United States Court of Appeals 

for the Federal Circuit ______________________ 

MARCUS W. O'BRYAN,

Claimant-Appellant,

v.

ROBERT A. MCDONALD, 

Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2014-7027

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-2584, Judge Lawrence B. 

Hagel.

______________________ 

Decided: November 20, 2014

______________________ 

KENNETH M. CARPENTER, Law Office of Carpenter 

Chartered, of Topeka, Kansas, argued for claimantappellant. On the brief was THEODORE C. JARVI, Law 

Offices of Theodore C. Jarvi, of Tempe, Arizona. 

TANYA B. KOENIG, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for respondentappellee. With her on the brief were STUART F. DELERY, 
2 O'BRYAN v. MCDONALD

Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,

Director, and SCOTT D. AUSTIN, Assistant Director. Of 

counsel on the brief were DAVID J. BARRANS, Deputy 

Assistant General Counsel, and LARA K. EILHARDT, Staff 

Attorney, United States Department of Veterans Affairs, 

of Washington, DC. 

______________________ 

Before PROST, Chief Judge, CLEVENGER, and DYK, Circuit 

Judges.

DYK, Circuit Judge. 

Marcus W. O’Bryan (“O’Bryan”) appeals from a decision of the United States Court of Appeals for Veterans 

Claims (“Veterans Court”). The Veterans Court affirmed 

a 2011 decision of the Board of Veterans’ Appeals 

(“Board”) that found no clear and unmistakable error 

(“CUE”) in a 1980 Board decision to deny Mr. O’Bryan 

disability benefits based on Leber’s optic atrophy 

(“Leber’s”). O’Bryan v. Shinseki, No. 11-2584, 2013 WL 

2631003, at *1 (Vet. App. June 12, 2013). Because the 

Veterans Court misinterpreted the law on when a congenital or developmental condition is a non-compensable 

defect, we vacate and remand for further consideration.

BACKGROUND

This case involves a claim for disability benefits for 

Leber’s optic atrophy, a hereditary condition characterized by progressive degeneration of the optic nerve. Mr. 

O’Bryan served in the United States Marine Corps from 

August 1973 to September 1976. There is no evidence 

that his eye problems were noted upon his entry into 

service. Upon discharge, he was listed as having 20/20 

vision. In June 1977, he filed a claim for serviceconnected optic disease. In medical examinations around 

that time, he variously reported that his vision started to 

blur in 1974, September 1976, and November 1976. It is 
O'BRYAN v. MCDONALD 3

undisputed that he was legally blind due to Leber’s within 

one year of discharge. Under the regulations, certain 

conditions (allegedly including Leber’s) manifesting

within one year after discharge are treated as though 

manifested during service. See 38 C.F.R. §§ 3.307(a)(3), 

3.309(a); see also 38 U.S.C. § 1112(a).

As discussed below, the statute, 38 U.S.C. § 1110,

provides disability compensation for a “disease” incurred 

during or aggravated by service. Mr. O’Bryan argues that 

his symptoms began during service; that he is suffering 

from a “disease”; and that, because his condition was not 

noted upon entry, he is entitled to a presumption of 

soundness upon entry, that is, a presumption that the 

disease was incurred in service. 38 U.S.C. § 1111. He 

urges that the presumption was not rebutted by the 

Veteran’s Administration (“VA”) and that he was therefore entitled to compensation.

In one of the medical examinations Mr. O’Bryan underwent, a doctor reported that the diagnosis of Leber’s 

“implies fixed, unchanging subnormal vision and has no 

known effective treatment.” J.A. 31. In 1979, Mr. 

O’Bryan’s claim was denied by the regional office of the 

VA because Leber’s is not a “disease” but rather a “hereditary disorder” characterized by “bilateral progressive optic 

atrophy with onset usually [at] about the age of 20.” J.A. 

34. In 1980, the Board, citing 38 C.F.R. § 3.303(c), affirmed the denial, determining that genetically determined optic atrophy is not a “disease” within the statute 

“because such [a] disorder is congenital or developmental.” J.A. 38–39. 

In 2010, Mr. O’Bryan attempted to reopen the case, 

but the Board rejected his contention that it committed 

CUE in its 1980 decision. The Board concluded that since 

Leber’s was a congenital or developmental defect and not 

a “disease,” the veteran was not entitled to the presump-
4 O'BRYAN v. MCDONALD

tion of soundness in 38 U.S.C. § 1111, and there was no 

error. The Veterans Court affirmed. While the court 

recognized that Mr. O’Bryan’s condition worsened over 

time, it explained that the Board did not err in concluding 

that Leber’s is a congenital defect because the Board 

properly relied on the medical opinion stating that Leber’s 

“implies a fixed, unchanging subnormal vision.” J.A. 4 

(quoting J.A. 31).

DISCUSSION

Under 38 U.S.C. § 7292, we have jurisdiction to review decisions of the Veterans Court on issues of law, 

though not on issues of fact or application of law to fact. 

See Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed. Cir. 

2012) (citing Forshey v. Principi, 284 F.3d 1335, 1338

(Fed. Cir. 2002) (en banc)). The legal issue here is whether the Veterans Court correctly construed “[c]ongenital or 

developmental defects” in 38 C.F.R. § 3.303(c).

I 

Section 1110 of Title 38 provides compensation to veterans for disabilities “resulting from personal injury 

suffered or disease” incurred or aggravated during service. Congress has not defined “injury” or “disease.” 

Congress left it up to the VA to “fill the gap left by the 

statute with respect to the question of what kinds of 

conditions qualify” as diseases. Terry v. Principi, 340 

F.3d 1378, 1383 (Fed. Cir. 2003). Pursuant to its authority in 38 U.S.C. § 501 to prescribe rules and regulations, 

the VA promulgated 38 C.F.R. § 3.303(c), which provides: 

“Congenital or developmental defects, refractive error of 

the eye, personality disorders and mental deficiency as 

such are not diseases or injuries within the meaning of 

applicable legislation.” As we recognized in Morris, Terry

“upheld the validity of § 3.303(c) as consistent” with 

§ 1110. 678 F.3d at 1353. The regulation’s exclusions, 

which include “[c]ongenital or developmental defects” as 
O'BRYAN v. MCDONALD 5

well as several other types of conditions, preclude a veteran from being compensated for service-connected disability under § 1110 for those conditions. Id. at 1353–54. 

However, we have not previously had occasion to consider 

what constitutes a “[c]ongenital or developmental defect.”

Deference to an agency’s interpretation of its own 

regulation is warranted when the regulation is ambiguous. See Christensen v. Harris Cnty., 529 U.S. 576, 588 

(2000). “An agency’s interpretation of its own regulation 

is controlling unless that interpretation is plainly erroneous or inconsistent with the regulation.” Johnson v. 

McDonald, 762 F.3d 1362, 1364 (Fed. Cir. 2014) (quoting 

Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009)); 

see also United States v. Cleveland Indians Baseball Co., 

532 U.S. 200, 220 (2001); Auer v. Robbins, 519 U.S. 452, 

461 (1997). “[S]trong deference is appropriate even when 

the agency’s interpretation was announced without resort 

to formal steps,” as long as the interpretation “reflects 

‘the agency’s fair and considered judgment on the matter.’” Thun, 572 F.3d at 1369 (quoting Auer, 519 U.S. at 

462–63).

The phrase “[c]ongenital or developmental defects” in 

§ 3.303(c) is ambiguous. In resolving the ambiguity here, 

we benefit from guidance provided by two VA General 

Counsel opinions to which we afford deference.1 In VA 

1 See Haas v. Peake, 525 F.3d 1168, 1186–91 (Fed. 

Cir. 2008) (affording Auer deference to the VA’s interpretation of a regulation, including statements in a General 

Counsel opinion); see also Guerra v. Shinseki, 642 F.3d 

1046, 1050 (Fed. Cir. 2011) (consulting a precedential 

General Counsel opinion as a “formal expression” of the 

VA’s position on a regulation and statute); Thun, 572 F.3d 

at 1370 (consulting a precedential General Counsel opinion for support of the VA’s interpretation of a regulation); 

 
6 O'BRYAN v. MCDONALD

General Counsel opinion 82-90, the General Counsel 

addressed the meaning of “[c]ongenital or developmental 

defects” under § 3.303(c). The General Counsel concluded 

that “defect” in § 3.303(c) could not 

mean any “imperfection, failure or absence” because that 

would remove all conditions from the scope of “disease” in 

38 U.S.C. § 1110 (formerly § 310). VA Op. Gen. Couns. 

Prec. (“VAOPGCPREC”) 82-90. The General Counsel 

explained that “defects” are “definable as structural or 

inherent abnormalities or conditions which are more or 

less stationary in nature.” Id. The “essentially valid” 

contrast between “disease” under § 1110 and “defect” 

under § 3.303(c) is that the former is “capable of improving or deteriorating” and the latter is not. Id.

Another General Counsel opinion, 67-90, elaborates 

on this construction. There, in the context of accepting 

that “congenital or developmental defects are normally 

static conditions which are incapable of improvement or 

deterioration,” the General Counsel explained that it is 

“clear” that “retinitis pigmentosa and most other diseases 

of hereditary origin can be incurred or aggravated in 

service, in the sense contemplated by Congress in title 

38.” VAOPGCPREC 67-90. Its focus was again on possible progression. The General Counsel noted that 

the relevant factual question is whether the condition is 

manifested in service, i.e., “[a]t what point the individual starts to manifest the symptoms” and whether the 

symptoms have “progresse[d] during service at a greater 

rate than normally expected according to accepted medical authority.” Id. (emphases added). This suggests that 

the relevant legal question is whether the condition is 

capable of progression. We conclude here that this interSmith v. Nicholson, 451 F.3d 1344, 1351 (Fed. Cir. 2006) 

(same).

 
O'BRYAN v. MCDONALD 7

pretation is not “plainly erroneous or inconsistent with 

the regulation.” Thun, 572 F.3d at 1369 (quoting Auer, 

519 U.S. at 461). In fact, the interpretation is reasonable. 

It makes sense for the VA to interpret “defect” in 

§ 3.303(c) to exclude progressive hereditary conditions 

since the nature of hereditary progressions can be aggravated by service.

Thus, we agree that under the above General Counsel 

opinions, a congenital or developmental condition that is 

progressive in nature—that can worsen over time—is a 

disease rather than a defect. A progressive congenital or 

developmental condition does not become a defect simply 

because it ceases to progress. The Veteran’s Court erred 

in failing to apply the correct legal standard. Applying 

the correct legal standard here, there is no dispute that 

Leber’s is a disease.

The “disease” referenced in General Counsel opinion 

67-90, retinitis pigmentosa, is illustrative. Retinitis 

pigmentosa is “frequently hereditary” and “marked by 

progressive loss of retinal response” and “retinal atrophy.” 

Dorland’s Illustrated Medical Dictionary 1634 (32nd ed. 

2012) (emphasis added). Leber’s hereditary optic atrophy 

is similar to retinitis pigmentosa. It is a “rare hereditary 

disorder” and “is characterized by degeneration of the 

optic nerve and papillomacular bundle, resulting in 

progressive loss of central vision and scotoma.” Id. at 

1269 (emphasis added). Presumably, retinitis pigmentosa 

can also “imply” fixed, subnormal vision, yet it is capable 

of deteriorating. The government suggested that Leber’s 

and retinitis pigmentosa differ in the pattern and speed 

by which they progress. However, nothing in the General 

Counsel opinions provides that pattern or speed makes a 

legal difference. The correct legal question is whether 

Leber’s is capable of progression. There is no dispute that 

it is.
8 O'BRYAN v. MCDONALD

II

The government appears to argue that following the 

General Counsel’s interpretation would allow service 

connection and compensation under §§ 1110–11 for hereditary diseases that are untreatable and cannot be aggravated by service and are not in fact service-connected. 

We disagree.

 First, the VA has the authority to change its regulations or the interpretation of its regulations if it so chooses. We do not decide that the General Counsel’s

interpretation of the regulation, or the regulation’s interpretation of the statute, is a required one. We afford 

“broad deference” to such interpretations, even more so 

than an agency’s construction of a statute. Cathedral 

Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 

1363–64 (Fed. Cir. 2005).

Second, not all progressive conditions are diseases 

under the General Counsel’s interpretation because not 

all progressive conditions fall under the category of congenital or developmental defects. In Morris, for example, 

we held that because personality disorder is an exclusion 

in § 3.303(c), a veteran with personality disorder is not 

entitled to the presumption of soundness in § 1111. 678 

F.3d at 1354–55. Similarly, in Terry, we held that “refractive error of the eye” is not a compensable disease 

because it is specifically excluded from the regulation. 

340 F.3d at 1383–84. Both personality disorders and 

refractive errors of the eye can “progress.” Nevertheless, 

because § 3.303(c) lists them in addition to “[c]ongenital 

or developmental defects,” they are also excluded as noncompensable. Moreover, not all hereditary conditions are 

diseases since not all hereditary conditions are progressive. Contrast Leber’s, for instance, with the “congenital 

malformations” mentioned in § 3.303(c), the “congenital 

abnormality” version of bilateral flatfoot mentioned in 38 
O'BRYAN v. MCDONALD 9

C.F.R. § 4.57, and the “absent, displaced or supernumerary parts” mentioned in 38 C.F.R. § 4.9. All of the latter 

are the kinds of congenital and stable conditions that are 

defects, not diseases.

Third, the consequence of treating Leber’s as a disease and not a defect is that the veteran here is entitled to 

a presumption of soundness since the eye condition was 

not noted upon entry into service. In Wagner v. Principi, 

370 F.3d 1089, 1096 (Fed. Cir. 2004), this court held that 

when a condition has not been noted upon entry, the 

presumption of soundness in § 1111 applies and the 

veteran’s claim is one for service connection. The burden 

then falls on the government to rebut such a presumption 

“by clear and unmistakable evidence that the veteran’s 

disability was both preexisting and not aggravated by 

service.” Id. In cases of congenital, developmental, or 

hereditary conditions that qualify as diseases, the government rebuts the part of the presumption that the 

disease did not preexist service by showing that it is 

hereditary. For instance, by showing that Leber’s is 

hereditary, the government would rebut that part of the 

presumption.

Fourth, to rebut the presumption of soundness in 

§ 1111, the government must also prove there has been no 

aggravation during service. Just because a congenital or 

developmental disease can progress does not mean that it 

has progressed at a greater rate than normally expected 

according to accepted medical authority, i.e., that it was 

aggravated by service. As we explained in Wagner, the 

government may show no aggravation “by establishing 

that there was no increase in disability during service or 

that any increase in disability was due to the natural 

progress of the preexisting condition.” 370 F.3d at 1096 

(citation, internal quotation marks, and alteration omitted).
10 O'BRYAN v. MCDONALD

III

In defining what constitutes a “[c]ongenital or developmental defect,” the General Counsel opinions have 

interpreted defects to be “static conditions” that are 

“incapable” of “improvement or deterioration,” whereas 

diseases are capable of such progression. VAOPGCPREC 

67-90. We defer to their interpretation.

We do not decide whether the veteran is entitled to 

disability compensation. We simply remand for further 

proceedings applying the correct legal standard for “defect.”

VACATED AND REMANDED

Costs to O’Bryan.