NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROSE SALBERG,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2014-7049

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 12-2483, Judge Margaret C. 

Bartley.

______________________ 

Decided: April 6, 2015

______________________ 

 JANET PIOLI, Brinks Gilson & Lione, Chicago, IL, 

argued for claimant-appellant. Also represented by LAURA 

A. LYDIGSEN, DAVID HANNA. 

 JOSHUA SCHNELL, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent-appellee. Also 

represented by SONIA MARIE ORFIELD, JOYCE R. BRANDA,

ROBERT E. KIRSCHMAN, JR., SCOTT D. AUSTIN; Y. KEN LEE,
2 SALBERG v. MCDONALD

CHRISTINA LYNN GREGG, Office of General Counsel, United States Department of Veterans Affairs, Washington, 

DC.

______________________ 

Before PROST, Chief Judge, TARANTO, Circuit Judge, and 

FOGEL, District Judge.*

FOGEL, District Judge. 

This appeal from the judgment of the United States 

Court of Appeals for Veterans Claims (the “Veterans 

Court”) concerns whether posttraumatic stress disorder

(“PTSD”) and malaria constitute “contributory cause[s] of 

[the veteran’s] death” within the meaning of 38 C.F.R. 

§ 3.312(c)(1). For the reasons set forth below, we dismiss

the appeal in part and vacate the Veterans Court’s conclusion that the veteran’s PTSD was not a “contributory 

cause of death.” We remand to give the Veterans Court an 

opportunity to construe an arguably ambiguous portion of 

§ 3.312(c)(1) in the first instance.

I 

According to § 3.312(a):

The death of a veteran will be considered as having been due to a service-connected disability 

when the evidence establishes that such disability 

was either the principal or a contributory cause of 

death. 

Section 3.312(c)(1) defines “contributory cause of death”

as follows: 

* Honorable Jeremy Fogel, District Judge, United 

States District Court for the Northern District of California, and Director of the Federal Judicial Center, sitting by 

designation.

 
SALBERG v. MCDONALD 3

Contributory cause of death is inherently one not 

related to the principal cause. In determining 

whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to 

cause death; that it aided or lent assistance to the 

production of death. It is not sufficient to show 

that it casually shared in producing death, but rather it must be shown that there was a causal 

connection. 

Appellant Rose Salberg is the surviving spouse of 

Lawrence Salberg, a veteran who died in 2008 at the age 

of 78. Mr. Salberg’s death certificate recites “respiratory 

failure” as the immediate cause of death and “fungemia 

sepsis,” “ARDS,”1 and “hypotension” as the conditions 

“leading to the cause.” An examiner for the Department of 

Veterans Affairs concluded separately that “[e]nd-stage 

renal disease” and “[v]asculitis (p-ANCA positive),” an 

autoimmune disease, were the “[m]edical disorders contributing to primary cause of death.” 

It is undisputed that Mr. Salberg’s service-connected 

disabilities were not the “principal cause of death.” Mrs. 

Salberg instead sought service connection under two 

separate theories of “contributory cause of death.” 

First, she pointed to an incident that occurred while 

Mr. Salberg was serving as a guard in a psychiatric ward 

of a military hospital. On March 15, 1949, one of the 

patients “engaged him in a bear hug and bit his left ear 

lobe.” The attack had a deep impact on Mr. Salberg; he 

was eventually diagnosed with PTSD and was awarded 

service connection for the condition. His original disability 

rating in 2001 was 10%, but, as the PTSD worsened over 

1 ARDS stands for “acute respiratory distress syndrome.”

 
4 SALBERG v. MCDONALD

time, the rating was increased to 30% in 2003 and ultimately to 70% in 2004. In Mrs. Salberg’s view, the vasculitis which ultimately led to Mr. Salberg’s death in 2008 

was at least exacerbated by the PTSD he suffered as a 

result of the attack.

Second, Mrs. Salberg alleged that Mr. Salberg contracted malaria while in service. In her view, this fact

constitutes a separate ground for the award of service 

connection because of the “connection between malaria 

and vasculitis.”

Mrs. Salberg was unable to able to convince the Board 

of Veterans’ Appeals (the “Board”) that either PTSD or 

malaria was a “contributory cause” of her husband’s 

death. In re Salberg, No. 10-10 077 (Bd. Vet. App. June 

21, 2012) [hereinafter Board Op.]. Her claims fared no 

better in the Veterans Court. Salberg v. Shinseki, No. 12-

2483 (Vet. App. Nov. 8, 2013) [hereinafter Vet. Ct. Op.]. 

She timely appeals.

II 

At the outset, the Secretary appropriately challenges 

our jurisdiction to consider the portion of the appeal 

concerning malaria as a “contributory cause of death.”

The Veterans Court concluded that Mr. Salberg never 

contracted malaria while in service:

Despite her allegation that the Board’s findings 

[that Mr. Salberg did not contract malaria] are erroneous, Mrs. Salberg has not pointed to a medical record or other piece of evidence, either inservice or postservice, or before or after the veteran’s death, that mentions, opines, or recounts that 

he ever contracted malaria or that links any of his 

medical conditions to malaria, and the Court’s review of the record has found none.

Vet. Ct. Op. at 6.
SALBERG v. MCDONALD 5

As we have stated: 

“Our jurisdiction to review the decisions of the 

[Veterans Court] is limited by statute.” While this 

court is authorized to “decide all relevant questions of law, including interpreting constitutional 

and statutory provisions,” we cannot adjudicate 

“(A) a challenge to a factual determination, or 

(B) a challenge to a law or regulation as applied to 

the facts of a particular case,” unless a constitutional issue is presented. 

Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir. 

2011) (citation omitted).

That Mr. Salberg in fact had service-connected malaria is a necessary precondition to the argument that service-connected malaria was a “contributory cause” of his 

death. We have no jurisdiction to review the factual 

finding that he did not contract malaria in service, and, 

accordingly, lack jurisdiction to reach the legal question of 

whether malaria constituted a “contributory cause of 

death.” 

III 

The remaining dispute about Mr. Salberg’s PTSD as a 

“contributory cause” of his death centers on the proper 

construction of § 3.312(c)(1): 

In determining whether the service-connected 

disability contributed to death, it must be shown 

that it contributed substantially or materially; 

that it combined to cause death; that it aided or 

lent assistance to the production of death.

Mrs. Salberg takes the position that the semicolons in the 

regulation should be understood in the disjunctive (in 

other words, as the equivalent of “or”). The Secretary 

asserts that the “semi-colons . . . delineate each clause, all 

of which have related meanings, each serving to further 
6 SALBERG v. MCDONALD

clarify the meaning of contributory death.” We understand the Secretary’s position to be the following: a “contributory cause of death” is a “service-connected disability 

. . . that . . . contributed substantially or materially” to 

death, where the regulation’s “combined to cause death” 

and “aided or lent assistance to death” clauses spell out 

necessary, but not each sufficient, conditions for “substantial[] and material[] contribution. This is the conjunctive 

interpretation.

Mrs. Salberg faults the Veterans Court for defining 

“contributory cause of death” as only those disabilities 

which “contributed substantially or materially” to the 

veteran’s death. She points to certain statements by the 

Board that allegedly show that the Board considered Mr. 

Salberg’s PTSD only under the “contributed substantially 

or materially” prong of the regulation. See, e.g., Board Op.

at 5 (“For a service-connected disability to be a ‘contributory cause’ of death, it must contribute substantially or 

materially.”).2 In her briefing before this court, she appears to argue that the Veterans Court, by quoting and 

paraphrasing the factual findings of the Board, endorsed 

the Board’s restrictive legal interpretation. In paraphrasing the regulation, however, the Veterans Court used the 

term “or”:

[A service-connected disability] is the primary 

cause if it was “the immediate or underlying cause 

of death or was etiologically related” to the death; 

it is a contributory cause if it “contributed substan2 Mrs. Salberg never argued in the Veterans Court 

that the Board failed to consider separately disabilities 

that “combined to cause death” or “aided or lent assistance to the production of death” as “contributory cause[s] 

of death.” However, Mrs. Salberg appeared pro se in the 

Veterans Court, and the Secretary states explicitly that 

he does not argue waiver.

 
SALBERG v. MCDONALD 7

tially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance 

to the production of death.” [38 C.F.R.] § 3.312(b), 

(c)(1).

Vet. Ct. Op. at 5 (emphasis added).

The Board also made at least one finding under which 

Mrs. Salberg might lose for failure to satisfy the causation 

requirement of the last sentence of § 3.312(c)(1):

It is not sufficient to show that [the disability alleged to be a contributory cause of death] casually 

shared in producing death, but rather it must be 

shown that there was a causal connection.

See, e.g., Board Op. at 16 (“The two VA medical opinions 

. . . establish by a preponderance that it is less than likely 

that PTSD caused, contributed to, or was causally related

to the Veteran’s death.”) (emphasis added). That finding 

might alone defeat her claim without the need to construe 

the particular sentence disputed in this court. But the 

Veterans Court did not appear to base its decision on that

finding. 

In any case, despite these statements by the Veterans 

Court, the Secretary does not argue that the Veterans 

Court considered whether disabilities which “combined to 

cause death” or which “aided or lent assistance to the 

production of death” could support an award even if they 

did not “contribute[] substantially or materially” to death. 

He urges instead that this case be remanded to the Veterans Court so that it may construe the regulation in the 

first instance because, in his view, the proper construction 

of § 3.312(c)(1) has not been presented there. 

IV 

Under these rather unusual circumstances, but with 

an eye to providing clarity in the construction of this 

regulation, we grant the Secretary’s request to remand for 
8 SALBERG v. MCDONALD

the Veterans Court to consider whether PTSD was a 

“contributory cause” of Mr. Salberg’s death. We take no 

position on the proper construction of § 3.312(c)(1) beyond 

the following guidance. 

Preliminarily, we note that the Veterans Court could 

decide that no construction is necessary. As noted above, 

the Board appears to have found that there was no causal 

link at all between Mr. Salberg’s PTSD and his death. If 

Mrs. Salberg fails to overcome these apparent findings, 

the Veterans Court may conclude that there is simply no 

“causal connection” within the meaning of § 3.312(c)(1) 

and dispose of the case accordingly. 

With punctuation, as with other aspects of language, 

context matters. The Supreme Court has indicated that 

punctuation alone is not “a reliable guide for discovery of 

a statute’s meaning.” U.S. Nat. Bank of Oregon v. Indep. 

Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993). For 

example, in Elgin Nursing & Rehabilitation Center v. U.S. 

Department of Health and Human Services, the Fifth 

Circuit took a context-based approach to the use of semicolons. 718 F.3d 488 (5th Cir. 2013). The semicolons of 

38 C.F.R. § 3.312(c)(1) that delineate conditions which 

“contributed substantially or materially” to death, which 

“combined to cause death,” and which “aided or lent 

assistance to the production of death” indicate the close 

relationship of the three types of conditions. The Veterans 

Court therefore should look to the medical realities and 

take care to construe the regulation in a way that “all 

clauses [are] given effect.” Id. at 495.

Here, if all conditions that “contributed substantially 

or materially” to death necessarily have “combined to 

cause death” or “aided or lent assistance to the production 

of death,” then construing the semicolons in the regulation as equivalent to “or” would read “contributed substantially or materially” out of the regulation. In that 

case, the semicolons should be read in the conjunctive, 
SALBERG v. MCDONALD 9

and “combined to cause” and “aided or lent assistance to 

the production of” should be understood as elaborations 

that stake out the minimum bounds of “contributed

substantially or materially.” But we leave it to the Veterans Court to consider if this objection to a disjunctive 

interpretation is sound.

The Veterans Court also should be mindful of the 

teaching of the Supreme Court that a construction “must 

account for a statute’s full text, language as well as punctuation, structure, and subject matter.” U.S. Nat’l Bank of 

Or., 508 U.S. at 455. The other portions of § 3.312(c) 

include requirements that appear to speak to the materiality of a condition that is the “contributory cause of 

death.” See, e.g., § 3.312(c)(4) (“there is for consideration 

whether there may be a reasonable basis for holding that 

a service-connected condition was of such severity as to 

have a material influence in accelerating death”) (emphasis added). These clauses may indicate that a finding of 

“substantial[] or material[]” contribution to death is 

necessary for a condition to be considered a “contributory 

cause of death” and may direct a conjunctive construction 

of the semicolons. The Veterans Court also may consider 

the regulatory history, the use of comparable language or 

punctuation in any other regulations, and anything else 

bearing on the permissibility of the “and” construction

urged by the Secretary. 

Should the Veterans Court find it necessary to construe the regulation, it should provide a detailed explanation of its reasoning. As Mrs. Salberg has pointed out, for 

more than a decade the Veterans Court consistently has 

recited the phrases at issue here in the disjunctive. See, 

e.g., Watson v. Brown, 4 Vet. App. 189, 192-93 (1993) (“A 

contributory cause of death must be causally connected to 

the death and must have ‘contributed substantially or 

materially’ to death, ‘combined to cause death’, or ‘aided 

or lent assistance to the production of death.’ 38 C.F.R. 

§ 3.312(c)(1) (1992).”) It has relied on that formulation in 
10 SALBERG v. MCDONALD

at least two unpublished opinions. Roberson v. Shinseki, 

2011 WL 1042179, at *2–3 (Vet. App. Mar. 22, 2011); 

Flaming v. Principi, 2003 WL 21251694, at *1 (Vet. App. 

May 6, 2003). But we have not been able to find an opinion of the Veterans Court that squarely addresses the 

interpretive issues. It may well be, as the Secretary 

argues here, that the Veterans Court’s use of “or” in its 

opinions is “casual[].” The importance of § 3.312(c)(1) is 

clear from the large number of cases in the Veterans 

Court that implicate it. It would assist our review of such 

cases to have the benefit of the Veterans Court’s considered reasoning, informed by its many years of experience 

with the full range of relevant regulations and with their 

medical applications. 

Finally, we note that, where a regulation is ambiguous, the agency is entitled to deference in its interpretation unless that interpretation is “plainly erroneous or 

inconsistent with the regulation.” Auer v. Robbins, 519 

U.S. 452, 461 (1997) (internal quotation marks omitted). 

V 

Accordingly, we dismiss the portion of the appeal concerning malaria as a “contributory cause” of Mr. Salberg’s

death. We vacate the Veterans Court’s judgment to the 

extent that the judgment concluded that PTSD was not a 

“contributory cause of death,” and we remand to the 

Veterans Court for further proceedings consistent with 

this opinion. 

DISMISSED IN PART, VACATED IN PART,

AND REMANDED

COSTS

No costs.