Huerta: DC 5000 and Chronic Osteomyelitis (bone infection)

Huerta v. McDonough, Opinion Number 19-280, was decided April 27, 2021 involved an interpretation of DC 5000 which deals with osteomyeltitis (a bone infection).

The Court considered DC 5000, stating:

We start with the text of DC 5000, which compensates for osteomyelitis that is acute ("having a short and relatively severe course"), chronic ("persisting over a long period of time"), or subacute ("somewhat acute; between acute and chronic").  Five disability ratings are available under DC 5000: 100%, 60%, 30%, 20%, and 10%. And for each of the five ratings, DC 5000 provides the following rating criteria for "[o]steomyelitis, acute, subacute, and chronic,":

 

100%: "Of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms."

60%: "Frequent episodes, with constitutional symptoms."

 

30%: "With definite involucrum or sequestrum, with or without discharging sinus."

 

20%: "With discharging sinus or other evidence of active infection within the past 5 years."

 

10%: "Inactive, following repeated episodes, without evidence of active infection in the past 5 years." 38 C.F.R. § 4.71a (emphasis added).

Id. at *5.   The Secretary argued the overall structure of DC 5000 employs a "graduated" scheme whereby osteomyelitis is rated based upon active or inactive status.  Id. at *5.  Under the Secretary’s reading,

all inactive cases are funneled into either the 10% or 20% rating criteria, with the difference between the 10% and 20% criteria hinging on how long it has been since the veteran last exhibited evidence of infection.

Id. at *5-6.  The Court focused on the plain meaning of the code and determined: 

The Secretary's proposed interpretation of DC 5000 is less convincing. The structure of DC 5000 yields no conclusive markers to show how the rating criteria for the various disability ratings stand in relation with each other. The Secretary posits that DC 5000 bears a "graduated" structure and so functions similarly to a "successive" rating, whereby the criteria for each rating are cumulative, incorporating the criteria of each lower rating. See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). In successive ratings, the evaluation of each higher rating includes the criteria of each lower such that "if a component is not met at any one level, the veteran could only be rated at the level that did not require the missing component." Tatum v. Shinseki, 23 Vet.App. 152, 156 (2009). The difficulty with this line of reasoning is that DC 5000 bears no indication of a successive or cumulative in nature, which it would have to have for the Secretary's interpretation to hold. It's not precisely clear what the Secretary means by "graduated," but the word suggests a structure in which higher ratings incorporate the criteria of lower ratings without formally requiring that to justify a higher rating a veteran must establish each criterion for lower ratings. However, DC 5000 includes no implied elements, and thus the Secretary's graduated-structure argument is critically flawed. DC 5000 would have to be successive in express terms for the requirement of active infection within a given period to apply beyond the 20% rating. Short of this, it's not clear how DC 8 5000 differs from any other DC where a veteran must do no more than present a disability picture that most nearly approximates a specific rating, even where a disability might not manifest all the criteria in that rating.

Id. at *7-8.

The Court then stated:

Ultimately, the Court finds the plain language for assigning a 100% disability rating under DC 5000 clear and unambiguous. Specifically, the plain language of DC 5000 establishes a diagnosis of chronic osteomyelitis of the pelvis as a sufficient basis to warrant a 100% rating. "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). This observation applies no less to administrative agencies and their regulations. To the extent that VA has fallen victim to its own inartful drafting, VA also has the wherewithal to revise the DC.

Id. at *8.

Judge Toth dissented and writing the plain meaning of the text argument of the majority was well-reasoned but focusing on the fact the code seemed to require an active disease process for a 100% criteria.   He explained: “I can't read DC 5000 as requiring a total rating based solely on a historic diagnosis of pelvic osteomyelitis without any present symptoms or functional impairments. This doesn't square with the basic principle in veterans law that higher ratings correspond to greater disability.”  Id. at *8.

Opinion by Judge Pietsch and joined by Judge Allen.  Dissent by Judge Toth.

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