N OTE : This disposition is nonprecedential.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: Apri l 6, 2015

______________________

J ANET P IOLI , Brinks Gilson & Lione, Chicago, IL

, argued for claimant

- appellant. Also represented by L AURA A. L YDIGSEN , D AVID H ANNA

.

J OSHUA S CHNELL , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent

- appellee. Also represented by S ONIA M ARIE O RFIELD , J OYCE R. B RANDA , R OBERT E. K IRSCHMAN , J R ., S COTT D. A USTIN ; Y. K EN L EE ,SALBERG v. MCDONALD 2

C HRISTINA L YNN G REGG , Office of General Counsel, Uni ted States Department of Veterans Affairs, Washington, DC.

______________________

Before P ROST , Chief Judge, T ARANTO , Circuit Judge , a nd F OGEL , District Judge

. *

F OGEL , 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 co nclusion 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 ambiguou s 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 ha ving been due to a service

- connected disability when the evidence establishes that such disability was either the principal or a con tributory 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 Califo rnia, 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 contri buted to death, it must be shown that it contribu ted 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 r ather it must be s hown that there was a causal connection.
Appellant Rose Salberg is the surviving spouse of Lawrence Sal berg, 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 “fu ngemia 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 co ntributi ng 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 “co ntributory cause of death.”
First, she point ed 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 sy ndrome.”SALBERG v. MCDONALD 4

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

was at l east exacerbated by the PTSD he suff ered as a result of the attack.
Second, Mrs. Salberg alleged that Mr. Salberg co nt racted 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 mala ria 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, t he 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 e rroneous, Mrs. Salberg has not pointed to a med ical record or other piece of evidence, either in

service or postserv ice, or before or after the vet e ran’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 r eview of the record has foun d none.
Vet. Ct. Op. at 6.SALBERG v. MCDONALD 5

As w e 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 que stions of law, including interpreting constitutional and statu tory 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 constit utional issue is presented.
Menegassi v. Shinseki , 638 F.3d 1379, 1381 (Fed. Cir. 2011) (citation omitted).

T hat Mr. Salberg in fact had service

- connected mala ria is a necessary precondition to the argument that se rvice

- connected malaria was a “contributory cause ” of his death. We have no jurisdiction to review the factu al 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. ”

II I
The remaining dispute about Mr. Salberg’s PTSD as a “contributory ca use ” 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”) . T he Secretary asserts that the “semi

- colons . . . delineate each clause, all of which have related meanings, each serving to furtherSALBERG v. MCDONALD 6

clarify the meaning of contributory death.” We unde rstand the Secretary’s position to be the following: a “co ntributory cause of death” is a “service

- conn ected 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 “substa ntial[ ] 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 material ly ” 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 ‘contrib utory cause’ of death, it must contribute substantially or materially.”). 2 In her briefing before this court , she a ppears to argue that the Veterans Court

, by quoting and paraphrasing the factual findings of the Board , endorsed the Board’s restrictive legal interpretation

. In paraphra sing 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 d eath; it is a contributory cause if it “contributed substa n2 Mrs. Salberg never argued in the Veterans Court that the Board failed to consider separately disabilities that “combined t o cause death” or “aided or lent assi stance 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, “co mbined 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 a lleged to be a contributory cause of de ath] casually shared in producing death, but rather it must be shown that there was a causal connection.
See, e.g.

, Board Op. at 1 6 (“T he two VA medical opinions

. . . establish by a preponderance that it is less than likely that PTSD caused , contributed t o, 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, d espite these statements by the Veterans Court , the Secretary does not argue that the Veterans Court consider ed 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 th is case be remanded to the Vete rans Court so that it may construe the regulation in the first inst ance 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 forSALBERG v. MCDONALD 8

the Veterans Court to consider whether PTSD wa s a “contributory cause ” of Mr. Salberg’s death

. We take no position on the proper construction of § 3.312(c)(1) be yond the following guidance

. Preliminarily, we note that the Veterans Court could decide that no construction is n ecessary. As noted above

, the Board appear s 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, i n Elgin Nursing & Rehabilitation Center v. U.S. Department of Health and Human Services , the Fifth Circuit took a context

- base d approach to the use of sem icolons. 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

“ com bined to cause death

, ” and which “ aided or lent assis tance to the production of death ” indicate the close relationship of the three types of conditions

. T he 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 .” I d. at 495

. Here

, if all conditions that “ contributed substantially or materially ” to death necessarily have “ com bined to cause death” or “aided or lent assistance to the production of death ,” then construing the semicolons in the regul ation as equivalent to “or” would read “contributed su bstantially 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 und erstood as elaborations that stake out the minimum bounds of “contributed substantially or materially.” But we leave it to the Vete rans Court to consider if this objection to a disjunctive interpretation is sound.

T he 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 pun ctuation, 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 mater iality 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 ”) (emph asis added). These clauses may indicate that a finding of

“ substan tial[] 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. T he 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 co nstrue the regulation

, it should provide a detailed explan ation of its reasoning

. As Mrs. Salberg has pointed out, for more than a decade the Veterans Court co nsistently 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).” ) I t has relied on that formulation inSALBERG v. MCDONALD 10

at least two unpublished opinions

. Roberson v. Shinseki

, 2011 WL 1042179, at *2

– 3 (Vet. Ap p. 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 opi nion 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 “cas u al [] .” The importance of § 3.312(c)(1) is clear from the large number of cases in the Veter ans Court that implicate it . I t would assist our review of such

cases to have the benefit of the Veterans Co urt’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 ambig uous, the agency is entitled to deference in its interpr et ation 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, w e dismiss th e portion of the appeal co ncerning 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 th is opinion

. DISMISSED IN PART, V ACATED IN PART, AND REMANDED

C OSTS

No costs.