UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 13-0370

MICHAEL A. HUDGENS, APPELLANT,

V.

SLOAN D. GIBSON,

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 22, 2014 Decided June 27, 2014)

Thomas E. Andrews III, of Columbia, South Carolina, for the appellant.

Nathan P. Kirschner, with whom Will A. Gunn, General Counsel, David L. Quinn, Acting

Assistant General Counsel, Rebecca A. Baird, Deputy Assistant General Counsel, and Justin P.

Zimmer, all of Washington, D.C., were on the brief, for the appellee.

Before KASOLD, Chief Judge, and LANCE and DAVIS, Judges.

DAVIS, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed an opinion

dissenting in part and concurring in part.

DAVIS, Judge: U.S. Armyveteran Michael A.Hudgens appealsthrough counsel a December

26, 2012, decision of the Board of Veterans Appeals (Board) that, in part, (1) denied a disability

rating greater than 10% for degenerative joint disease of the right knee with accompanying limitation

of extension prior to November 25, 2009; (2) denied a disability rating greater than 10% for

instability of the right knee prior to November 22, 2008; and (3) upheld the reduction of Mr.

Hudgens's 10% disability rating for right knee instability from November 22, 2008, to November 24,

2009. On appeal, Mr. Hudgens argues, among other things, that the Board erred in concluding that 1

38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 does not apply to partial knee replacements. A panel

The Court notes that it lacks jurisdiction over (1) the claims of entitlement to service connection for nerve

1

damage of the cervical spine and increased evaluations for degenerative joint disease and instability of the right knee

fromNovember 25, 2009, and (2) the issue of the appellant's entitlement to a total disability rating based upon individual

unemployability, because these matters were remanded by the Board. See 38 U.S.C. §§ 7252(a), 7266(a); Breeden v.

Principi, 17 Vet.App. 475, 478 (2004) (a Board remand "does not represent a final decision over which this Court has

jurisdiction"). 
decision is appropriate as this is an issue of first impression. See Frankel v. Derwinski, 1 Vet.App.

23, 25-26 (1990). For the reasons stated below, the decision of the Board will be in part reversed

and in part set aside and the matters remanded for further adjudication.

I. BACKGROUND

Mr. Hudgens served in the U.S. Army from August 1977 to August 1980. He injured his

right knee in service. In 2003, he underwent a unicompartmental right knee arthroplasty, or partial

knee replacement. In 2006, Mr. Hudgens applied for disability compensation for his knee. The

regional office (RO) awarded him a 10% disability rating for degenerative joint disease, claimed as

right knee injury. In 2007, the RO awarded another 10% rating, this time based on knee instability. 

In 2009, the RO reduced the rating for right knee instability from 10% to a noncompensable rating,

effective November 22, 2008.

Before the Board, Mr. Hudgens argued that he should be rated by analogy under DC 5055

("Knee replacement (prothesis)"). The Board declined to do so because it determined that DC 5055

applies only to "the total prosthetic replacement of the knee joint," and not to partial knee

replacements such as Mr. Hudgens's. The Board also upheld the RO's reduction of Mr. Hudgens's

rating for right knee instability from November 22, 2008, to November 24, 2009. 

II. THE PARTIES' ARGUMENTS

Mr. Hudgens raises three arguments on appeal. First, he argues that the Board erred in

concluding that DC 5055 applies only to total knee replacements where, by its plain language, it

applies to all knee replacements. Should the Court find the regulatory language ambiguous, Mr.

Hudgens argues that the Court should resolve interpretive doubt in favor of the veteran. If the Court

should reach the issue of the Secretary's interpretation of its regulation, Mr. Hudgens urges the Court

to consider that 11 Board decisions have awarded benefits under DC 5055 based on partial knee

replacements, while only 3 Board decisions (including the one here on appeal) have denied benefits

on the basis that DC 5055 applies only to total knee replacements. 

The Secretary responds that the plain language of DC 5055 shows that it applies to the total,

compound knee joint. If the Court should find the language ambiguous, the Secretary argues that

2
the Court must defer to his regulatory interpretation as expressed on appeal and in a 2009 VA

Compensation and Pension Service Bulletin, and that the Court should not consider Board decisions

as evidence of the Secretary's regulatory interpretation. 

Second, Mr. Hudgens argues that the Board erred in upholding the reduction of his 10%

rating for right knee instability because the record contains evidence of instability that was not

discussed by the Board. The Secretary concedes that the Board erred in stating that there was no

evidence of instabilitywhere the record includes a June 2009 medical note stating that Mr. Hugdens's

knee dislocated on extension and a November 2009 medical note stating that his knee buckled and

gave out. However, the Secretary argues that remand, rather than reversal, is warranted.

Third, Mr. Hudgens argues that the Board erred in not addressing whether a higher disability

rating was warranted under DC 5258 ("Cartilage, semilunar, dislocated, with frequent episodes of

'locking,' pain, and effusion into the joint."), where the issue was raised by the evidence. The

Secretary argues that DC 5258 is not applicable because there is no evidence of dislocated cartilage. 

However, the Secretary concedes that remand is warranted for the Board to discuss whether a higher

disability rating was warranted under DC 5259 ("Cartilage, semilunar, removal of, symptomatic"),

which applies to the removal of cartilage from the knee.

III. ANALYSIS

A. Interpretation of DC 5055

1. Partial knee replacements are not covered by DC 5055.

The plain language of DC 5055 does not apply to partial knee replacements. Regulatory 2

interpretation begins with the plain meaning of the words used. Brown v. Gardner, 513 U.S. 115,

120 (1994); see also Smith v. Brown, 35 F. 3d 1516, 1523 (Fed. Cir. 1994) (the canons of statutory

interpretation applyto interpreting regulations). DC 5055 refers to "[p]rosthetic replacement of knee

joint." "Knee joint" is defined as "the compound joint at the knee, formed between the articular

 In relevant part, DC 5055 states: 2

"5055 Knee replacement (prosthesis).

Prosthetic replacement of knee joint:

. . . . 

Minimum rating . . . . 30%."

3
surface of the patella, the condyles and patellar surface of the femur, and the superior articular

surface of the tibia." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 159 (32d ed. 2012); see

Mallard v. U.S. Dist. Court, 490 U.S. 296, 301 (1989) (using dictionary to assist in review of plain

meaning of statute). The regulation therefore applies to prosthetic replacements of the compound

knee joint, which includes all three compartments of the knee. Nothing in the plain language of the

regulation indicates that it applies to replacements of less than a complete knee joint, such as the

unicompartmental knee prosthesis that Mr. Hudgens has.

The conclusion that the regulation does not apply to partial knee replacements also is

consistent with the overall regulatory scheme, which "should be construed so that effect is given to

all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that

one section will not destroy another unless the provision is the result of obvious mistake or error."

Roper v. Nicholson, 20 Vet.App. 173, 178 (2006) (quoting 2A N. SINGER, SUTHERLAND ON

STATUTORYCONSTRUCTION, § 46:06 (6th ed. 2000); see United States v. Hartwell, 73 U.S. (6 Wall.)

385, 396 (1868) (courts should construe statutory language so as to harmonize with context and

promote legislative policy). DC 5054, DC 5055's neighbor in the regulatory subpart titled

"Prosthetic Implants," applies to hip replacements. In relevant part, DC 5054 mirrors the language

of DC 5055, except that instead of stating "[p]rosthetic replacement of knee joint," it states

"[p]rosthetic replacement of the head of the femur or of the acetabulum." (emphasis added). The 3

Secretary's choice of this disjunctive regulatory language in DC 5054 shows that he knew how to

provide benefits for a prosthesis replacing part of a joint, as opposed to the entire joint, when he

intended to. Interpreting DC 5055's "knee joint" language to include both total and partial knee joint

protheses would render superfluous the Secretary's language in DC 5054 specifically providing

benefits to veterans with partial hip prostheses. Roper, supra; see also Bailey v. United States, 516

U.S. 137, 146 (1995) ("We assume that Congress used two terms because it intended each term to

have a particular, nonsuperfluous meaning."). 

The Court's decision in Jones v. Shinseki, 26 Vet.App. 56 (2012), is instructive. In Jones,

the Court considered whether "the Board committed legal error by considering the effects of

The hip joint is "the joint formed between the head of the femur and the acetabulum of the hip bone." 3

DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 159 (32nd ed. 2012).

4
medication on the appellant's IBS [(irritable bowel syndrome)] when those effects were not explicitly

contemplated by the rating criteria." 26 Vet.App. at 61. The Court held that the Secretary's "failure

to include the effects of medication as a criterion to be considered under DC 7319 while including

such effects as criteria under other DCs must therefore be read as a deliberate choice." Id. at 62. 

Utilizing the cannons of construction, the Court reasoned that "[t]he Secretary has demonstrated in

other DCs that he is aware of how to include the effect of medication as a factor to be considered

when rating a particular disability." Id. Employing this reasoning to Mr. Hudgens's case, DC 5055

applies only to total knee replacements, as the Secretary has demonstrated in other parts of § 4.71(a)

that he is aware of how to include partial joint replacements as part of disability rating criteria in

other parts of § 4.71(a). See Heino v. Shinseki, 683 F.3d 1372, 1379 (Fed. Cir. 2012) ("It is well

settled that '[w]here Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts intentionally and

purportedly in the disparate inclusion or exclusion.'" (quotingRussello v. United States, 464 U.S. 16,

23 (1983))). Accordingly, the plain language of the regulation and its place in the overall regulatory

scheme make clear that DC 5055 is intended to apply to total knee replacements. 

4

Generally, if the regulation's language makes its meaning clear, "that is the end of the matter."

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (quotingChevron U.S.A. Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). Because it is clear from the regulatory language

that partial knee replacements are not included in DC 5055, the Court need not address the parties'

arguments regarding whether the Secretary's currently offered regulatory interpretation represents

his considered view on the matter, see Mason v. Shinseki, 743 F.3d 1370 (Fed. Cir. 2014), or whether

the Court may rely on nonprecedential Board decisions when making this determination, but cf.

Lynch v. Gober, 11 Vet.App. 22, 27 (1997) ("It is well established that [Board] decisions are of no

precendetial value before the [Board] or this Court."); 38 C.F.R. § 20.1303 (2013) (providing that

"previously issued Board decisions will be considered binding only with regard to the specific case

decided").

 This interpretation is not contrary to the Supreme Court's mandate that"interpretive doubt is to be resolved 4

in the veteran's favor." See Brown v. Gardner, 513 U.S. 115, 117-19 (1994). Rather, the Court holds that, here, there

is simply no ambiguity to resolve. 

5
Indeed, although our dissenting colleague struggles mightily to do so, he cannot conjure

ambiguity in DC 5055 when there simply is none. See Good Samaritan Hosp., supra; see also Tropf

v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) (noting that "a statute is ambiguous only when the

application of the ordinary meaning of words and rules of construction to the plain language of the

regulation fails to answer the question at issue") (citing Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044,

1047 (D.C. Cir. 1997) (ambiguity is a conclusion reached when the question presented is not

answered "at the level of literal language")). Moreover, though Mr. Hudgens and the dissent note

that there are 11 Board decisions that rate partial knee replacements under DC 5055, assuming we

can consider such decisions for their proffered purpose —the majority of which the Court notes do 5

not appear in the record of proceedings before the Court, see generally Kyhn v. Shinseki, 716 F.3d

572, 578 (Fed. Cir. 2013) (holding that this Court is prohibited from considering evidence that was

not in the record before the Board and engaging in factfinding in the first instance)—it is "well

established that the unchallenged historical practice of the Secretary is not evidence that the practice

is correct." Tropf, 20 Vet.App. at 321 n.1 (citing Brown, 513 U.S. at 112 ("'The length of

regulations' unscrutinized and unscrutinizable existence' [does] not alone . . . enhance any claim to

deference." (quoting Gardner v. Brown, 5 F.3d 1456, 1463-64 (Fed. Cir. 1993))); See also Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 399-400 (2008) (holding that an agency's interpretation

expressed its considered view when the relevant interpretive statement had been published in an

Contrary to the dissent's suggestions otherwise, the Board is not the body tasked with interpreting regulations 5

on the Secretary's behalf. Rather, Congress was unequivocally clear that the Board is to be bound by "regulations by

the Department, instructions of the Secretary, and the precedential opinions of the chieflegal officer of the Department."

See 38 U.S.C. § 7104(c); see also 38 C.F.R. § 20.1303 (providing that "previously issued Board decisions will be

considered binding only with regard to the specific case decided."); see also 57 Fed. Reg. 4088, 4103 (Feb. 3, 1992)

(noting the ex parte nature of Board proceedings and explaining that "[q]uestions of fairness would arise by, in effect,

making a [Board] decision precedential when the Department has no opportunity to present and defend its position in

the proceeding. Further, VA may not appeal a [Board] decision to the [Court]. . . . [U]niformity will be achieved on

important questions through precedent decisions of the United States Court of Veterans Appeals."). Stated otherwise,

the Secretary is tasked with establishing VA policy; the Board is tasked with following such established policy. See

38 U.S.C. § 20.1303 (providing that although "prior decisions in other appeals may be considered in a case," the Board

is not bound by these decisions and must still decide a case "on the basis of the individual facts of the case in light of

applicable procedure and substantive law"). 

6
agency interpretive manual for several years, even though implementation of the interpretation had

been "uneven"). 

6

2. Partial Knee Replacements Rated by Analogy

Although the Board did not err in determining that the plain language of DC 5055 applies

to total knee prostheses, remand is nonetheless warranted for the Board to adequately address

whether Mr. Hudgens's partial knee replacement should be rated by analogy under DC 5055, which

contemplates symptomatology including weakness, pain, and limitation of motion, or under another

DC. When the Secretary's regulations do not provide DCs for specific disorders, VA may evaluate

those conditions under codes for similar or analogous disorders. Lendenmann v. Principi, 3

Vet.App. 345, 351 (1992) (citing 38 C.F.R. § 4.20). In determining whether an unlisted condition

should be rated by analogy, the Board should address (1) whether the "functions affected" by the

ailments are analogous; (2) whether the "anatomical localization" of the ailments is analogous; and

(3) whether the "symptomatology" of the ailments is analogous. Id. 

In this case, the Board's decision addresses none of the factors for rating analogous

conditions, even though Mr. Hudgens specifically asserted that his partial knee replacement should

be rated by analogy under DC 5055. Record (R.) at 11 ("The Veteran argues that his November 2003

surgery was 'analogous' to total knee replacement, and that he is entitled to a 30 percent 'minimum'

rating under . . . [DC] 5055."); see Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board must

consider and discuss all applicable provisions of law and regulation where they aremade "potentially

applicable through the assertions and issues raised in the record"). The Board's failure to adequately

address Mr. Hudgens's analogy argument renders its statement of reasons or bases inadequate and

warrants remand. Id.; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate

"where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons

or bases for its determinations, or where the record is otherwise inadequate"); Allday v. Brown, 7

Vet.App. 517, 527 (1995) (Board's statement "must be adequate to enable a claimant to understand

the precise basis for the Board's decision, as well as to facilitate review in this Court"). 

 In placing substantial weight on the fact that the Secretary has not taken any action with respect to these 11 6

Board decisions, the dissent seems to do no more than invite the Secretary to initiate clear and unmistakable error

proceedings in cases not currently before the Court. We, however, extend no such invitation. 

7
B. Rating Reduction

As the parties agree, the Board erred in upholding the reduction of Mr. Hudgens's 10% rating

for right knee instability. The Board found that the reduction was warranted because there was no

evidence of knee instability, but the record includes evidence that, during the relevant period, Mr.

Hudgens's knees buckled and gave out (R. at 526), and dislocated on extension (R. at 700). The

Board failed to address this favorable evidence. Gutierrez v. Principi, 19 Vet.App. 1, 9 (2004)

(Board's reasoning flawed when it fails to discuss adequately evidence in support of claim).

Accordingly, its statement of reasons or bases is inadequate, and its specific finding of no evidence

of knee instability is clearly erroneous. Id.; see also Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en

banc) (Court reviews findings of fact under the "clearly erroneous" standard of review); Gilbert v.

Derwinski, 1 Vet.App. 49, 52 (1990) ('"A finding is "clearly erroneous" when although there is

evidence to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed."'(quotingUnited States v. U.S. Gypsum Co., 333 U.S.

364, 395 (1948))). Although the Secretary argues for remand, reversal is the properremedy as "VA's

failure to observe applicable law and consider all relevant evidence renders reduction or severance

decisions . . . 'void ab initio.'" King v. Shinseki, 26 Vet.App. 484, 492 (2014); Schafrath, 1 Vet.App.

at 596 (holding that the Board provided inadequate reasons or bases for its decision to uphold the

reduction of the appellant's rating, and reversing the Board decision and remanding the case "with

instructions that [the] appellant's disability rating . . . be reinstated" because it was "a reduction case,

not an increase case"). Accordingly the Board's decision to uphold the rating reduction will be

reversed and this matter remanded with orders to reinstate the previous rating. Id.

C. Increased Rating

Mr. Hudgens argues that the Board erred in not addressing whether a higher disability rating

was warranted under DC 5258 ("Cartilage, semilunar, dislocated, with frequent episodes of 'locking,'

pain, and effusion into the joint"), when the issue was raised by evidence of knee dislocation,

swelling, and pain. The Secretary disagrees that the Board should have applied DC 5258 because

there is no evidence of dislocated cartilage. However, as Secretary concedes, remand is warranted

for the Board to discuss whether a higher disability rating was warranted under DC 5259 ("Cartilage,

semilunar, removal of, symptomatic"), which applies when there are symptoms associated with the

8
removal of semilunar cartilage. See Schafrath, 1 Vet.App. at 593 (Board must discuss all regulations

reasonably raised by the evidence). Although the Board mentioned DC 5259, it 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." DC 5259. The Board's failure to do so renders its

statement of reasons or bases inadequate and warrants remand. Id. On remand, Mr. Hudgens may

raise, and the Board must address, his argument regarding the applicability of DC 5258, as well as

any other argument or evidence offered in support of the remanded matter. See Kay v. Principi,

16 Vet.App. 529, 534 (2002). 

IV. CONCLUSION

Upon consideration of the foregoing, that part of the Board's December 26, 2012, decision

that (1) denied a disability rating greater than 10% for degenerative joint disease of the right knee

with accompanying limitation of extension prior to November 25, 2009, and (2) denied a disability

rating greater than 10% for instability of the right knee prior to November 22, 2008 is SET ASIDE,

and the matter REMANDED for further adjudication. That part of the Board's decision upholding

the reduction of Mr. Hudgens's 10% disability rating for right knee instability from November 22,

2008, to November 24, 2009, is REVERSED, and the matter is REMANDED for the Board to

reinstate the Mr. Hudgens's 10% rating effective November 22, 2008.

KASOLD, Chief Judge, dissenting in part and concurring in part:

I respectfully dissent from the majority's decision that 38 C.F.R. § 4.71a, DC 5055 (2013),

does not apply to partial knee replacements. That DC 5055 is anything but clear in its scope is

reflected by the fact that it does not answer the question as to whether it covers only total knee

replacements or whether it also covers partial knee replacements. See, e.g., Bell Atl. Tel. Cos. v.

FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997) (noting that ambiguity is a conclusion reached when the

question presented is not answered "at the level of literal language"). Ambiguity also is reflected by

the fact the appellant has submitted 11 Board decisions rating partial knee replacements under DC

5055, as well as the fact that the Secretary stated at oral argument that he could identify only 3 Board

9
decisions finding that DC 5055 applies only to total knee replacements, with the Board decision now

on appeal being 1 of the 3. 

7

The lack of clarity in DC 5055 is confirmed by the fact that the Secretary has informed the

Court that no action is being taken to modify the 11 purportedly errant Board decisions based on

clear and unmistakable error, or because they are otherwise clearly erroneous, which says much

about the Secretary's litigation position – and the majority's decision – that the scope of DC 5055 is

clear on its face. Succinctly stated, (1) DC 5055 addresses "Knee replacement (prosthesis)" and

nothing in the DC restricts it to a total knee replacement as opposed to a partial knee replacement,

and (2) the Board has interpreted DC 5055 to address full knee replacements at times, and partial

knee replacements at other times, with the more consistent interpretation being that DC 5055 applies

to partial knee replacements!

The Board renders the final decision for the Secretary on all questions in matters affecting

the provision of benefits, subject only to the statutes governing such benefits and related judicial

rulings, as well as VA regulations, instructions of the Secretary, or VA General Counsel opinions. 

See 38 U.S.C. § 7104(c). Here, there is no specific statute or judicial ruling (until today) on the issue

before the Court. There is no VA General Counsel opinion or instruction of the Secretary. We have

only a regulation written many, many years ago, and at least 11 Board decisions that have interpreted

 The majority's concern that the Board decisions are not in the record and their citation to Kyhn v. Shinseki,

7

716 F.3d 572, 578 (Fed. Cir. 2013), which held that the Court cannot find facts in the first instance, is perplexing. 

Because DC 5055 addresses knee replacements without any reference to it being limited to full knee replacements, we

can and should take judicial notice how the Board has interpreted this DC. See Smith v. Derwinski, 1 Vet.App. 235, 238

(1991) (Court "may take judicial notice of facts not subject to reasonable dispute"). To ignore the Board's interpretations

is to ignore the history of interpretation of this DC and to foster inconsistent and inequitable application. The majority's

citations to Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) and Tropf v. Nicholson, 20 Vet.App. 317 (2006)

are inapposite. Holowecki involved some degree of inconsistency in over 175,000 inquiries per year, while this case

involves 14 reported Board decisions interpreting the regulation in question, and the majority of those are contrary to

the Secretary's interpretation preferred in this litigation. Tropf noted that the "unchallenged historical practice of the

Secretary is not evidence that the practice is 'correct'," 20 Vet. App. at 321, n.1 (emphasis added), but that is in the

context of a regulation that does not support that practice. Despite the majority's efforts, they cannot create clarity where

clarity does not exist; the regulation (DC 5055) in question in this case is decidedly unclear in its scope as it could cover

full or partial knee replacements, and the Board's varied interpretations only support that conclusion. The Board

decisions reflect that there is no consistent interpretation of DC 5055. Given the lack of any consistent interpretation,

we should apply Brown v. Gardner, 513 U.S. 115, 118 (1994), as noted in the text of my dissent – which would then

render the "correct" interpretation, until and unless the DC properly is amended thereafter. 

10
DC 5055 to cover partial knee replacements and only 3 that have interpreted it as limited solely to

total knee replacements.8

Under such circumstances, there is no room for any finding that the regulation clearly is

limited to total knee replacements, and there should be no room for any ruling that permits an

inequitable application of DC 5055 dependant on the whim of the particular veterans law judge

rendering a Board decision, particularly when the Secretary does not intend to correct what would

be clearly erroneous decisions – action he presumably would take if the regulation were clearly

limited to total knee replacements, as purported by the Secretary in this litigation. See 38 U.S.C. 9

§ 7111 (Board may revise decisions based on clear and unmistakable error (CUE)); § 7103(c)

(essentially the same); § 5109A (Secretary may revise Board decisions based on CUE). 

Although deference generally is due the Secretary on the interpretation of his own

regulations, the Board decisions reflect that the Secretary does not have a consistent interpretation. 

See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (holding

that in the absence of congressional intent, a court must defer to an agency's interpretation of a

statute as long as the interpretation is based on a permissible construction of the statute); see also

Auer v. Robbins, 519 U.S. 452, 461-62 (1997) (noting Secretary's litigation position may not be a

 The majority's view that the Board does not interpret regulations is wholly inconsistent with our precedent, 8

and, contrary to their assertions, not supported by the statutes and regulations governing the jurisdiction of the Board. 

See 38 U.S.C. § 7104 (Board decisions are rendered on applicable provisions of law and regulation); see, e.g., Mariano

v. Principi, 17 Vet.App. 305, 318 (2003) (remanding for Board to address the two possible interpretations of DC 5201,

noting that "it is preferable for the Secretary to undertake the initial consideration of this matter"); Hatlestad v.

Derwinski, 1 Vet.App. 164, 167 (1991) (remanding for Board to address the interrelationship of five regulatory

provisions and resolve apparent conflictsin the language of those provisions); see also Bellezza v Principi, 16 Vet.App.

145, 148 (2002) (reviewing whether Board's interpretation of regulation was reasonable); Webb v. Brown, 7 Vet.App.

122, 124 (1994) (remanding for Board to consider interpretation of VA regulations in light of other regulations and

statutory provisions); Payne v. Derwinski, 1 Vet.App. 85, 87 (1990)(same). The majority appears to confuse the concept

that Board decisions are not precedential with the fact that the Board does indeed interpret regulations, and the fact that

those interpretations represent the Secretary's view until and unless (1) the Secretary clarifies the regulation or issues an

instruction, see 38 U.S.C. § 7104(c), (2) the VA General Counsel renders a contrary opinion, id., or (3) the Board's

interpretation is overturned judicially, see 38 U.S.C. § 7261 (court's scope of review).

My colleagues misconstrue the intent behind my noting that the Secretary has indicated he will not take any

9

action to correct Board decisions that have misapplied DC 5055, as he now states it should be interpreted. I note the

inaction not to invite such action, but to highlight the fact that the very ambiguity of DC 5055 precludes such action.

Cf. Fugo v. Brown, 6 Vet.App. 40, 43 (1993) ("CUE is a very specific and rare kind of 'error.' It is the kind of error, of

fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds

could not differ, that the result would have been manifestly different but for the error." (emphasis in original)).

11
" 'post hoc rationalization' advanced by an agency seeking to defend past agency action against

attack." (internal citations omitted)). 

In myopinion, this is when Gardnertrumps Chevron with regard to regulatoryinterpretation.

See Brown v. Gardner, 513 U.S. 115, 118 (1994) ("[I]nterpretive doubt is to be resolved in the

veteran's favor . . . ."); see also Heino v. Shinseki, 683 F.3d 1372, 1379 n.8 (Fed. Cir. 2012) (noting

lack of clarity on how Gardnerfits with Chevron, and comparing "Nielson v. Shinseki, 607 F.3d 802,

808 (Fed. Cir. 2010) (stating that the [Gardner] canon 'is only applicable after other interpretive

guidelines have been exhausted, including Chevron'), with Disabled Am. Veterans v. Gober, 234

F.3d 682, 692, 694 (Fed. Cir. 2000) (stating that the [Gardner] canon 'modif[ies] the traditional

Chevron analysis')"); Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (noting that the canons

of statutory interpretation apply to interpreting regulations). 

Succinctly stated, in the face of inconsistent interpretations of a regulation, there is no basis

to defer to the Secretary's proffered interpretation, see Thomas Jefferson Univ. v. Shalala, 512 U.S.

504, 515 (1994) ("[A]n agency's interpretation of a statute or regulation that conflicts with a prior

interpretation is 'entitled to considerably less deference' than a consistently held agency view . . . .")

(emphasis added) (internal quotation marks omitted) (quoting INS v. Cardoza-Fonseca, 480 U.S.

421, 446 n.30 (1987)); see also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168

(2012) (noting "[o]ur practice of deferring to an agency's interpretation of its own ambiguous

regulations . . . creates a risk that agencies will promulgate vague and open-ended regulations that

they can later interpret as they see fit"), and ambiguity should be interpreted in the light most

favorable to the veteran, see Gardner and Smith, both supra.

Although the Secretary points to an unsigned bulletin in support of his interpretation, this

bulletin does not constitute a General Counsel opinion or instruction to the Board from the Secretary;

accordingly, the bulletin is not binding on the Board, which renders final decisions for the Secretary. 

See 38 U.S.C. § 7104 (a), (c).

As noted above, DC 5055 is indeed ambiguous; accordingly, I would applyGardner, reverse

the reduction in disability rating, and remand the matter for readjudication consistent therewith. I

further note that because our panel decisions are precedential, such a holding would be binding on

the Secretary until and unless he undertook the process necessary for revising his regulation. See

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Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1331-32 (Fed.

Cir. 2013) (noting that in order to change a regulation after a precedential Court decision, Secretary

must follow notice-and-comment requirements); Suozzi v. Brown, 10 Vet.App. 307, 311 (1997)

("VA is bound to follow the controlling precedential decisions of this Court.").

With regard to the remainder of the majority decision, I note that even when DC 5055

applies, the Board should consider whether rating by analogy to another DC would provide a higher

disability rating, as might be the case here, where DC 5055 appears to overlap with 38 C.F.R. §

4.71a, DCs 5256-5263 (2013). Accordingly, I agreewith that part of the majoritydecision, including

the reversal of the reduced rating, and the remand.

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