Roby: Liquid defined in Relation to DC 7203, Auer and Skidmore Deference Applied

Roby v. Wilkie, Case Number 17-0528, decided March 19, 2019 considers the definition of liquids in relation to DC 7203.

The veteran suffers from a narrowing of the esophagus which is rated under DC 7204 or 7203.  DC 7203 provides a 30% rating for moderate severity stricture, 50% for a stricture defined as “severe, permitting liquids only” and 80% for a stricture so severe it results in “permitting passage of liquids only, with marked impairment of general health.”  The veteran is rated at 30% and sought a higher rating.

The veteran argued he was entitled to a higher rating because “his diet is limited to foods that meet the ordinary definition of liquid, including applesauce, baby food, yogurt, and mashed potatoes.”  Id. at *5. 

The Court noted:

This case primarily involves answering two questions regarding the regulatory language of DC 7203: (1) Does "permitting" and "[p]ermitting passage," as used in the 50% and 80% evaluation criteria of DC 7203, refer to passage through the esophagus or passage into the mouth and oral cavity? and (2) What does "liquids" mean as used in the 50% and 80% evaluation criteria in DC 7203?

Id. at *6.  First, the court determined DC 7203 clearly refers to the state when the substance passes through the esophagus. Therefore, the Court concludes that the meaning of "permitting" and "[p]ermitting passage" is clear from the plain language of DC 7203 and refers to passage through the esophagus.”  Id. at *7. 

Second, the Court turned to the meaning of liquid.  It determined it could not discern a plain meaning for the term liquid from the text of the regulation, structure of purpose of DC 7203 and thus it was ambiguous.  Id. at *9.  Noting “There is no indication from the plain language of DC 7203 whether the definition of liquids should be interpreted as broadly as Mr. Roby argues or as narrowly as the Secretary argues.”  Id. 

The Court then noted the Secretary’s interpretation would be afforded deference as long as it is not plainly erroneous or inconsistent with the regulation and when there

is no reason to suspect that it does not reflect fair and considered judgment on this matter.  Id.  The Court concluded deference was due.  Id. at *10.  It determined:

The Secretary's interpretation—that the ordinary definition of "liquids" does not include

foods that have a textural quality like purees, soft solids, semisolids, or chewed solids—is neither plainly erroneous nor inconsistent with DC 7203. His interpretation comports with the ordinary definition of "liquids"; is consistent with the regulatory scheme of DC 7203, which provides higher evaluations based on greater difficulty swallowing; and aligns with the aim of the regulation.

Id. at *10.  And, the Secretary's interpretation appears to reflect his fair and considered judgment.  “Notably, his interpretation is consistent with other instances when he has interpreted "liquid" as it relates to food.”  Id.

The Court then went a step further and stated:

We stress that Auer deference is not necessary to our conclusion. Even under a less

deferential standard, the Court finds the Secretary's interpretation of "liquids" persuasive.

Here, the Secretary's interpretation was based on thorough consideration and valid

reasoning and is consistent with other interpretations of "liquid." Accordingly, deference to the Secretary's interpretation is warranted.

Id. at *11 (internal citations omitted).

The veteran argued any ambiguity should be resolved in his favor, but the Court concluded without real explanation that “the Secretary's interpretation of how the term "liquids" should be applied is not plainly erroneous, is not inconsistent with the regulation, reflects his fair and considered judgment in this matter, and is consistent with prior interpretations.  Accordingly, the Court will defer to the Secretary's interpretation.  Id. at *12.

This is a textbook case dealing with the issue of agency deference.  The Court determined terms were ambiguous, but deferred to the VA’s reasoning and persuasiveness.  It is probably emblematic of the reasoning of cases in what is likely a post-Kisor v. Wilkie legal landscape.  A discussion of both Auer and Skidmore deference.  What is most troubling to me is the way the Court failed to truly grapple with the impact of Gardner and the pro-veteran interpretative canon.

Decision was drafted by Judge Bartley and joined in by Judges Schoelen and Meredith.

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