Cousins: Spondylolysis, CUE, Defects and Degenerative Conditions

Cousins v. Wilkie, Case Number 2017-1971, decided September 28, 2018 is a Federal Circuit Court of Appeals case that addressed whether a 1950s RO decision finding the veteran’s lumbar condition should not be service connected contained clear and unmistakable error.

The veteran had not back problems on his September 1951 entrance examination and in fact hurt his back in 1952 resulting in diagnosis of a back strain and restricted duty.  A 1953 x-ray showed spondylolysis.  After discharge, the veteran sought service connection for his back, but the claim was denied because “Service records show that, on 5-9-52, the veteran had a pain in the back “catching in nature.” Examination showed a mild back strain. There is no further evidence of treatment or complaint of this condition. It is  vonsidered to have been acute, without residuals”  Id at *3. 

Finally, a 2013 decision granted service connection and granted an effective date as the date of application.  The veteran argued an earlier date of discharge effective date was owed because the 1954 decision contained CUE.  The Board

acknowledged that the 1954 decision contains no reference to, or discussion of, the fact that Mr. Cousin was placed on a permanent physical profile for his back in March 1953, but noted under then-existing precedent the RO was not required to give a detailed explanation of its findings. Citing the 1946 Schedule for Rating Disabilities (“1946 schedule”), the Board found that because Mr. Cousin’s 1953 x-ray revealed evidence of a “defect,” the RO “might well have concluded that the condition” was a noncompensable “congenital defect.”

Id. at *3.  The Veterans Court affirmed the Board decision saying it offered a plausible explanation for discounting the 1953 records and that the RO in 1954 did not have to fully explain its findings.

Essentially, the veteran argued the Board and Veterans Court did not apply the proper legal standard for determining whether a condition is a non-compensable “defect” in

crediting the RO’s 1954 decision.  The veteran argued his medical records demonstrated he had a back condition called spondylolysis, which, based on undisputed facts, is a “disease” capable of progression and not a “defect” for purposes of compensation under then-existing law.  Id. at *5.  The Federal Circuit pointed out that the Secretary conceded the veteran was diagnosed with spondylolysis and that it is a degenerative disease.  Id. at *6-7.  The Court then stated

the only way the 1954 RO could have found against Mr. Cousin is if it concluded the legal definition of “defect” under the 1946 schedule included degenerative conditions. That would have been error as a matter of law. At no point has the government suggested that the legal definition of “defect” could include a degenerative condition. To the contrary, the Department of Veterans Affairs and the government have argued that a “defect” under the regulation does not include degenerative conditions.

Id. at *7.

The Court thus concluded

we are not retroactively applying this law; rather, we are interpreting the 1946 regulation in effect at the time. Whether a defect under the regulation can include a degenerative condition is a question of law over which we have jurisdiction. We conclude that “defect” is properly construed as excluding degenerative conditions, and we do not understand the government to contend otherwise in this case.

Id.  The Court then stated based on the proper legal interpretation of defect and the concessions by the Secretary, the RO could not determined spondylolysis was a defect and thus the 1954 decision as a matter of law contained clear and unmistakable error.  Id. *8.

The veteran sought for a judicial determination defining sedentary work the same as a Department of Labor publication.  The Court refused, reasoning that sedentary work is absent from Section 4.16 and thus not necessarily a part of a proper TDIU analysis.  Id. at *10.

The Court expressed sympathy that the decision did not offer a clear cut resolution by refusing to define the term sedentary work.  Instead, it noted the definition of sedentary work must be discerned on a case by cases basis from the medical and lay evidence presented and in light of the veteran’s education, training, and work history.

The Court also explicitly stated the Secretary could use notice and comment rule making to amend Section 4.16 to include and define the term sedentary work or veterans and veteran advocates could petition the VA for rulemaking to do the same.  However, I suspect the VA and advocates will let the matter alone.  My reading is that a grant or denial of TDIU should consider all evidence, including the veteran’s work history and education.  In other words, a holistic approach to consideration of TDIU (as required) does not specifically need the term sedentary work to be defined.

This is an early decision by Judge Toth and frankly demonstrates a willingness to refuse both the Secretary and veteran advocates what they want.  It likely reveals a judicial temperament that is tough but clear minded and deferential to the language of the law.

This is an unusual case in that rather than remanding for further development, it found as a matter of law that CUE existed. 

The decision was by Judge Moore and joined in by Judges Schall and Wallach.

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