Every once in a while the stars align at the CAVC and incredible combinations of judges on a panel coalesce into a great decision. Throw in a reverse and remand to “Make it so, Numbah One.” and you have the stuff legends (and great precedence) are made of. Here we have one of those conundrums wrapped in a paradox. At which point does a lower extremity gain designation as ‘loss of, or loss of use of”. Fasten your safety belts and keep your upper extremities inside the vehicle at all times. This is cutting edge precedence for the ages-old SMC L argument about just how disabled you have to be prior to the magic incantation of ‘loss of use’.
Take a gander at Jensen here http://www.veteranslawlibrary.com/files/CAVC_cases/2017/Jensen_15-4788.pdf
Some will look at Jensen as a purely precedential decision on Specially Adapted Housing (SAH) when in reality this is the newest razor-edge cutting case for a better definition of loss of use. The long, detailed legal path from the earliest days of SMC and SAH build a solid case of cites here we can now use to obtain loss of use of lower (or upper) extremities. I presently have two different claim appeals in this matter where VA is recalcitrant to grant an L for loss of use. One involves a mixed etiology of two diseases (brain anoxia and Parkinson’s ) superimposed on one another with neither apparently sufficient to merit the leap to R1 or R2. It’s nothing more than the VA’s setup straw man argument over pyramiding-i.e. “Well, if we give you 60% for thaaaaat, then we’d have to reduce the Parkinson’s because they duplicate the symptoms”. The truer argument is the enormity of both conditions catapults the Vet into R1 or R2 anyway.
The other SMC is a muscular dystrophy claim where the Veteran is wearing leg braces, Canadian crutches and inhabiting a wheelchair 95% of the time to perambulate but is still short of the magic loss of use metric in VA’s eyes since he can still waddle (stagger?) a short distance (less than 30 ft.). Remember, I once said VA employees’ ancestors were probably members in good standing of the Spanish Inquisition and invented some of those nefarious SM torture devices we see in those Toy stores. Here, the VA Secretary, in the persona of the Commander of the OGC, attempts to prestidigitate the words ‘such as’ into miraculous new meanings depending on which part of Part Three 38 CFR you are reading from.
Here’s the pertinent passage in 38 USC §2101
(a)Acquisition of Housing With Special Features.—
Subject to paragraphs (3) and (4), the Secretary may assist a disabled veteran described in paragraph (2) in acquiring a suitable housing unit with special fixtures or movable facilities made necessary by the nature of the veteran’s disability, and necessary land therefor.
(B)The criteria described in this subparagraph are as follows:
(i) The disability is due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.
The essential position taken by the Board and the Secretary is that the phrase “such as” in section 2101(a)(2)(B)(i) means “and.” In the Board’s view, had Congress been more clear, it would have written that a veteran is eligible for SAH if his permanent disability produces (1) loss, or loss of use of both lower extremities; AND (2) precludes locomotion without the aid of braces, crutches, canes, or a wheelchair. The appellant asserts that the Board erred by ignoring the plain meaning of the phrase “such as.” He argues that section 2101(a)(2)(B)(i) clearly conveys that a “loss of use” exists if a veteran’s locomotion is precluded without the aid of braces, crutches, canes, or a wheelchair.
This is the ages old VA semantics game of disjunction and conjunction. VA would just as soon banish the disjunctive ‘or’ from 38 CFR and end this nonsense once and for all. That’s what this one is in a nutshell. It is what I, the Secretary, interpret it to say… today… in this particular appeal anyway. Pssssst! Mary Ann. We can do that, can’t we?
The most apparent reason that § 3.350(a)(2)(i) does not define the terms found in section 2101(a)(2)(B)(i) is that those two provisions apply to different abnormalities. Section 2101(a)(2)(B)(i) sets the standard for awarding SAH to a veteran suffering from a loss of use of lower extremities. Section 3.350(a)(2)(i) defines loss of use of a foot. The term “lower extremity” may include the foot but also the entirety of the “lower limb.” DORLAND’S ILLUSTRATED MEDICALDICTIONARY (DORLAND’S) 665 (32d ed. 2012).
Here, we reach the meat of the Court’s disgust with the Secretary’s shape-shifting view of loss of use. Remember, the Secretary can alter his regulations but he is not at liberty to reinvent that which Congress created -i.e. 38 USC:
The provisions discussed above reveal that the Secretary’s proposed interpretation of
section 2101(a)(2)(B)(i) is the product of a rhetorical sleight of hand. He asks the Court to
determine that the term “loss of use” is severable from the words “lower extremities” in section 2101(a)(2)(B)(i) but not from “foot” in section 1114(l) and § 3.350(a)(2)(i), state that “loss of use of . . . foot” is the same as “loss of use” in section 2101(a)(2)(B)(i), and reinsert “both lower extremities.” The Secretary’s interpretation alters the statute rather than clarifies it…
If the Court were to define “loss of use” in the SAH context in the manner that the Secretary now suggests, it would in effect reinsert into section 2101(a)(2)(B)(i) a diagnostic requirement that Congress wrote out of that provision in 1959.
But when did that ever bother the VA? Remember how I always refer to this business or ratings as the VA 3-card Monte set up? The Court has now refined the concept as “rhetorical sleight of hand”. I reckon that’s just Judge Coral’s fancy way of trying not to call a spade a spade.
All of you VA litigators out there sit up and take notice. There’s a cornucopia of useful cites in this panel decision to use for SMC L just to begin with. Watch for the Secretary to immediately publish some new definitions in the Fed. Register soon to erase these mistakes. Fortunately he cannot strike down the earlier Congressional machinations leading up to §2101 which address the thinking process that gave birth to the concept of SAH. Think Muscular Dystrophy claims, spinal cord, use of locomotion devices, etc. The camel’s nose is now under the tent.
Here’s the meat of this:
“Where a court concludes that Chevron deference is inapplicable, the court proceeds with the task of statutory interpretation guided by the principles of Skidmore v. Swift & Co., 323 U.S. 134 (1944).” Cook, 28 Vet.App. at 340. Pursuant to Skidmore, the Court “may properly resort for guidance” to the Secretary’s arguments. 323 U.S. at 140. “The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”
Merry Christmas from the crew at 625 Native American Ave. NW. Our lives just keep getting better every day the Court is in session. Purdy soon it’ll be getting nigh on as easy as going catfish fishin’ with DuPont Spinners.