# United States **Court of Appeals**  **for the Federal Circuit**

______________________
MICHAEL A. HUDGENS, Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2015

- 7030

______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 13

- 0370, Chief Judge Bruce E. Kasold, Judge Alan G. Lance

, Sr., Judge Robert N. Davis.

______________________

Decided: May 18, 2016

______________________

T HOMAS E DWARD A NDREWS III , Andrews Law Office LLC, Columbia, SC, argued for claimant

- appellant.

I GOR H ELMAN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, argued for respondent

- appellee. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN
, J R ., M ARTIN F. H OCKEY
, J R ., C OURTNEY D. E NLOW ; D AVID J. B ARRANS
, A MANDA B LACKMON
, Office of General Counsel, United States Department of Veterans Affairs, Washin gton, DC.HUDGENS v. MCDONALD 2

______________________

Before O’M ALLEY
, P LAGER
, and W ALLACH
, Circuit Judges.

O’M ALLEY
, Circuit Judge

. Mr. Hudgens appeals from the judgment of the Court of Appeals for Veterans Claims (“Veterans Court”) . That
court (1) held that Mr. Hudgens is not entitled to compe nsa tion for his prosthetic knee replacement under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (“DC 5055”) ; (2) vacat ed and remand ed the decision of the Board of Veterans’ Appeals (“Board”) denying Mr. Hudgens a disability rating of greater than 10 percent for degener ative joint disease in the right knee ; (3) vacat ed and r emand ed the decision of the Board denying entitlement to a compensable disability rating for instability in the right knee for a prior time period ; and (4) reman ded to the Board for a determination of whether Mr. Hudgens’s partial knee replacement can be rated by analogy to DC
5055

. Hudgens v. Gibson , 26 Vet. App. 558 (2014)

. The issue before us on appeal is whether Mr. Hudgens is entitled to compensation for hi s prosthetic knee replac ement under DC 5055. For the reasons below, we reverse and remand for further proceedings consistent with this opinion.

B ACKGROUND
Mr. Hudgens injured his right knee while serving on active duty in the U.S. Army. Joint Appendix (“ JA ”) 2 . In 2003, Mr. Hudgens had partial knee replacement surgery on his right knee. Id. On August 16, 2006, Mr. Hudgens sought benefits with the Department of Veterans Affairs (“VA” or “Secretary”) for his service

- connected knee inj ury. JA 105

. A. Regional Office Decisions
Mr. Hudgens filed claims for (1) degenerative joint disease in the right knee ; (2) instability in the right knee ;H UDGENS v. MCDONALD 3

and later (3) an evaluation for his prosthetic knee r eplacement. On December 29, 2006, the VA Regional Office (“RO” ) granted Mr. Hudgens ’s claim for benefits based on his degenerative joint disease of the right knee and assi gned a 10 percent evaluation. JA 105 . On Se ptember 28, 2007, Mr. Hudgens filed a claim for an i ncreased evaluation for instability in his right k nee. JA
260 . On November 21, 2007, the RO assigned an add itional 10 percent evaluation for Mr. Hudgens ’s instability in his right knee. JA 260, 263

. On February 3, 2009, after receiving the results of Mr. Hudgens ’s then

- recent VA orthopedic exam, the RO reduced the rating for Mr. Hudgens ’s right knee inst abi lity from 10 to 0 percent. JA 267 . The RO still continued the previously assigned 10 percent evaluation for dege nerative jo int disease . JA 266

. After filing a second claim for increased evaluati on of his knee instability and having it denied by the RO on April 22, 2009, Mr. Hudgens filed a Notice of Disagree ment. JA 275 . Mr. Hudgens unde rwent another VA orthopedic exam, but the RO again found that the 0 percent evaluation for right knee inst ability was warrant ed. JA 288

. On March 16, 2010, Mr. Hudgens filed a second N otice of Disagreement, this time arguing that he should be awarded 100 percent evaluation for his prosthetic knee replacement under DC 5055. U nder the heading “Pro sthetic Impl ants” DC 5055 states:
5055 Knee replacement (prosthesis).
Prosthetic replacement of knee joint:
For 1 year following implantation of pro sthesis......................................................100
With chronic residuals consisting of severe painful motion or weakness in the affected extremi ty

................ ................................60HUDGENS v. MCDONALD 4

With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262.
Minimum rating...... ...........................30
On March 31, 2 010, the RO denied the increase in evalu ation, finding that DC 5055 applied only to total knee replacements , not partial knee replacements . JA 305

. B. Board Decision
Mr. Hudgens appealed the RO’s rating decisions to the Board . JA 70

. On December 26, 2012, the Board denied Mr. Hudgens: (1) a disability rating of greater than 10 percent for degenerative joint disease of the right knee ; (2) a disability rating of greater than 10 percent for inst ability in the right knee ; and (3) entitlement to a compe nsable disability rating for instability in the right knee for the time period between the two VA orthopedic exams. JA 7 9 . The Board additionally concluded that DC 5055 does not apply to Mr. Hudgens because he “underwent only a ‘partial’ kne e replacement, and not the total pro sthetic replacement of the knee join t contemplated [by DC 5055].” JA 77 . The Board did not address whether DC 5055 can be applied to Mr. Hudgens by a nalogy. Id.

C. Veterans Court Decision
On January 30, 2013, Mr. H udgens appealed the Board’s decision to the Veterans Court . JA 16 . Mr. Hudgens argued that the Board erred in finding that DC 5055 does not apply to partial knee replacements. Hudgens , 26 Vet. App. at 560

. The Veterans Court disa greed. Id. at 565

. In rendering its decision, t he Veterans C ourt considered the plain meaning of the term “knee joint” in DC 5055. Id. at 561 . After looking to a medical dictio nary for guidance, the Veterans Court concluded that DC
5055 is unambiguous and applies to the pros thetic r eplacement of the whole knee joint, which must includ e allH UDGENS v. MCDONALD 5

three components of the knee. Id. The Veterans C ourt also concluded that such a definition was “consistent with the overall statutory scheme.” Id. In particular, the Veterans Court looked to a related regulation, DC 5054, which addresses prosthetic hip replace ments. Hudgens

, 26 Vet. App. at 561

. The Veterans C ourt reasoned that, since DC 5054 explicitly includes language relating to a partial hip replacement, the VA Secretary “knew how to provide benefits for a prosthesis replacing part of a joint, as opposed to the entire joint, when he intended to.” Id. Finally, because the Veterans C ourt found DC 5055 to be unambiguous, it was not swayed by the fact that the majority of prior Board decisions were incon sistent with the Veterans C ourt’s current interpre tation of this regul ation. Id. at 562

– 63

. After disposing of this interpretive issue, the Veterans Court remanded several of Mr. Hudgens’s other claims to the Board. Id. at 565 . Th e Veterans C ourt asked the Board to address whether Mr. Hudgens’s partial knee replacement can be rated by analogy to DC 5055. 1 Id. at 564

. The Veterans Court also vacated the Board’s dec ision on the issues of right knee instability and degener ative joint disease, remanding these matters to the Board for further adjudication. Hudgens , 26 Vet. App. at 565

. Specifically, th e Veterans C ourt found that the Board “failed to address the evidence of right knee dislocation, swelling, and pain or explain why they are not evidence of ‘cartilage, semilunar, removal of, symptomatic.’” Id. at 564

– 65 (citing DC 5259)

. Chief Judge Kas old dissented with respect to the m ajority’s holding that DC 5055 does not apply to partial

1 38 C.F.R. § 4.20 allows the VA to evaluate specific disorders not listed in the regulations under codes for similar disorders. Hudgens , 26 Vet. App. at 563

.HUDGENS v. MCDONALD 6

knee replacements, finding the regulation to be ambig uous. Id. (Kasold, C.J., dissenting). In particu lar, Chief Judge Kas old pointed out that the majority of Board decisions to address DC 5055 had found that the regul ation does appl y to partial knee replace ments. Id. In addition, Chief Judge Ka sold argued that, in view of the inconsistent interpretation of the regulation by the age ncy, the Secretary’s current interpretation does not wa rrant deferenc e. Id. at 567

. Instead, Chief Judge Ka sold insisted that the ambiguity “be interpreted in the light most favorable to the veteran .” Id. (citing, inter alia

, Brown v. Gardner , 513 U.S. 115, 118 (1994))

. On July 17, 2014, Mr. Hudgens filed a motion for r econsideration regarding the Veterans Court’s interpret ation of DC 5055. Hudgens v. McDonald , N o. 13

- 0370, 2014 U.S. App. Vet. Claims LEXIS 1769, at *1 (Vet. App. Oct. 20, 2014). On October 20, 2014, the Veterans Court denied the motion, with Chief Judge Kasold again di ssenting. Id. at *3. Mr. H udgens timely appealed to this

c ourt.

D. New Agency Interpretation of DC 5055
On July 16, 2015, twelve days before the Secretary’s final brief was due with this c ourt, the VA published a final informal rule relevant to this litigation. Appellant Reply Br. at 1 (citing Agency Interpretation of Prosth etic Replacement of Joint , 80 Fed. Reg. 42,040 (Dep’t of Vete rans Affairs July 16, 2015) [hereinafter Agency Interpret ation ]) . The regulation explains that “[i]n view of the

. . . VA’s longstanding interpretation, VA is amending its regulations to clarify that the language of § 4.71a, Pro sthetic Implants, which refers to replacement of the named joint, refers to replacement of the joint as a whole, except where it is otherwise stated under DC 5054.” Agency Interpretation at 42,040

– 41.H UDGENS v. MCDONALD 7

S TANDARD OF R EVIEW

“ We have the authority to decide all relevant que stions of law and can set aside a regulation or an interpr etation of a regulation relied upon by the Court of Appeals for Veterans Claims when we find it to be arbitrary, capricious, and an abuse of discretio n, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observance of procedure r equired b y law. ” Bustos v. West , 179 F.3d 1378, 1380 (Fed. Cir. 1999) ; see 38 U.S.C. § 7292(d)(1)

. “We review statut ory and regulatory interpretations of the Veterans Court de novo .” Johnson v. McDonald , 762 F.3d 1362, 1364 (Fed. Cir. 2014) ; accord DeLaRosa v. Peake , 515 F.3d 1319, 1321 (Fed. Cir. 2008)

. D ISCUSSION
Mr. Hudgens asks that we reverse the Veterans Court’s judgment that an evaluation for DC 5055 is limited to instances in which a claimant undergoes a full knee replacement. The VA argues that we do not have jurisdiction to hear Mr. Hudgens’s appeal, and that

, if we do , the Veterans Court’s judgment should be affirmed. We first address the parties’ jurisdictional dispute before turning to the merits of Mr. Hudgens’s appeal.

A. Jurisdiction

Mr. Hu dgens argues that, although the Veterans Court’s remand order means that its decision is not final as to all issues presented, this c ourt has jurisdiction because this appeal satisfies the Williams standard for finality on discrete and separable claims

. S ee W illiams v. Principi , 275 F.3d 1361, 1364 (Fed. Cir. 2002).

This c ourt’s review of Veterans Court decisions is go verned by 38 U.S.C. § 7292. Although the statute does not explicitly impos e a finality requirement, this c ourt hasHUDGENS v. MCDONALD 8

generally declined on prudential grounds to review dec isions of the Veterans Court where any issues have yet to be decided

. Joyce v. Nicholson , 443 F.3d 845, 849 (Fed. Cir. 2006). Williams established an exception to this rule:
[W]e will depart from the strict rule of finalit y when the Court of Appeals for Veterans Claims has remanded for further proceedings only if three conditions are satisfied: (1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will d ir ectly govern the remand proceedings or, (c) if r eversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party see king review; and, (3) there must be a substantial risk that th e decision would not survive a remand, i.e., that the remand proceeding may moot the i ssue.

275 F.3d at 1364 (footnotes omitted)

. There is no question that Mr. Hudgens meets factors (1)(a) and (2) of the Williams test

. The Veterans Court’s interpretation of DC 5055 was a clear and final decision that is separable from the remanded issue s , which relate to separate claims for relief

. And

, Mr. Hudgens will be harmed because the Board on remand will not address his rating under DC 5055

, and “rather than receiving the automatic minimum rating under DC 5055 for having a knee replacement, he [will have] to seek a rating under Section 4.20 [rating by analogy] and meet the requir ements called for by it.” Appellant Reply Br. at 1 3

. The parties dispute , however

, whether Mr. Hudgens meets the third Williams factor

. Mr. Hudgens argues that his case meets the third fa ctor of Williams

, asserting that “the applicability of Dia gnostic Code 5055 will not be ad dressed in the remand, ”

an d there is a substantial risk that the resolution of theH UDGENS v. MCDONALD 9

remaining issues will moot the currently

- appealed issue

. Appellant Br. at 10

. The VA disagrees, contending that this case is akin to Myore

, Donnellan

, and Joyce

, where this court held that it lacked jurisdiction over the a ppeal ed remand orders of the Veterans Court. See Myore v. Principi , 323 F.3d 1347 (Fed. Cir. 2003) ; Donnellan v. Shinseki , 676 F.3d 1089 (Fed. Cir. 2012); Joyce v. Nicho lson , 443 F.3d 845, 850 (Fed. Cir. 2006)

. We briefly review these cases.

In Myore

, a widow of a deceased veteran claimed ve terans benefits under 38 U.S.C. § 1310(a), which provides dependency benefits to spouses of deceased veterans. 323 F.3d at 1348 . The Board found that Mrs. Myore wa s not entitled to benefits because of her husband’s willful misconduct in causing his own death. Id. at 1349. On appeal, she urged the Veterans Court to reverse the Board’s decision, proposing a different interpretation of 38 U.S.C. § 1310(a)

— that the s tatute does not bar recovery due to willful misconduct. Id. at 1349

– 50. The Veterans Court rejected Mrs. Myore’s interpretation of the statute but remanded the case because the Board needed to decide if it had properly assisted the claimant in defeating the finding of willful misconduct. Id. Mrs. Myore a ppealed to this c ourt, contending that she met the Williams exception because the Veterans Court misinterpreted the statute at issue and, if that finding were reversed, Mrs. Myore would be entitled to benefits. Myore , 323 F.3d at 1352. This c ourt rejected her argument , holding that

“ [t] he mere fact that the Veterans Court as part of a remand decision may have made an error of law that wi ll govern the remand proceeding . . . does not render that decision final.” Id. Although the statutory interpretation issue would not be addressed again on remand in Myore

, we did not find that the issue “evade[d] further review” because “[i]f Myore loses before the Board [on remand], and [the st atute] is applied against her, and the Board’s decision is affirmed by the Veterans Court, then MyoreHUDGENS v. MCDONALD 10

may seek review of that court’s interpretation of [the statute] on what will then be a final judgment.” Id.

Likewise , in Donnellan , the Veterans Court remanded the case to the Board after finding that Mr. Donnellan was not entitled to a statutory presumption of aggrav ation. 676 F.3d at 1091. Mr. Donnel lan appealed to this

c ourt, arguing that this remand order was final because “he may be able to meet t he burden imposed by the Ve terans Court and prevail on his claim; if he does, the legal issue [of the statutory presumption] he seeks to present to this court will not reach this court in his case.” Id. This

c ourt rejected Mr. Donellan’s argument, holdin g that “[t]he risk that a decided issue will not survive a remand does not include the possibility that the appellant will prevail on remand and therefore will not need to take another appeal.” Id. at 1092. In particular, we noted in Donnellan that the “ test for whether [an] issue may evade review is whether, if the claimant loses on remand, the claimant will not be able to raise the issue on appeal from an adverse final judgment.” Id. (citing Myore , 323 F.3d at 1352).
Finally, i n Joyce , we clarified that there is a distin ction between veterans cases in which a single claim is being adjudicated and cases in which multiple claims are being adjudicated. 443 F.3d at 850

. In cases involving a single veteran’s claim, if a claimant loses on remand and the Veterans Court upholds the Board, the claimant will be able to “raise any objections to the judgment that was entered [on appeal], whether the errors arose from the original Court of Appeals for Veterans Claims decision or the second and final decision.” Id. (emphases added). On the other hand, if a veteran’s case involves separate claims for relief, “ under some circumstances review is available for a claim for which final judgment has been entered even if other, separate claims have been reman ded. ” Id. at 850 (discussing Elkins v. Gober, 229 F.3d 1369,
1376 (Fed. Cir. 2000)). In particular, in Elkins , we heldH UDGENS v. MCDONALD 11

that ‘‘[b]ecause

. . . each ‘particular claim for benefits’ may be treated as distinct for jurisdictional purposes, a vete ran’s claims may be treated as separable on appeal.’’ Elkins , 229 F.3d at 1376 (quoting Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000))

. We cautioned, however, that “ we will not review final judgments on separable claims where other claims are still pending if our re view would ‘disrupt the orderly process of adjudica tion’— for example, where the appealed claim is ‘inextricably inte rtwined ’ with the remanded claim. ” Joyce

, 443 F.3d at 850

. Here, we conclud e that Mr. Hudgens’s case is disti nguishable from those at issue in Myore and Donnellan

, each of which involved appeals from remand orders in cases involving a single claim for veterans’ benefits. Instead, Mr. Hudgens’s case falls within the jurisdictional exception for separate remanded claims , as explained in Joyce

. Here , the claims remanded by the Veterans Court are separate claims for right knee disability distinct from the non

- remanded claim of whether Mr. Hudgens is entitled to an evaluation for prosthetic knee replacement under DC 5055. Mr. Hudgens’s path to a chieving a rating under DC 5055 is thus a separate claim that cannot be reviewed by the Board on remand . Nor does Mr. Hud gens’s appeal fall within the category of cases in which a

non

- remanded claim is “inextricably intertwined” with a remanded claim such that “both claim compensation for the same disability.” Joyce , 443 F.3d at 850. As Mr. Hudgens correctly notes, his “claim for a rating under DC 5055 was not [remanded]

, ” and the Veterans Court ’s remand for a determination of whether Mr. Hudgens
meets t hat regulation by analogy “is not the same” as remanding to determine whether he meets the rating directly under that specific regulation. Appellant Reply Br. at 12

. Accordingly , we hold that we have jurisdiction to review whether Mr. Hudgens is entitled to an evalu ation under DC 5055

.HUDGENS v. MCDONALD 12

B. Whether DC 5055 Covers Partial Knee Replacement

We now address whether the Veterans Court erred in holding that DC 5055 is limited to instances where a claimant has undergone a full knee replacement

. The VA argues that the Veterans Court did not err in concluding that DC 5055 unambiguously applies only to full knee replacement s , and if ambiguous, the Secretary’s interpr etation of DC 5055 is entitled to deference under Auer v. Robbins , 519 U.S. 452 (199 7)

. Appellee Br. at 40. Mr. Hudgens argues that the Veterans Court’s interpretation of DC 5055 must be reversed . He contends that the rule unambiguously does apply to all knee replacements, even partial ones, and that, under Gardner any “ interpretive dou bt is to be resolved in the veteran’s favor.” Appellant Br. at 45 (citing Gardner , 513 U.S. at 118)

. Mr. Hudgens argues that Auer deference is not warranted in this case and, thus, can not displace the rule of Gardner

. W hile we are not prepared to say that DC 5055 u nambiguously includes partial knee replacements, we agree with Mr. Hudgens that (1) DC 5055 does not una mbiguously exclude such replacements; (2) the VA’s inte rpretation of DC 5055 is not entitled to deference under Auer ; and (3) Gardner comp els the conclusion that the Veterans Court erred in its judgment that DC 5055 is limited to instances of full knee replacement. With r espect to the first point , it is undisputed that the regul ation does not expressly state that the only prosthetic implant s covered are those for full knee replacements. While the Veterans Court in this case cited a dictionary for the proposition that the “knee joint” is generally considered to be made up of a number of component parts, there is nothing in the regulation tha t expressly states that all of those component parts must be replaced by a prosthesis before DC 5055 applies. And , the government does not seem to dispute Mr. Hudgens’s contention that even total knee replacements rarely replace or alter all ofH UDGENS v. MCDONALD 13

the components of the knee referenced in the Veterans Court’s cited dictionary definition, such that the practical effect of reliance on that definition would exclude almost all knee replacements from the reach of DC 5055. 2 I t is notable , moreover, that 11 out of 1 4 of the Board’s dec isions regarding DC 5055 found that DC 5055 is applicable to partial knee replacements

, largely because it does not expressly exclude that form of prosthetic implant. Indeed
t he Veterans Court itself previously has held that DC 5055 applies to partial knee replacements because it does not unambiguously state the contrary

. Taylor v. Shinseki

, No. 10

- 2588, 2012 U.S. App. Vet. Claims LEXIS 1219 (June 18, 2012) ( nonprecedential ). Where a majority of the decisions to c onsider this question have found that partial knee replacements are covered by DC 5055, it

seem s a stretch to conclude that th e ambiguities those decision makers perceived can all be clarified by reference to one dictionary not cited in the regulation. 3

T urning to the second question— whether Auer deference requires that we accept the Secretary’s current

2 We are similarly unpersuaded by the Veterans Court’s reference to DC 5054. That the Secretary may have used different language when referring to hip r eplacements tells us very little in light of the anatomical difference between hips a nd knees

. 3 Mr. Hudgens asserts that the number of B o ard decisions granting ben e fits under DC 5055 for partial knee replacements is even higher

— 17 out of 21 according to his count. The precise numb e r is not important; what is important is that it is undisputed that the vast majority of B o ard decisions considering the question have conclu ded either that DC 5055 unambiguously covers partial knee replacements, or at least that it does not unambig uously exclude them.HUDGENS v. MCDONALD 14

interpretation of DC 5055

— we conclude it does not. Under Auer , an agency’s interpretation of its own regul ation controls, unless the interpretation is “plainly erron eous or inconsistent with the regulation.” Auer , 519 U.S.

at 461. Auer itself explained , however, that in order for this deference to apply, the interpretation must “reflect the agency’s fair and considered judgment on the matter in questio n.” Id. at 462. In Christopher v. Smithkline Beecham , the Supreme Court further clarified that defe rence to an agency’s interpretation is “unwarranted” when “the agency’s interpretation conflicts with a prior [agency] interpretation, or when it appears t hat the interpretation is nothing more than a ‘convenient litigating position,’ or a ‘ post hoc rationalizatio[n]’ advanced by an agency see king to defend past agency action against attack.’” 132 S. Ct. 2156, 2166 (2012) (citations omitted).

First , we reje ct the VA’s argument that “the Secretary has consistently interpreted DC 5055 as applying only to total knee replacements.” VA Br. at 36 . In advancing this argument, the VA cites to the Secretary’s arguments in Taylor v. Shinseki and to the Agency Interp retation

. VA Br. at 37 . The Secretary asks that we disregard the numerous inconsistent rulings by the Board, stating that “they are not synonymous with the VA’s position on an issue” and that “if the Secretary disagrees with a board decision, he is unabl e to assert this position because he cannot appeal [it].” VA Br. at 31 . These arguments are unpersuasive. As Chief Judge Kas old explained, “ [t] he Board renders the final decision for the Secretary on all questions in matters affecting the provision of b enefits, subject only to the statutes governing such benefits and related judicial rulings, as well as VA regulations, i nstructions of the Secretary, or VA General Counsel opi nions.” Hudgens , 26 Vet. App. at 566 (Kasold, C.J., dissenting) (citing 38 U.S.C . § 7104(c))

. If the Secretary is dissatisfied with the Board’s inte rpretation of a regulation, the Secretary may instruct theH UDGENS v. MCDONALD 15

Board regarding what the Secretary believes is the correct interpretation , and such instructions are binding on the Board

. 38 U.S.C. § 7104(c) (“The Board shall be bound in its decisions by the regulations of the Department , i nstructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.”)

. As further indication of the weight accorded to B oard interpretations of VA regulations, the Veterans Court has previously looked to Board decisions in assessing the Secretary’s interpretation. See

, e.g. , Fountain v. McDonald , 27 Vet. App. 258, 270

– 71 (2015) ( stating that prior Board inte rpretations “ provide [] information about the application of the Secretar y’ s position ” and accepting the Board’s inte rpretation that tinni tus i s an organic disease of the ner vous system ). Despite the Veterans Court’s stated practice of looking to prior Board decisions for guidance, here the Veterans Court seems to have disregarded the fact that the vast ma jority of Board decisions favor Mr. Hudgens’s view of DC 5055. Because “the agency’s interpretation conflicts with a prior [agency] interpretation ,” it would be inappro priate to afford Auer deference here. C hristopher

, 132 S. Ct. at 2166

. Second, we cannot ignore that

, during the pendency of this appeal, the agency found the need to clarify the language of a regulation that it now argues has always been clear on its face

. I n these circumstances, it is difficult to avoid the conclusion that the regulation is sufficiently ambiguous to lead to conflicting rulings and that

current agency interpretation of DC 5055 was convenien tly adopted to support the Veterans Court’s i nterpretation in this case

. Such “ post hoc rationalization ” does not warrant deference under Auer , particularly when the agency’s interpretation conflicts with the Veterans Court’s prior decision in Taylor

. See Christopher , 132 S. Ct. 2156HUDGENS v. MCDONALD 16

(finding “stro ng reasons for withholding the deference that Auer generally requires”). 4 We accordingly decline to apply Auer deference to the VA’s interpretation of DC
5 055 in this case

. Mr. Hudgens argues that we are bound to apply the Gardner presumption to resolve any doubt in the inte rpretation of DC 5055 in his favor

. Appellant Br. at 45 (citing Gardner , 513 U.S. at 118) . In these circumstances,

we agree

. 5 “[E] ven if the government’ s asserted interpr etation of [ DC 5055 ] is plausible, it would be appropriate und er Brown [ v. Gardner ] only if the statutory language unambiguously [supported the government’s interpret ation].” Sursely v. Peake , 551 F.3d 1351, 1357 (Fed. Cir. 2009)

. Here, we find that Mr. Hudgens’s interpretation of DC 5055 is permitted by the text o f the regulation . DC 5055 is under the heading “Prosthetic Implants” and

4 We do not cite Taylor for its precedential effect

— since it has none. We cite it to emphasize how many decision makers rejected the conclusion that DC 5055 unambiguously compels the reading given to it by the Veterans Court majority in thi s case.

5 In many cases, the tension between Auer and Gardner is difficult to resolve, since both seemingly direct courts to resolve ambiguities in a VA regulation but would, in many cases, counsel contrary outcomes

. Where, as here, however, there are fi rm grounds upon which to conclude that Auer deference does not apply, there is no need to resolve the tension between the two binding lines of authority or to q uestion whether one should be aba ndoned in favor of the other. See Johnson v. McDonald

, 762 F.3d 1362 (Fed. Cir. 2014) (O’Malley, J.

, concurring ) (citing Decker v. Northwest Envtl. Def. Ctr. , 133 S. Ct. 1326, 1339 (2013) (Roberts, C.J., concurring) (noting “there is some interest in reconsidering [ Auer ]”)).H UDGENS v. MCDONALD 17

merely lists a schedule of ratings for the condition “Knee replacement (prosthesis),” without elaboration or limit ation of the condition. See 38 C.F.R. § 4.71a, Diagnostic Code 5055 . Mr. Hudgens’s interpretation of DC 5055 is also consistent with the beneficence inherent in the veterans’ benefits scheme and with the majority of Board decisions that have interpreted this regulation. Accor dingly, we hold that Mr. Hudgens may be compensated under DC 5055 based on his par tial knee replacement.
We therefore reverse the judgment of the Veterans Court holding that Mr. Hudgens is not entitled to an evaluation for his prosthetic knee replacement under DC
5055

. In light of our decisio n, it is unnecessary for the Board to determin e whether Mr. Hudgens’s partial knee replacement can be rated by analogy to DC 5055. Our decision today leaves intact the judgment of the Veterans Court (1) vacating and remanding the Board’s decision denying Mr. Hudgens a disability rating of greater than 10 percent for degenerative joint disease in the right knee; and (2 ) vacating and remanding the decision of the Board denying entitlement to a compensable disability rating for instability in the right knee f or a prior time period

. C ONCLUSION
For the above reasons, we reverse the judgment of the Veterans Court on the issue of whether DC 5055 covers partial knee replacements, and we remand for further proceedings consistent with this opinion

. REVERSED AND REMAN DED