoulder affected MG IV and was to be rated
under 38 C.F.R. 4.73, DC 5304 (1972). R. at 77-78 (noting that
disability was rated formerly under DC 5301). The appellant did not
appeal that RO decision.
On November 9, 1983, VA received private medical records (dated
August 19, 1983) relating to the appellant. R. at 80-81. Subsequently,
the appellant, on January 12, 1984, underwent a VA medical examination. R.
at 84-88 (examiner diagnosed, inter alia, left-shoulder through-and-
through GSW with injury to MG IV). In a February 23, 1984, decision, the
RO confirmed and continued the appellant's 10% disability rating. R. at
90. The appellant appealed that RO decision (see R. at 93-95, 97-98), and
the BVA, in an April 1, 1985, decision, denied an increased disability
rating for residuals of a GSW to the left-shoulder region, MG IV (R. at
101-06).
In July 1996, the appellant sought, inter alia, an increased rating
for his service-connected left-shoulder GSW residuals. R. at 116. (At
that time, the appellant also in essence requested a rating of total
disability based on individual unemployability (TDIU)). The RO, in
September 1996, denied the appellant's claim because he had failed to
report for a scheduled VA medical examination. R. at 124-26; see R. at
122 (noting appellant's failure to report), 128 (October 1996 letter to VA
from appellant in which he explained his failure to report). On November
19, 1996, the appellant was afforded a VA medical examination. See R. at
131 (November 1996 letter to appellant from RO in which RO notified him
that examination in connection with his request for increased rating for
his service-connected GSW residuals was being rescheduled). In the report
of that examination, the examiner, who had been requested to assess the
residuals of the appellant's GSW (see R. at 120, 131), identified MG I as
the muscles penetrated in the appellant's left shoulder (R. at 133:
muscles examination report); recorded the appellant's left-shoulder
strength as "fair to good" (R. at 135: muscles examination report), his
complaints of pain, swelling, and limited left-shoulder range of motion (
ROM) (R. at 138: bones examination report), and his ROM in his left
shoulder to be flexion 0-90°, extension 0-25°, abduction 0-75°, and
adduction 0-40° (R. at 142: joints examination report); and diagnosed the
appellant as having hypertrophic degenerative arthritis of the left
shoulder and a shoulder muscle injury but made no comment as to any
relationship between arthritis and the appellant's GSW (R. at 135 (muscles
examination report), 143 (joints examination report); see R. at 145 (
radiographic report listing impression of hypertrophic degenerative
changes, left shoulder, and negative for fractures and metallic foreign
bodies (MFBs)); see also R. at 140 (bones examination report reflecting
diagnosis of, inter alia, no fractures)). In an April 23, 1997, decision,
the RO continued the 10% disability rating for the appellant's service-
connected left-shoulder
through-and-through GSW, with injury to MG IV. R. at 151-54. The
appellant filed a Notice of Disagreement (NOD) as to that RO decision (R.
at 159); the RO issued to him a Statement of the Case (SOC) (R. at 164-76);
and the appellant filed a Substantive Appeal in which he, inter alia, in
essence asserted that the November 1996 VA medical examination was
inadequate (R. at 178-79).
Subsequent to receiving the appellant's Substantive Appeal, VA
determined that the appellant should be afforded a new medical examination "
to ascertain the nature, severity, and etiology of any [left-shoulder]
disorders" and to determine the appellant's left-shoulder functional loss.
R. at 181; see R. at 183-84. The appellant underwent that VA medical
examination on January 20, 1998. During that examination, the examiner
determined the appellant's left-shoulder ROM to be forward flexion 0-90°,
abduction 0-130°, external rotation 0-60°, and internal rotation 0-60°.
R. at 193, 198. Further, the muscles examiner recorded the "exact muscles
injured" in the appellant's left shoulder as MG IV and both the muscle
strength and loss of muscle function in the appellant's left shoulder as "
moderate muscle disability." R. at 204-05, 207-09. The VA examiner,
after noting that he had reviewed the appellant's claims file, diagnosed
the appellant as having residuals of GSW, left shoulder (R. at 194, 199,
206, 210), and opined that "[t]here ha[d] been no progressive
deformity/deterioration of the [appellant's service-connected]
disabilities compared to the . . . examination [of November 1996]" (R. at
206, 210). A radiographic report from that January 1998 examination
reflects an impression of minimal degenerative arthritis, left shoulder.
R. at 211.
Following the January 1998 VA medical examination, the RO issued to
the appellant a Supplemental SOC (SSOC). R. at 224-35. In August 1998,
the appellant, through his then representative, submitted to the Board
argument as to why he should be awarded an increased rating for his
service-connected left-shoulder GSW residuals, with injury to MG IV, rated
as 10% disabling; specifically, for the first time, he contended that his
service-connected left-shoulder condition "would be more correctly rated,
at this time, under [DC] 5201 (Arm, limitation of motion of: At shoulder
level (20%)[)]," based upon the January 1998 VA examination during which
his left-shoulder forward flexion was measured as 0-90°. R. at 237-38.
Later that month, the BVA, inter alia, remanded to the RO for further
development the appellant's left-shoulder-increased-rating claim. The
Board specifically ordered, inter alia, that the appellant be afforded a
comprehensive medical examination; the appellant's claims folder and a
separate copy of the BVA's remand be made
available to the examiner for review before the examination; the
examiner evaluate the appellant's GSW residuals, identify any MG
involvement, and state specifically whether there is evidence of injury to
MG I, MG IV, or both; and the examiner set out active and passive shoulder
ROMs and state whether there is evidence of any atrophy, weakness,
incoordination, fatigue, swelling, sensory impairment, bone or joint
deformity, arthritis, neurologic impairment, or other GSW residuals. If
the examination report was inadequate for rating purposes, the RO was
directed to return the report to the examiner. R. at 259-63.
Pursuant to the August 1998 BVA remand, the appellant, on December 3,
1998, underwent a VA medical examination. In the report of that
examination, the examiner recorded that he had determined the appellant's
left-shoulder ROM to be flexion 0-120° (active), 0-130° (passive);
extension 0-30° (active), 0-40° (passive); abduction 0-110° (active), 0-
140° (passive); internal rotation 0-90° (active and passive); and
external rotation 0-70° (active and passive). R. at 273, 278. The
examiner diagnosed the appellant as having residuals, GSW, left shoulder
and arm, and opined, following his "Diagnosis: residuals, GSW, [left]
shoulder," that the appellant has left-shoulder LOM, especially to
abduction and flexion and, therefore, "is moderately limited" in
activities involving over-head motions, such as removing a shirt; that MGs
I and IV show no gross incapacitation; and that the appellant's "LOM is
due primarily . . . to degenerative [osteoarthritis]." R. at 276, 282.
The examiner also noted (apparently subsequent to examining the appellant
and recording his findings) that he had reviewed the appellant's claims
file on "2/4/99." R. at 272 (handwritten notation), 283 (same).
Subsequent to the RO, in September 1999, deferring a decision on the
appellant's claim until the examiner "specifically state[d]" whether there
is evidence of injury to MG I, MG IV, or both (R. at 290), the examiner,
in a September 30, 1999, handwritten addendum to his previous examination
report, stated that "[t]here is only evidence . . . of [an] injury to MG I
but not [evidence of an injury] to MG IV" (R. at 276; see R. at 294).
In an October 23, 1999, decision, the RO, inter alia, continued the
10% disability rating for the appellant's service-connected left-shoulder
GSW residuals. R. at 303-08 (listing DC as 5304- 5301); see R. at 294-99 (
October 1999 SSOC to same effect). In December 1999, the RO received
private medical records (dated August 1996) relating to the appellant;
those records reflect the examiner's notation that the appellant had "[l]
imited [ROM and] c[ould not] lift [his arm] above
shoulder level." R. at 313. The RO, in a May 2000 decision, again
denied the appellant's claim. R. at 323-26; see R. at 318-20 (May 2000
SSOC to same effect).
In the November 17, 2000, Board decision on appeal, the BVA noted
that the appellant is right handed and found that, therefore, his left arm
is his minor extremity and the criteria for the nondominant extremity
would be applied. R. at 18. The BVA then found that the preponderance of
the competent evidence (the evidence) is against assignment of a higher
evaluation for residuals of a GSW to the left upper extremity. Id. As a
basis for that ultimate finding, the Board made, inter alia, the following
three preliminary findings. First, the Board found that, with respect to
the MGs in the appellant's left shoulder, the evidence shows that the
residuals of the GSW to the left shoulder involve only MG I and not an
injury to MG IV (Preliminary Finding 1). R. at 18-19. Second, the BVA
found either that the appellant had arm motion above shoulder level (i.e.,
his arm motion was not limited to at or below shoulder level) or that, if
he had arm LOM at or below shoulder level, such LOM was due primarily to
arthritis (Preliminary Finding 2). R. at 20-21. Third, the Board found
that the evidence reveals that osteoarthritis of the left shoulder is not
a residual of the appellant's in-service GSW in the left shoulder (
Preliminary Finding 3). R. at 21.
In making Preliminary Finding 1, the Board relied on the opinion of
the June 1955 VA examiner who specifically identified a muscle (the
trapezius) in MG I and the opinion of the December 1998 VA examiner who
also noted sole involvement of MG I. R. at 18-19. In making Preliminary
Finding 2, the Board stated that
[the appellant's private physician, in the report of an August 1996
examination] noted that the [appellant] could not lift his arm above
shoulder level. VA examination reports also reveal that the [
appellant] has some [LOM] in the left arm. Specifically, in November
1996, forward flexion and abduction were to 90 and 75 degrees,
respectively. In January 1998, forward flexion was to 90 degrees
whereas abduction was to 130 degrees. The most recent evidence, the
December 1998 VA examination report, shows that the [appellant] was
able to lift his arm above shoulder level[, i.e., active forward
flexion was to 120 degrees and active abduction was to 110 degrees].
Such degree of motion limitation does not warrant assignment of even
a compensable evaluation under [DC] 5201. . . . A review of past
examination reports and other evidence includes both findings that
the [appellant] was and was not able to lift his arm to at least
shoulder level. However, the December 1998 VA examiner considered
the record and noted that the [appellant's] left arm [LOM] was
primarily due to degenerative arthritis.
R. at 20-21.
In making Preliminary Finding 3, the Board considered evidence,
including x-rays, showing (1) degenerative arthritis but not linking such
to the appellant's in-service GSW (see R. at 133-45 (November 1996 VA
examinations), 277-82 (December 1998 VA examination)) and (2) minimal
degenerative changes but no traumatic residuals (see R. at 211 (January
1998 x-ray)). R. at 20-21. Specifically, the Board stated that the
November 1996 examiner "did not relate degenerative arthritis to the [
appellant's] in-service trauma" and that the December 1998 examiner "did
not relate [arthritis] to the [GSW]." R. at 21.
The Board denied, therefore, the appellant's claim for an increased
disability rating for his service-connected residuals of a GSW to the left
shoulder, affecting MG I. R. at 24. The appellant timely appealed that
November 2000 Board decision to this Court.

II. Analysis
A. Preliminary Matters
In his brief, the appellant expressly limits his appeal to his left-
shoulder-GSW-residuals claim, and counsel for the appellant stated at oral
argument that, on appeal, the appellant has abandoned his claims for TDIU
and an extraschedular rating. Accordingly, the Court will consider those
claims abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997);
Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (issues or claims not argued
on appeal are considered abandoned); Bucklinger v. Brown, 5 Vet.App. 435,
436 (1993). Counsel for the appellant also stated that the appellant was
withdrawing his argument, as put forth in his briefs, for staged ratings;
therefore, the Court will not address that argument. Further, the Court
notes that the Board expressly found and the parties do not contest that
the appellant's left arm is his minor arm (see R. at 18; Appellant's Brief (
Br.) at 12); therefore, the following analysis is based on the rating
criteria for the minor, or nondominant, arm (see 38 C.F.R. 4.69 (2002)).
The Secretary has prescribed regulations in 38 C.F.R. 4.40-4.73 (
2002) for assessing disability ratings for the musculoskeletal system.
The Court notes that, as the Board pointed out (R. at 9), the rating
criteria for MG injuries were changed, effective July 1997. See Schedule
for Rating Disabilities; Muscle Injuries, 62 Fed. Reg. 30,235 (June 3,
1997). For purposes of this
appeal, it appears that those 1997 amendments made no substantive changes
to the DCs for MG injuries. Compare 38 C.F.R. 4.55, 4.56 (2002), with
38 C.F.R. 4.55, 4.56 (1996).
B. December 1998 VA Examination and Stegall v. West
In its August 1998 decision, the Board specifically ordered that on
remand, inter alia, "[t]he claims folder and a separate copy of this
remand MUST be made available to the examiner for review before the
examination." R. at 260-61. On the December 3, 1998, VA joints
examination worksheet completed on the date of the examination, the VA
examiner apparently noted "C-file to follow"; it appears that, at some
later date, the VA examiner added to that worksheet "C-file reviewed
2/4/99." R. at 272. Therefore, the specific remand instruction that the
appellant's claims file be made available to the VA examiner prior to the
examination was not followed.
Pursuant to Stegall v. West, the Board errs when it "fail[s] to
insure compliance" with the terms of the "remand orders of the Board or
this Court." Stegall, 11 Vet.App. 268, 271 (1998). Here, those terms
were not satisfied, and "the Court cannot say, based on the record before
it, that the appellant here has not been harmed." Id.; see 38 U.S.C.
7261(b)(2); Woods v. Gober, 14 Vet.App. 214, 222-23 (2000) (holding that
Stegall, supra, required remand in order for Secretary to comply with
prior remand orders). Accordingly, the Court cannot conclude that VA
complied - or even "substantially complied" - with the Board's remand
order. Dyment v. West, 13 Vet.App. 141, 146-47 (1999), aff'd, 287 F.3d
1377 (Fed. Cir. 2002). Generally, reliance on such a noncomplying
examination in adjudication, especially where it is the principal evidence
upon which the Board relied, is not permissible. See Powell v. West, 13
Vet.App. 31, 35 (1999) (holding that Board erred in relying on inadequate
1997 examination to deny rating increase when 1995 examination, inter alia,
supported requested rating). However, the Court does not believe that the
nature of the noncompliance here renders unreliable the ROM measurements
taken regarding the appellant's left shoulder because those measurements
involve scientific tests and are not conclusions drawn by the VA examiner
that would be affected by the examiner's review of the claims file.
Therefore, the Court will review the Board decision on appeal based on the
assumption that the December 1998 ROM objective measurements are valid.
In contrast, the flaw in the December 1998 examination undermines any of
the examiner's conclusions as to etiology and renders such conclusions of
questionable probative value because the examiner did not review the
claims file prior to conducting
the examination. See 38 C.F.R. 4.1 (2002) (inter alia, "[i]t is . . .
essential, both in the examination and in the evaluation of disability,
that each disability be viewed in relation to its history").
Finally, with respect to this December 1998 VA examination, the Court
notes that it is not at all clear from the record on appeal (ROA) why VA
concluded, in light of the unrebutted evidence then of record, that it was
necessary to obtain that medical opinion. Because it would not be
permissible for VA to undertake such additional development if a purpose
was to obtain evidence against an appellant's case, VA must provide an
adequate statement of reasons or bases for its decision to pursue further
development where such development reasonably could be construed as
obtaining additional evidence for that purpose. See 38 U.S.C. 7104(d)(1
).
C. Preliminary Finding 1
As to the appellant's MG injury, the Board found "that the residuals
of the [GSW] to the left shoulder involve only an injury to [MG] I and not
an injury to [MG] IV." R. at 19. To the extent that the BVA determined
that MG IV is not involved, the Board failed to address the following.
See 38 U.S.C. 7104(a), (d)(1); Charles v. Principi, 16 Vet.App. 370, 373 (
2002) (Board is required to provide written statement of reasons or bases
for findings and conclusions on all material issues of fact and law
presented on record; statement must be adequate to enable claimant to
understand precise basis for Board's decision, as well as to facilitate
review in this Court); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (
per curiam order); Allday v. Brown, 7 Vet.App. 517, 527 (1995). First,
the Board did not consider whether the award of service connection for MG
IV is protected because it has been in effect for more than 26 years, far
longer than the 10 years required in order for service connection to be
protected under 38 U.S.C. 1159 and 38 C.F.R. 3.957 (2002). Second,
the BVA did not consider whether, based on the period between the March
1973 attribution of the 10% rating to MG IV and the October 1999 apparent
change in attribution of that 10% rating to MG I, the appellant has a
protected 10% rating for MG IV because that rating has been in effect for
more than the 20 years required under 38 U.S.C. 110 and 38 C.F.R. 3.
951(b) and 4.55(d) (2002). Third, if the MG IV injury is not protected
under those provisions, the Board failed to address the evidence that
supports the involvement of MG IV. See R. at 71-75 (examiner indicated
injury was to MG IV), 84-88 (same), 204-05 (same).
Moreover, in the process of making its MG determination, the Board
erred when it found that (1) "[t]he December 1998 VA examiner reviewed
the [appellant's] claims file" and (2) "it does not appear that examiners
identifying [MG] IV involvement reviewed the entire claims file." R. at
18. The former finding is incomplete because the ROA shows that the
December 1998 VA examiner reviewed the claims file two months after he
examined the appellant and recorded his findings in December 1998. See R.
at 283 ("C-file reviewed 2/4/99"). The latter finding is erroneous (see
part II.D, below) because the January 1998 VA muscles examiner listed MG
IV as the "exact muscles injured" and noted that he had reviewed the
appellant's claims file. See R. at 204. Hence, the Court will set aside
as clearly erroneous these two BVA findings because neither has a
plausible basis in the record. See 38 U.S.C. 7261(a)(4); Pentecost and
Parker, both infra.
Accordingly, for the reasons discussed above, the Court will remand
the MG matter for the Board to conduct proper fact finding and provide an
adequate statement of reasons or bases for its decision.
D. Review of Board Factfinding
The assignment of a VA disability rating in accordance with 38 U.S.C
. 1155 based on the degree of impairment from a service-connected
disability is a factual determination. See Fleshman v. Brown, 9 Vet.App.
548, 552 (1996), aff'd, 138 F.3d 1429 (Fed. Cir. 1998); Johnson v. Brown,
9 Vet.App. 7, 9 (1996); Francisco v. Brown, 7 Vet.App. 55, 57 (1994);
Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990). Pursuant to 38 U.S.C.
7261(a)(4), as amended by VBA 401, the Court is directed to review BVA
findings of fact under a "clearly erroneous" standard. Under that
standard, the Court may not overturn a Board fact determination where
there is a "plausible basis in the record" for it. Pentecost v. Principi,
16 Vet.App. 124, 129 (2002); Parker v. Principi, 15 Vet.App. 407, 410 (
2002). Specifically, section 7261 provides in pertinent part:
(a) In any action brought under this chapter, the Court of
Appeals for Veterans Claims, to the extent necessary to its decision
and when presented, shall -

. . .

(4) in the case of a finding of material fact adverse to
the claimant made in reaching a decision in a case before the
Department with respect to benefits under laws administered by
the Secretary, hold unlawful and set aside or reverse such
finding if the finding is clearly erroneous.

(b) In making the determinations under subsection (a), the
Court shall review the record of proceedings before the Secretary and
the Board . . . pursuant to section 7252(b) of this title and shall -

(1) take due account of the Secretary's application of
section 5107(b) of this title.
38 U.S.C. 7261(a)(4), (b)(1); see 38 U.S.C. 5107(b) (when there is
approximate balance of positive and negative evidence regarding any issue
material to determination of matter, Secretary shall give "benefit of the
doubt" to claimant). In this regard, the outcome of the Board's
application of the section 5107(b) equipoise standard is a factual
determination that this Court reviews under the "clearly erroneous"
standard. See Roberson, 17 Vet.App. at 146 ("[The Court] is not
authorized to make the determination as to whether the evidence is in
equipoise and apply the benefit[-]of[-]the[-]doubt doctrine; the Court is
empowered only to ensure that the Secretary's determination in that regard
is not clearly erroneous."). Indeed, Congress, by adding section 7261(
b)(1), directed that the Court, "[i]n making the determinations under
subsection (a)," including a determination as to whether a finding of
material fact adverse to the claimant is clearly erroneous, shall take due
account of the Secretary's application of section 5107(b)'s equipoise
standard. 38 U.S.C. 7261(b)(1); see 38 U.S.C. 7261(a)(4).
1. Preliminary Finding 3
Undertaking that mandated review in this case, the Court first will
review the Board's factual determination that the evidence of record
preponderated in support of a finding that the appellant's osteoarthritis
is not a residual of his service-connected GSW. In this regard, reviewing
as did the Board the reports of the appellant's medical examinations, the
Court notes the following. First, in an August 1996 examination report,
the appellant's private physician essentially attributed the appellant's
left-shoulder LOM (not able to lift his arm above shoulder level) to his
service-connected GSW but was silent as to arthritis. See R. at 313-14.
Next, in the report of a November 1996 examination that was conducted in
connection with the appellant's request for an increased rating for his
service-connected left-shoulder GSW residuals, a VA examiner, who had been
requested to assess any such residuals, attributed the appellant's left-
shoulder LOM to degenerative arthritis but made no comment specifically as
to any relationship between the GSW and arthritis. See R. at 141- 43.
Further, during a January 1998 VA examination that was conducted pursuant
to the instruction
"to ascertain the nature, severity, and etiology" (R. at 181) of any of
the appellant's left-shoulder disabilities, the examiner determined that
the appellant's LOM is a residual of his service-connected GSW and, after
reviewing, inter alia, a radiographic report, determined that his service-
connected disabilities had not undergone any progressive deformity or
deterioration since the November 1996 examination. See R. at 194, 206.
Finally, in a December 1998 examination report, a VA examiner, who had
been instructed specifically by a Board remand to evaluate any GSW
residuals, opined that the appellant's LOM is due primarily to
degenerative arthritis but was silent as to any specific relationship
between the appellant's GSW and arthritis. See R. at 276.
This review of the examination reports of record shows that two
examiners (August 1996 and January 1998) attributed the appellant's LOM to
his service-connected GSW residuals but were silent as to arthritis and
two examiners (November 1996 and December 1998) attributed the appellant's
LOM to arthritis but were silent as to any relationship between the
appellant's GSW and arthritis. As reflected by this review, there is
absolutely no medical evidence in the ROA to support the Board's
determination that the appellant's osteoarthritis of the left shoulder is
not a residual of his service-connected GSW; indeed, none of the medical
examination reports addressed that question. Accordingly, the Court
concludes that there is no plausible basis in the record for the BVA's
factual determination that the evidence preponderated in support of a
finding that the appellant's arthritis is not a residual of his service-
connected GSW. See Roberson, Pentecost, and Parker, all supra. The
Court thus holds that the Secretary's application of the section 5107(b)
equipoise standard in reaching that factual determination was clearly
erroneous under section 7261(a)(4) and will set it aside. See 38 U.S.C.
7261(a)(4), (b)(1); Roberson, supra. The Court, however, will not
reverse that finding because there is no evidence (medical or otherwise)
in the current ROA on which any finding on such a secondary service-
connection question could be based. Certainly, that question is presented
by this record, and, on remand, the Board must, for purposes of any future
rating under DC 5201, take the steps necessary to develop the record as to
the extent, if any, to which the appellant has arthritis that is secondary
to his service-connected GSW residuals. See 38 C.F.R. 3.310(a) (2002) (
providing for secondary service connection); see also 38 U.S.C. 5103A;
38 C.F.R. 3.159(c) (2002).

2. Preliminary Finding 2
Pursuant to DC 5201, the following ratings apply to LOM of the arm:
Rating
Major Minor
5201 Arm, limitation of motion of:
To 25° from side
................................................... 40
30
Midway between side and shoulder level............. 30
20
At shoulder level
.................................................. 20
20
38 C.F.R. 4.71a, DC 5201; see 38 C.F.R. 4.71a, Plate I (Plate I) (
2002) (illustrating, inter alia, flexion and abduction ranges as 0-180°
with "[a]t shoulder level" as 90°). In connection with whether the
appellant had arm motion above shoulder level (i.e., his arm motion was
not limited to at or below shoulder level) or whether, if he had arm LOM
at or below shoulder level, such LOM was due primarily to arthritis, the
Board stated:
[The appellant's private physician, in the report of an August 1996
examination] noted that the [appellant] could not lift his arm above
shoulder level. VA examination reports also reveal that the [
appellant] has some [LOM] in the left arm. Specifically, in November
1996, forward flexion and abduction were to 90 and 75 degrees,
respectively. In January 1998, forward flexion was to 90 degrees
whereas abduction was to 130 degrees. The most recent evidence, the
December 1998 VA examination report, shows that the [appellant] was
able to lift his arm above shoulder level[, i.e., active forward
flexion was to 120 degrees and active abduction was to 110 degrees].
Such degree of motion limitation does not warrant assignment of even
a compensable evaluation under [DC] 5201. . . . A review of past
examination reports and other evidence includes both findings that
the [appellant] was and was not able to lift his arm to at least
shoulder level. However, the December 1998 VA examiner considered
the record and noted that the [appellant's] left arm [LOM] was
primarily due to degenerative arthritis.
R. at 20-21.
a. Arm motion above shoulder level
To the extent that the Board found, by a preponderance of the
evidence, that the appellant had left-arm motion above shoulder level
based solely on flexion measurements, the Court concludes that there is no
plausible basis in the record for that determination. See Roberson,
Pentecost, and Parker, all supra. In this regard, the Court notes that
there are two VA examinations that reflect at-or-below- shoulder-level
flexion measurements for the appellant (November 1996 and January 1998 -
90°) and one VA examination that reflects an above-shoulder-level flexion
measurement (December 1998 -
120°) and that it is unclear what the private physician was measuring,
further adding to the state of doubt as to this question. The Court thus
holds that the Secretary's application of the section 5107(b) equipoise
standard in reaching any factual determination based on flexion was
clearly erroneous under section 7261(a)(4) and will reverse it. See 38 U.
S.C. 7261(a)(4), (b)(1); Roberson, supra. To the extent that the BVA
found, by a preponderance of the evidence, that the appellant had left-arm
motion above shoulder level based on abduction, the Court concludes that
there is a plausible basis in the record for that determination. See
Roberson, Pentecost and Parker, all supra. In this regard, the Court
notes that there are two VA examinations that reflect above-shoulder-level
abduction measurements for the appellant (January 1998 - 130° and
December 1998 - 110°) and one VA examination that reflects an at-or-below-
shoulder-level abduction measurement (November 1996 - 75°) and that it is
unclear what the private physician was measuring. Thus, the Court holds
that the Secretary's application of the section 5107(b) equipoise
standard in finding arm motion above shoulder level based on abduction was
not clearly erroneous and will not set it aside or reverse it. See 38 U.S.
C. 7261(a)(4), (b)(1); Roberson, supra.
b. LOM due primarily to arthritis
To the extent that the Board found that, if the appellant had LOM at
or below shoulder level, any such LOM was due primarily to arthritis,
rather than his GSW residuals, the Court concludes that there is no
plausible basis in the record for that determination. See Roberson,
Pentecost, and Parker, all supra. Because there is medical evidence in
the ROA on this question (as opposed to the question whether the
appellant's arthritis is a GSW residual, see ante at __, slip op. at 11-12
), the Court must examine all of that evidence of record in order to
determine whether to set aside or to reverse the Board's determination on
this question. See 38 U.S.C. 7261(b) (directing Court, in making
determinations under section 7261(a), to "review the record of proceedings
before the Secretary and the Board"); see also Homan v. Principi, 17 Vet.
App. 1, 3-4 (2003) (per curiam order) (holding "record of proceedings"
referred to in amended section 7261(b) consists of ROA as designated by
parties and transmitted to Court pursuant to Rules 10 and 11 of Court's
Rules of Practice and Procedure).
In this regard, in an August 1996 examination report, the
appellant's private physician essentially attributed the appellant's left-
shoulder LOM (not able to lift his arm above shoulder level)
to his service-connected GSW but was silent as to arthritis. See R. at
313-14. Next, in the report of a November 1996 examination, a VA examiner
did not unambiguously attribute the appellant's LOM to any condition.
Specifically, in a muscles examination, the examiner found injury to MG I
and diagnosed the appellant with hypertrophic degenerative arthritis in
his left shoulder and a shoulder muscle injury (see R. at 133-35); in a
bones examination, the examiner recorded, inter alia, that the appellant
complained of "pain [and] swelling, limited ROM of left shoulder" (R. at
138) and diagnosed no fractures (see R. at 140); and in a joints
examination, the examiner recorded ROM measurements, diagnosed
hypertrophic degenerative arthritis in the appellant's left shoulder, and
attributed the appellant's left-shoulder LOM to degenerative arthritis but
made no comment specifically as to any relationship between the GSW and
arthritis (see R. at 141-43). Further, during a January 1998 VA
examination that was conducted pursuant to the instruction "to ascertain
the nature, severity, and etiology" (R. at 181) of any of the appellant's
left-shoulder disabilities, the examiner determined that the appellant's
LOM is a residual of his service-connected GSW. See R. at 194. Finally,
in a December 1998 examination report, a VA examiner, opined that the
appellant's LOM is due primarily to degenerative arthritis. See R. at 276
. As to that December 1998 report, the etiology conclusion reached by
the examiner is, at best, of questionable probative value as was discussed
in part II.B, above.
A review of these examination reports indicates that two examiners (
August 1996 and January 1998) clearly attributed the appellant's left-
shoulder LOM to his service-connected GSW residuals; one examiner (
November 1996) either attributed the appellant's LOM to arthritis or is
ambiguous on etiology; and one examiner (December 1998) in a flawed
examination attributed the appellant's LOM to arthritis. Therefore, the
evidence reflects two examination reports that are unambiguously favorable
to the appellant on this question; one examination report that is at best
ambiguous on this question; and one examination report that, although
unfavorable to the appellant on this question, is of questionable
probative value because the methodology was flawed. Thus, the Court
holds that the Secretary's application of the section 5107(b) equipoise
standard in finding that any LOM at or below shoulder level experienced by
the appellant is due primarily to arthritis, rather than to his service-
connected GSW residuals, was clearly erroneous and will reverse it. See
38 U.S.C. 7261(a)(4), (b)(1); Roberson, supra.
E. Meaning of DC 5201
The question becomes, therefore, whether flexion not above shoulder
level qualifies for a 20% disability rating under DC 5201. In this regard,
although the appellant contended at oral argument that either flexion or
abduction may be used to satisfy the criterion for a 20% rating under DC
5201 and the Secretary, in response to a briefing order, contended that "
DC 5201 refers only to limitation of abduction" (Secretary's Response (
Resp.) at 9-10), both parties agree that there appears to be no binding
administrative precedent as to the criteria for receipt of a 20%
disability rating under DC 5201 (Appellant's Supplemental Br. at 5;
Secretary's Resp. at 10). Further, there appear to be three possible
interpretations of DC 5201 insofar as the ROM measurement that is utilized
for a disability rating: (1) as advanced by the Secretary, LOM as
evidenced by abduction only; (2) LOM in all planes; or (3) LOM in any one
plane.
The Court holds that the Secretary's proffered interpretation that DC
5201 is measuring abduction only is invalid for at least three reasons.
See 38 U.S.C. 7261(a)(3)(A). First, although the Secretary contends
that DC 5201 utilizes only abduction, Plate I lists, inter alia, both
abduction and flexion as shoulder-arm-motion measurements. See 38 C.F.R.
4.71a, Plate I (picturing, for shoulder, flexion, abduction, external
rotation, and internal rotation); see also 38 C.F.R. 4.71 (measurement
of ankylosis and joint motion); R. at 142 (November 1996 VA examination
report reflecting left-shoulder ROM measurements for flexion, extension,
abduction, and adduction), 193 (January 1998 VA examination report listing
forward flexion, abduction, external rotation, and internal rotation), 273 (
December 1998 VA examination report indicating ROM measured by flexion,
extension, abduction, internal rotation, and external rotation). Second,
although the immediately preceding DC (5200) explicitly refers to
abduction for two ratings under that code, DC 5201 does not explicitly
refer to any specifically identified type of ROM measurement. Compare 38
C.F.R. 4.71a, DC 5200 (2002), with 38 C.F.R. 4.71a, DC 5201. See
generally 38 C.F.R. 4.71a, DCs 5206, 5207 (2002) (both specifically
listing type of motion measured for ratings). Third, the title of DC 5201
is "Arm, limitation of motion of." The title appears generic and does not
specify limitation based on abduction. Compare 38 C.F.R. 4.71a, DC 5201,
with 38 C.F.R. 4.71a, DC 5206 ("Forearm, limitation of flexion of"), and
38 C.F.R. 4.71a, DC 5207 ("Forearm, limitation of extension of").
The two possible interpretations remaining, therefore, are limitation
in all planes and limitation in any one plane. Although interpretation of
whether DC 5201 must be construed to adopt the less restrictive of the two
remaining interpretations is a matter that the Court could proceed to
confront directly (see 38 U.S.C. 7261(a)(1) (scope of review); Otero-
Castro v. Principi, 16 Vet.App. 375, 380-83 (2002) (utilizing, inter alia,
dictionary and regulatory definitions and limited (albeit not entirely
clear) regulatory history as contained in Federal Register, Court
interpreted requirements of 38 C.F.R. 4.104, DC 7005, 7007 (2001), where
Secretary had failed to establish clear rating criteria)), the Court
nevertheless concludes that it is preferable for the Secretary to
undertake the initial consideration of this matter. The Court, therefore,
will put this ball squarely in the Secretary's court and require him to
answer in the first instance, clearly and unambiguously, the questions
presented by his regulation. See Cotant v. Principi, 17 Vet.App. 116, 130 (
2003) (directing Secretary to "straighten[] out . . . complicated . . .
web" created by his regulations); McCormick v. Gober, 14 Vet.App. 39, 45 (
2000) (concluding that "remand [would] likely benefit the Court by
producing 'a better record . . . for appellate review of the agency
decision' and, further, may result in the 'agency self-correct[ing] and
amend[ing] its ways[,'] which, in turn, would 'protect agency
administrative authority' regarding the interpretation of its own
issuances as well as 'promote judicial efficiency'" (quoting Maggitt v.
West, 202 F.3d 1370, 1377 (Fed. Cir. 2000))); accord Gordon v. Principi,
15 Vet.App. 124, 127-28 (2001) (quoting McCormick, 14 Vet.App. at 45). In
this regard, the Court notes that it appears that it could be very
difficult for a claimant to satisfy the requirements of DC 5201 if
limitation in every plane is required. If the Secretary adopts this
interpretation, he must provide adequate support for such an
interpretation. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (
interpretative doubt is to be resolved in appellant's favor); see also
Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (rules for construing
statutes apply equally to construing regulations).
Given the age of the appellant (see R. at 27 (listing appellant's
date of birth as December 26, 1924)) and the length of time that the
appellant's increased-rating claim has been pending (see R. at 116 (July
1996 claim for increase)), the Court expects that, within 90 days after
the date of this opinion and on the evidence currently of record, the
Board will reissue a decision as to the appellant's increased-rating claim
. See U.S. Vet. App. R. 21 (extraordinary relief). Given this time
guideline,
judgment will be entered and mandate will issue in this case 10 days
after the date on which this opinion is issued. See U.S. Vet. App. R. 2 (
suspension of rules), 35 (motion for reconsideration), 36 (entry of
judgment), 41(a) (issuance of mandate). That time guideline does not
extend to the question of the extent, if any, to which the appellant has
arthritis that is secondary to his service-connected GSW residuals because
VA must afford the appellant a medical examination as stated in part II.D.
1, above.

III. Conclusion
Based upon the foregoing analysis, the ROA, the parties' pleadings,
and oral argument, the November 17, 2000, Board decision is AFFIRMED in
part and is REVERSED in part and VACATED in part and several matters are
REMANDED for readjudication consistent with this opinion. On remand, the
appellant is free to submit additional evidence and argument on the
remanded claim in accordance with Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App.
529, 534 (2002) (stating, in case where Court remanded claim and declined
to address appellant's additional arguments as to BVA error, that, on
remand, appellant is free to raise such arguments to Board and Board must
address those arguments). The Board shall proceed expeditiously, in
accordance with section 302 of the Veterans' Benefits Improvements Act of
1994, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (found at 38 U.S.C
. 5101 note) (requiring Secretary to provide for "expeditious treatment"
of claims remanded by Board or Court).

1151 claims, FedCir. Gardner v. Brown, No. 92- 7025

38 U.S.C. Sec. 1151, the VA "shall" award service-connected compensation where a veteran shows he has suffered an "injury, or an aggravation of an injury" and that this injury or aggravation is the result of one of four VA services:
(1) hospitalization;
(2) medical or surgical treatment;
(3) vocational rehabilitation; or
(4) an examination.
+++++++++++++++++++++++++++++++++++++++++++
Congress, however, did not require the veteran to discover and prove precisely what happened during his treatment (e.g., that the VA personnel acted negligently or that a mishap occurred), a time when perhaps the veteran was not even conscious. To impose on the veteran the obligation to prove an element of accident or fault is to curtail drastically the statutory right conferred on him by 38 U.S.C. Sec. 1151.
+++++++++++++++++++++++++++++++++++++++++++


5 F.3d 1456

62 USLW 2197

Fred P. GARDNER, Claimant-Appellee,
v.
Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.

No. 92-7025.

United States Court of Appeals,
Federal Circuit.

Sept. 13, 1993.

Joseph M. Hannon, Jr., Thompson, O'Donnell, Markham, Norton & Hannon, Washington, DC, argued for claimant-appellee.

Julie A. Shubin, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for respondent-appellant. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Mary Mitchelson, Deputy Director. Also on the brief were Donald E. Zeglin and Tresa Schlecht, Dept. of Veterans Affairs, Washington, DC, of counsel.

Before ARCHER, MICHEL, and LOURIE, Circuit Judges.

ARCHER, Circuit Judge.
1

The Secretary of Veterans Affairs appeals from a judgment of the United States Court of Veterans Appeals (Veterans Court), No. 90-120 (entered Jan. 13, 1992). The Veterans Court reversed the decision of the Board of Veterans' Appeals holding that Gardner is not entitled to disability compensation, and remanded the case for further proceedings. 1 Vet.App. 584. We affirm.

I.
2

Fred P. Gardner, a veteran of the Korean conflict, underwent back surgery at a Department of Veterans Affairs (VA)1 medical facility for a non-service-connected back condition. He asserts that as the result of the surgery he developed severe nerve damage in his left leg, resulting in pain, atrophy, and weakness, and that since the surgery his left ankle is severely impaired requiring him to wear a leg brace. Accordingly, Gardner filed a claim for disability compensation with the VA Regional Office in Waco, Texas.
3

The VA Regional Office denied Gardner's claim, and he sought review by the Board of Veterans' Appeals (BVA). The BVA held that in order for a veteran to receive disability compensation for an injury resulting from VA medical treatment under 38 U.S.C. Sec. 1151 (Supp. III 1991) (formerly Sec. 3512) and 38 C.F.R. Sec. 3.358 (1992),3
4

at least two elements must be present. First, there must be some demonstration in the record that the treatment rendered resulted in some untoward result or that the treatment was negligent or showed error in judgment, lack of proper medical skill or some other instance of indicated fault. Second, it must be shown that, as a result of the aforementioned accident, negligence, etcetera there was additional disability.
5

The BVA concluded that Gardner was not entitled to disability compensation, finding that he did not prove that he suffered injury as the result of negligent treatment or an accident occurring during his treatment. Gardner appealed the decision of the BVA to the Court of Veterans Appeals.
6

The Veterans Court held that 38 C.F.R. Sec. 3.358(c)(3) impermissibly imposed a fault or accident requirement in addition to the prerequisites for relief set out in 38 U.S.C. Sec. 1151. The court reasoned that the plain language of the statute lacked a fault or accident element, that the legislative history was ambiguous as to fault or accident, that Congressional reenactment of the statute while the regulation was in force was not Congressional ratification of a fault or accident element, and that no deference was owed the VA's interpretation. The Veterans Court struck down 38 C.F.R. Sec. 3.358(c)(3) as contrary to 38 U.S.C. Sec. 1151 and beyond the authority of the VA.4 The Veterans Court therefore reversed the BVA's decision denying Gardner compensation and remanded for a redetermination of eligibility.
7

The Secretary appeals from this decision.

II.
8

The sole issue presented in this appeal is whether the regulation, 38 C.F.R. Sec. 3.358(c)(3), which requires a veteran to prove that he suffered disability as the result of negligent treatment or an accident occurring during treatment, is an invalid implementation of 38 U.S.C. Sec. 1151.5 The resolution of this question depends on the construction of 38 U.S.C. Sec. 1151, which is a matter of law that we review de novo. 38 U.S.C. Sec. 7292(d)(1) (Supp. III 1991); Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991).

A.
9

"The starting point in interpreting a statute is its language, for 'if the intent of Congress is clear, that is the end of the matter.' " Good Samaritan Hosp. v. Shalala, --- U.S. ----, ----, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993) (alteration omitted) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)).
10

The statute at issue in this case, 38 U.S.C. Sec. 1151, provides for compensation to veterans who are disabled by VA medical treatment or examination or vocational training. It states in pertinent part:
11

Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation ..., awarded under any of the laws administered by the Secretary, or as a result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter ... shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.
12

38 U.S.C. Sec. 1151.
13

The interpretation of the statute asserted by the VA appears at 38 C.F.R. Sec. 3.358 (1992). The regulation provides that a veteran must prove he suffered a disability, disease, or injury, or aggravation thereof, as the result of a specified VA service, and not merely coincidental with it. 38 C.F.R. Sec. 3.358(c)(1). Furthermore, the VA will not pay compensation for "the continuance or natural progress" of a disease or injury treated by the VA. Id. Sec. 3.358(b)(2). But the provision of the regulation at issue in this appeal and struck down by the Veterans Court requires the veteran to prove additionally that the VA treatment was faulty or that an accident occurred during treatment:
14

Compensation is not payable for either the contemplated or foreseeable after results of approved medical or surgical care properly administered, no matter how remote, in the absence of a showing that additional disability or death proximately resulted through carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of the Department of Veterans Affairs. However, compensation is payable in the event of the occurrence of an "accident" (an unforeseen, untoward event), causing additional disability or death proximately resulting from Department of Veterans Affairs hospitalization or medical or surgical care.
15

38 C.F.R. Sec. 3.358(c)(3).
16

Unlike the regulation, the statute does not on its face include an element of VA fault or accident as a condition to compensation. Pursuant to 38 U.S.C. Sec. 1151, the VA "shall" award service-connected compensation where a veteran shows he has suffered an "injury, or an aggravation of an injury" and that this injury or aggravation is the result of one of four VA services: (1) hospitalization; (2) medical or surgical treatment; (3) vocational rehabilitation; or (4) an examination.
17

The statute has two limitations to the mandatory grant of disability compensation to a veteran undergoing one of the four services listed above. First, the injury or aggravation of injury must be "the result of" one of the services. Second, the injury or aggravation of injury must not be "the result of" the veteran's own willful misconduct. The statute does not expressly require the veteran to prove the poor nature or lack of quality of the treatment received, or the occurrence of some mishap during treatment. Rather, compensation must be paid where the veteran proves only that he suffered an injury as the result of a specified treatment and not as the result of his own willful misconduct.
18

The Secretary argues that the statutory language "as the result of" is ambiguous because the statute "fails to define or explain, in any manner, what is meant by the words 'as the result of.' " From this the Secretary reasons, it is likely that "Congress, as evidenced by the legislative history of the statute, intended that the VA limit compensation payments to those veterans with disabilities proximately caused by VA fault or through accidents."
19

We reject, however, the Secretary's premise--that the statutory language must be deemed ambiguous because the statute does not contain an express definition of the words at issue. To be sure, Congress may define terms in a statute. E.g., 38 U.S.C. Sec. 1101 (Supp. III 1991). But Congress is not required to define each and every word in a piece of legislation in order to express clearly its will. A phrase appearing in the context of a statute may be unambiguous where it "has a clearly accepted meaning in both legislative and judicial practice," West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991), even though it is not explicitly defined by the statutory text. Indeed, terms are defined in statutes often for the very reason that such terms would be ambiguous without a statutory definition. That a term is not defined in a statute does not mean that the term is per se ambiguous.
20

We are convinced that "as the result of" as used in 38 U.S.C. Sec. 1151 mandates only a causation requirement. See Webster's Third New Int'l Dictionary 1937 (1971) (defining "result" as "a consequence, effect, issue, or conclusion"). Under section 1151 the specified treatment must cause the injury or the aggravation of injury. And willful misconduct of the veteran may not be a cause of the injury or aggravation.
21

The Secretary tenuously argues that causation in this instance may be defined as fault. Causation and fault however are fundamental, distinct concepts in the law. See generally William L. Prosser, Handbook of the Law of Torts Secs. 30, 37, 45, 46, 48 (1941). Congress knows how to legislate expressly liability for fault and negligence. E.g., Act of Apr. 22, 1908, ch. 149, 35 Stat. 65 (liability of common carriers by railroad in cases of negligence) (codified as amended at 45 U.S.C. Sec. 51 (1988)). Congress also knows how to legislate liability without fault. E.g., Longshoremen's and Harbor Workers' Compensation Act, ch. 509, 44 Stat. 1424 (1927) (codified as amended at 33 U.S.C. Secs. 901-950 (1988)). Moreover, section 1151 itself includes one culpability element: the injury or aggravation must not be the result of the willful misconduct of the veteran. Under this language the veteran's own negligence will not preclude him from receiving compensation. When section 1151 is read in its entirety it becomes evident that Congress's failure in section 1151 to require expressly the veteran to prove fault or accident occurring during treatment was both informed and intentional.
22

Finally, the VA's argument that causation incorporates fault or accident is belied by the facts that the BVA in its decision below could and did cleanly distinguish "two elements" for compensation--causation and fault or accident--and that the VA regulation 38 C.F.R. Sec. 3.358 has causation considerations separate from the fault or accident requirement.
23

We therefore conclude that the Veterans Court correctly held that 38 U.S.C. Sec. 1151 unambiguously does not require the veteran to prove that the VA treatment was faulty or that an accident occurred during the treatment.

B.
24

As noted above, the Secretary argues that from the legislative history it is likely that Congress intended a fault or accident element. Although "[r]ecourse to the legislative history of [section 1151] is unnecessary in light of the plain meaning of the statutory text," Darby v. Cisneros, --- U.S. ----, ----, 113 S.Ct. 2539, 2545, 125 L.Ed.2d 113 (1993), we may look to the legislative history " 'to determine whether there is a clearly expressed legislative intention contrary to the statutory language,' " Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 395 (Fed.Cir.1990) (quoting Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed.Cir.1989)). We emphasize that because the statutory language is clear, "we do not analyze th[e] history from a neutral viewpoint." Id. at 396. The Secretary must make an extraordinarily strong showing of clear legislative intent in order to convince us that Congress meant other than what it ultimately said. Seeid.
25

38 U.S.C. Sec. 1151 has a long history. It was born in section 213 of the World War Veterans' Act, 1924, ch. 320, 43 Stat. 607, 623 (1924) ("1924 Act").6 Prior to the 1924 Act, veterans could not be compensated for injuries sustained as a result of VA medical treatment because such treatment was not service-connected.
26

The legislation was proposed by General Frank T. Hines, then-director of the United States Veterans' Bureau, as an amendment to the "war risk insurance act." See World War Veterans' Legislation: Hearings on H.R. 7320 Before the House Committee on World War Veterans' Legislation, 68th Cong., 1st Sess. 113 (1924) (hereinafter "House Hearings"). Each party cites in support of its respective construction of the 1924 Act the House committee hearings on House Bill 7320, which was enacted as section 213. These hearings have been cited often by the VA in its administration of the Act. In introducing the proposal, General Hines stated:
27

[I]n cases of hospitalization for compensable diseases or injuries, where without fault of the patient, as the result of accident or negligence of treatment or unskillfulness--things that must sometimes happen--the patient is further injured or disabled, there is at present no provision for compensating him to the extent thereof. The Government having undertaken to bestow a benefit, has, in fact, inflicted a loss.
28

House Hearings, supra, at 113 (emphasis added).
29

General Hines and Members of Congress then attempted to flesh out situations in which compensation would be payable:
30

General HINES.... In the hospital, at the patient's consent, he may undergo a certain surgical operation, with the hope, on the best advice available, that it will overcome some disability, but instead of doing that it goes in the other direction. Now, he may have a considerable minor disability due to his service, but at the same time he finds himself totally disabled, and the bureau under the existing law has no way of compensating him.
31

The CHAIRMAN. It might come from a spinal puncture done at his request?
32

General HINES. That is true.
33

The CHAIRMAN. Or an operation which was not successful?
34

General HINES. That has occurred from a spinal puncture that I know of, and it seems to me manifestly unjust, that in good faith the man undergoes an operation, the doctor does the best he can and without neglect--
35

The CHAIRMAN. And with the best medical advice.
36

General HINES. With the best medical advice, and still at the end of a certain period we find the man has a greater disability than he originally started with, and we have no way of correcting in any measure that condition.
37

The CHAIRMAN. In a certain number of cases from some operations lesions will occur which will incapacitate the patient also?
38

General HINES. And it may result--as we all know, operations are never certain--in death.
39

....
40

Mr. RANKIN. Would the disability that they are being treated for have to rise to the dignity of being convincable? [sic] For instance, a great many fellows go to these hospitals to get examined and stay there a while until their case can be thoroughly examined. Suppose it was determined that they had no disability due to the service when they went there, but that they were injured in this process in some way, would this apply to them?
41

General HINES. If they were injured, for instance, in determining whether a man has or has not syphilis, by a spinal puncture--when they make the spinal puncture and get the results, they all seem to be satisfied whatever the result is--if that results, as it might, that they would paralyze a man under that operation, under those circumstances that man would be entitled to compensation.
42

House Hearings, supra, at 114 (emphasis added).
43

The record of House hearings also contains a letter from General Hines to the House committee, in which General Hines wrote:
44

I concur in the principle that authority should exist for compensating the cases of disability due to the hazards of training upon the general theory and principle of the workmen's compensation act [no-fault liability]. I would extend the principle beyond this particular proposal to include also ratable disabilities incurred without fault and due to the hazards of medical and surgical treatment.
45

House Hearings, supra, at 122 (emphasis added).
46

Finally, General Hines reiterated before the Senate what he had said before the House:
47

[A] man submitted to a spinal puncture in one of our hospitals, to determine whether his [service-connected] disability was due to misconduct or not, and as the result of the spinal puncture he was injured for a period, paralyzed practically, on one side, and he is claiming now that he is greatly disabled. There is no way for the bureau, even though that mistake was made by them, to in any way compensate him.
48

Veterans' Bureau Codification Act: Hearings on S. 2257 Before the Subcommittee of the Senate Committee on Finance, 68th Cong., 1st Sess. 102-03 (1924) (emphasis added).
49

Until 1926, the VA did not impose any fault or accident showing as a condition to compensation. In 1926, the VA promulgated Regulation No. 137 under the direction of General Hines. That regulation provided that "[c]ompensation ... will not be paid for the ordinary residuals of disease or injury following accepted medical treatment nor for the continuation of the original disability where improvement can not be effected by approved medical or surgical treatment." VA Regulation No. 137, sec. 7701 (1926) (emphasis added), reprinted in United States Veterans' Bureau, Regulations and Procedure: Active and Obsolete Issues as of December 31, 1928, at 174 (1930) (hereinafter "Obsolete Issues"). In 1927, the regulation was revised to exclude "[t]he usual after results of approved medical care and treatment properly administered." VA Regulation No. 167, sec. 7701.B(4) (1927) (emphasis added), reprinted in Obsolete Issues, supra, at 194.
50

Although the regulations used such language as "approved" and "properly administered" medical care, it does not appear that the VA actually excluded disability claims where the veteran could not prove fault or accident. For example, the Attorney General advised the VA that the phrase "as the result of" required a straightforward causal connection with no element of fault or accident on the part of VA personnel. See 35 Op. Att'y Gen. 76 (1926); 36 Op. Att'y Gen. 61, 63 (1929) ("It is probably impossible to state a general rule for determining whether such a causal connection is present in any given case."). In 1930, the Comptroller General considered the question whether a veteran who had suffered dermatitis as the result of X-ray treatment for service-connected tuberculosis could receive compensation. The Comptroller advised the Director of the Veterans' Bureau that such disability would be compensable; there was no discussion of the nature or quality of the specific X-ray treatments given. Comptroller General Decision No. A-31895, 9 Comp.Gen. 515 (1930). Nevertheless, in language broader than necessary, the Comptroller General stated that "[t]he plain intent of section 213 ... was to afford veterans some measure of compensation in those cases in which the disability arises through accident, carelessness, negligence, lack of proper skill, error in judgment, etc., on the part of any person charged with a duty respecting the hospitalization, or medical or surgical treatment...." Id. at 516.
51

In 1933, Congress repealed the World War Veterans' Act. See Economy Act, ch. 3, Sec. 17, 48 Stat. 8, 11 (1933). Thereafter, in March 1934, Congress substantially reenacted the provisions of the repealed law. Act of Mar. 28, 1934, ch. 102, Sec. 31, 48 Stat. 509, 526 ("1934 Act").7 The Congressional discussion preceding the enactment of the 1934 Act expressed the same commitment to compensation as that present in the discussion preceding the enactment of the 1924 Act:
52

Mr. STEIWER. The first proposal is that where, in a veterans' hospital, a veteran is disabled by reason of mistreatment on the part of a Government agent, as in a case of malpractice by a Government surgeon, that disability shall be treated just the same as a war disability, and the veteran shall be compensated in the same way.
53

Mr. BORAH. Are we undertaking to cover cases of malpractice upon the part of physicians?
54

Mr. STEIWER. Incidentally, we would. Of course, what we are trying to do is to protect the men who suffer from malpractice at the hands of Veterans' Administration physicians. That was in the old law; it was repealed by the Economy Act; and the effort at this time is to restore it.
55

....
56

Mr. BORAH.... I am curious to know how it is provided that we shall determine that there has been a case of malpractice.
57

Mr. STEIWER. Mr. President, I do not know that the Veterans' Administration can determine that there has been a case of malpractice, but they do determine that the veteran is suffering from disability, and in some cases they have determined that the disability was caused by or aggravated by some mistreatment upon the part of the veterans' agencies. I do not think there has ever been a trial of a [VA] doctor to determine malpractice....
58

78 Cong. Rec. 3289-90 (Feb. 27, 1934).
59

For the first time, in August 1934, the Administrator of the VA took the position that compensation was payable under the 1934 Act only where the disability arose through an accident or negligence. Department of Veterans Affairs, Precedential Op. Off. General Counsel 99-90, at 7 (1990). The Administrator based his interpretation of the 1934 Act on the fact that it was a reenactment of the 1924 Act, and that in 1930 the Comptroller General had stated that the 1924 Act was intended to compensate fault and accident. Id. From about 1934 to the present the VA has promulgated various regulations requiring fault or accident, culminating in the regulation at issue today. See id. at 7-8.8
60

The legislative history convincingly demonstrates that Congress's paramount concern was to compensate veterans injured by VA medical treatment. The Congressional discussion preceding enactment includes at times the words fault and accident, and at other times speaks of no-fault liability. The resulting statute omits fault and accident from its language. Congress recognized that injuries would likely occur where the treatment was negligent or where an accident occurred during treatment, but there is no indication whatsoever in the legislative history or in the resulting legislative enactment that Congress intended to place on the veteran the complex and difficult burden of proving that negligence or an accident actually occurred during treatment as a condition to compensation. The World War Veterans' Act was remedial legislation and as such should be construed broadly to the benefit of the veteran. SeeTcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967). This is all consistent with Congress's enactment of a statute that plainly requires injury and causation but plainly does not require proof of fault or accident.
61

The critical inquiry for compensation under 38 U.S.C. Sec. 1151 therefore is, assuming no willful misconduct by the veteran, whether the veteran was injured by the treatment. If he was, then as the statute and legislative history make clear, regardless of VA fault or accident, the veteran is to be compensated because the VA "having undertaken to bestow a benefit, has, in fact, inflicted a loss." Because the legislative history does not reveal a clearly expressed legislative intent to require a veteran in order to receive compensation to show that he suffered an injury as the result of faulty medical treatment or an accident occurring during treatment, the Secretary has not made the " 'extraordinary showing of ... intentions' " necessary to warrant departure from the plain meaning of the text. Glaxo Operations, 894 F.2d at 396 (emphasis in original) (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984)).

C.
62

The Secretary argues that this court must defer to the VA's long-standing regulations purporting to interpret the statute as requiring fault or accident. For several reasons we will not defer. As discussed above, Congress has spoken clearly on the issue of fault or accident, and unambiguously has not required it. Congress has not left any gap in the statutory language that might give the Secretary discretion to require fault or accident. Therefore we owe no deference to the VA's interpretation. Glaxo Operations, 894 F.2d at 398.
63

In addition, the VA's interpretation of the statute was not contemporaneous with the statute's enactment. Rather, the VA first absolutely required fault or accident some 10 years after the enactment of the original statutory provision, and 5 months after reenactment of the statute which the VA has always maintained was the same in scope as the original enactment. In such circumstances the force of the regulation is substantially weakened. Seeid. at 398-99.
64

Finally, we reject the Secretary's urging for deference based on the fact that the regulation or its equivalent is long-standing. SeeHorner v. Andrzjewski, 811 F.2d 571, 574 (Fed.Cir.1987). Although the regulation has existed for nearly 60 years, it was not expressly made judicially reviewable until 1988. In that year, Congress established under Article I of the Constitution the Court of Veterans Appeals to provide for the first time judicial review of decisions of the VA. See Veterans' Judicial Review Act, Pub.L. No. 100-687, Sec. 301, 102 Stat. 4105 (1988). Jurisdiction for appeals from the Court of Veterans Appeals lies exclusively in this court. Id. Until 1988, as stated by Congress, the VA stood "in 'splendid isolation as the single federal administrative agency whose major functions [we]re explicitly insulated from judicial review.' " H.R.Rep. No. 100-963, 100th Cong., 2d Sess. 10, reprinted in 1988 U.S.C.C.A.N. 5782, 5791. Many VA regulations have aged nicely simply because Congress took so long to provide for judicial review. The length of such regulations' unscrutinized and unscrutinizable existence, however, does not in itself form a basis for us to presume they are valid and therefore defer to them. If anything, Congress's lengthy deliberation and carefully crafted scheme for judicial review of VA regulations counsels for vigorous review.
65

We also reject the Secretary's argument that Congress ratified the fault or accident element in 1934 when it reenacted the 1924 Act. Even if, as the Secretary argues, in this case Congress could be presumed to be aware of the VA's regulatory interpretations of the statute, seeMerrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 n. 66, 102 S.Ct. 1825, 1841 n. 66, 72 L.Ed.2d 182 (1982), there has been no showing that the VA definitively interpreted the statute as requiring proof of fault or accident prior to the time Congress reenacted the statute. Reenactment occurred on March 28, 1934, while the Administrator's definitive, restrictive stance was taken later in August of that year. Nor does the Congressional discussion preceding reenactment cited by the parties even refer to the VA regulation. As the discussion above indicates, Congress initially enacted a broad statute that would encompass instances of fault and accident leading to injury, but was not limited to them. That the VA deemed fault or accident important at the time of reenactment does not show that Congress intended to so limit the statute. Consequently, "[i]n such circumstances we consider the [1934] reenactment to be without significance." United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1144, 1 L.Ed.2d 1394 (1957); seePierce v. Underwood, 487 U.S. 552, 566-68, 108 S.Ct. 2541, 2550-51, 101 L.Ed.2d 490 (1988).
66

The VA required Gardner to prove that as the result of his medical treatment he suffered an injury or an aggravation of an injury, and either that the particular treatment was performed with negligence or that during the treatment an accident occurred. Congress, however, did not require the veteran to discover and prove precisely what happened during his treatment (e.g., that the VA personnel acted negligently or that a mishap occurred), a time when perhaps the veteran was not even conscious. To impose on the veteran the obligation to prove an element of accident or fault is to curtail drastically the statutory right conferred on him by 38 U.S.C. Sec. 1151. The Secretary tells us not surprisingly that a no-fault scheme is more expensive than a fault-based scheme. That however would be Congress's concern. The VA's desire to pay less compensation than Congress mandated could not authorize the extra-statutory legislation embodied in 38 C.F.R. Sec. 3.358(c)(3). "The only authority conferred, or which could be conferred, by the statute is to make regulations to carry out the purposes of the act--not to amend it." Miller v. United States, 294 U.S. 435, 440, 55 S.Ct. 440, 442, 79 L.Ed. 977 (1935). We hold that 38 C.F.R. Sec. 3.358(c)(3) is therefore invalid.
67

AFFIRMED.
1

For simplicity, we refer to the Department of Veterans Affairs and its precursors, the Veterans' Administration and the Veterans' Bureau, as the "VA."
2

The Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. No. 102-40, Sec. 402(b)(1), 105 Stat. 187, 238, and the Department of Veterans Affairs Codification Act, Pub.L. No. 102-83, Sec. 5, 105 Stat. 378, 406 (1991), redesignated most of the sections of Title 38, United States Code, so that the first two digits of the section number correspond to the section's respective chapter number. To avoid confusion we cite the current sections
3

The BVA is bound by the regulations of the VA. 38 U.S.C. Sec. 7104(c) (Supp. III 1991)
4

38 U.S.C. Sec. 7261(a)(3)(C) (Supp. III 1991) requires the Court of Veterans Appeals to "hold unlawful and set aside ... regulations issued or adopted by the Secretary ... found to be ... in excess of statutory ... authority, ... or in violation of a statutory right."
5

In the appeal to this court, no challenge can be made to the factual determinations that Gardner did not show that the VA treatment was negligent or that an accident occurred during treatment so as to satisfy the VA's regulation. 38 U.S.C. Sec. 7292(d)(2) (Supp. III 1991)
6

That section provided:

That where any beneficiary of this bureau suffers or has suffered an injury or an aggravation of an existing injury as the result of training, hospitalization, or medical or surgical treatment, awarded to him by the director and not the result of his misconduct, and such injury or aggravation of an existing injury results in additional disability to or the death of such beneficiary, the benefits of this title shall be awarded in the same manner as though such disability, aggravation, or the death was the result of military service during the World War.

World War Veterans' Act, 1924, ch. 320, Sec. 213, 43 Stat. 607, 623 (1924).
7

That section stated:

Where any veteran suffers or has suffered an injury, or an aggravation of any existing injury, as the result of training, hospitalization, or medical or surgical treatment, awarded him under any of the laws granting monetary or other benefits to World War veterans, or as the result of having submitted to examination under authority of the War Risk Insurance Act or the World War Veterans' Act, 1924, as amended, and not the result of his misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, ... benefits ... shall be awarded in the same manner as if such disability, aggravation, or death were service connected within the meaning of such laws....

Act of Mar. 28, 1934, ch. 102, Sec. 31, 48 Stat. 509, 526.
8

The 1934 Act was amended several times, resulting in the present enactment, 38 U.S.C. Sec. 1151; statutory language relevant to this appeal, however, was not changed. See Act of Oct. 17, 1940, ch. 893, Sec. 12, 54 Stat. 1193, 1197 (adding compensation for examinations); Act of Mar. 24, 1943, ch. 22, Sec. 3, 57 Stat. 43, 44 (adding compensation for vocational rehabilitation); Act of Sept. 2, 1958, Pub.L. No. 85-857, 72 Stat. 1105, 1124 (codifying the law at 38 U.S.C. Sec. 351); Act of Oct. 15, 1962, Pub.L. No. 87-825, Sec. 3, 76 Stat. 948, 950 (providing offset for recovery under Federal Tort Claims Act); Veterans Disability Compensation and Survivor Benefits Act of 1976, Pub.L. No. 94-433, Sec. 404, 90 Stat. 1374, 1379; Veterans' Compensation and Program Improvements Amendments of 1984, Pub.L. No. 98-223, Sec. 213, 98 Stat. 37, 46; Department of Veterans Affairs Codification Act, Pub.L. No. 102-83, Sec. 5, 105 Stat. 378, 406 (1991)

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