Duran: Regulatory Interpretation, Agency Deference, and Pro-Veteran Canon

Duran v. McDonough, Case Number 20-5759, decided July 20, 2023 involves how to properly rate Parkinson’s disease. 

In this case, the Board replaced a 30% rating the veteran had been receiving under DC 8004 with a combined 50% rating for three distinct Parkinson's manifestations evaluated under different DCs.  These three ratings accounted for only some of his confirmed Parkinson's manifestations.  The Court noted “This appeal raises a narrow question about the proper reading of DC 8004: When some manifestations of Parkinson's disease are rated as compensable and total more than 30% under DCs other than DC 8004, but some manifestations remain that are not rated as compensable, do the ratings under the other DCs replace or combine with DC 8004's minimum 30% rating?” Id. at *1-2.

The veteran argued “compensable ratings under other DCs should be added to DC 8004's minimum 30% rating so long as additional ascertainable Parkinson's manifestations exist that are not otherwise compensable under the rating schedule. Based on the relevant text and regulatory context and the broader policies governing VA's rating scheme, we agree with [the veteran] on the regulation's plain meaning.”  Id. at *2.

Judge Toth wrote a detailed decision that focused on the plain reading of the regulation and focusing on the language of the regulation found:

“By virtue of having a diagnosis of Parkinson's disease with at least one ascertainable manifestation, Mr. Duran is entitled to a minimum 30% under DC 8004. Even when ascertainable manifestation ratings under other DCs combine for a total rating in excess of 30%, the basis for the minimum rating under DC 8004 remains as long as there is at least one ascertainable manifestation of Parkinson's disease that is not compensable under any other DC.  Thus, when VA assigns compensable ratings for Parkinson's manifestations that total more than 30% under DCs other than DC 8004, those other ratings do not replace the minimum 30% rating under DC 8004 provided that some manifestations remain that are not rated as compensable.”

Id. at *7.

As to this case, it then explained:

“Here, the Board found that Mr. Duran's Parkinson's disease manifested itself in at least eight ways. It concluded that three of those manifestations were entitled to separate compensable ratings that totaled 50% and that two were already compensated as parts of other conditions. That left three remaining manifestations that were not compensable under other DCs pertaining to the bodily systems involved: constipation, a chewing and swallowing condition, and a speech condition. Even in isolation, any of these three ascertainable manifestations warranted the minimum 30% rating under DC 8004. That means the Board should not have replaced the 30% rating under DC 8004 in this case. We therefore reverse the Board's discontinuance of that rating.”

Id. at *8.

Judge Jaquith wrote a concurring opinion to advance his belief that the pro-veteran canon applies to this case.  He argued that even if the preamble, DC 8004 and the note with $.25(b) make clear the veteran deserves separate ratings, the pro-veteran canon should still be considered because regulatory interpretation requires interpretation of words in the context and the context of the law as a whole should include the pro-veteran canon.  He argued that “the pro-veteran canon is part of the context within which we ascertain plain meaning.”  Id. at *16.

He also agreed with Judge Allen’s concurrence that even if the regulation was truly ambiguous, the Board’s decision was not owed deference because it is clear that is not the VA’s authoritative policy as to Parkinson’s disease.  Id. at *17.

Judge Allen also wrote a concurrence explaining he agreed with the result, but not the reasoning of Judge Toth.  Judge Allen wrote he believed the regulation was ambiguous and then stated “because the Secretary has not identified any official, authoritative agency position to which the Court can properly defer in terms of resolving the ambiguity before us, I would search for the best reading of the ambiguous regulation. That endeavor necessarily considers the pro-veteran canon of construction, the application of which removes any doubt here about the proper interpretation of 38 C.F.R. § 4.124a, DC 8004.”  Id. at *19-20.

Judge Allen found an ambiguity and then rejected the VA’s reliance on the Board decision itself as the source of any Kisor/Auer deference.  Id. at *22.  He also noted that the pro-veteran canon of interpretation is particularly helpful here “because both parties' interpretations of the regulatory structure are plausible.”  Id. at *23. Judge Allen then argued as to his interpretation of the pro-veteran canon that “Utilizing the pro-veteran canon to decide between two plausible interpretations does not mean the individual veteran automatically wins.  Rather, in my view, the canon means that the Court should adopt an interpretation of an ambiguous statute or regulation that is categorically favorable to veterans as a group.  There will be situations in which there is no universal pro-veteran meaning and, in such cases, the canon has no application. Here, there is no question that reading § 4.124a, DC 8004, as appellant suggests benefits all veterans seeking compensation for Parkinson's disease who manifest ascertainable but noncompensable Parkinson's residuals when VA has already assigned a separate compensable rating or ratings for Parkinson's manifestations that total more than 30% under diagnostic codes other than 8004.”

This is simply a fascinating case.  One judge ruled based solely on the plain language of the regulation whereas another found an ambiguity, but still favored the veteran.  Another, wrote a powerful concurrence essentially arguing that no regulation interpretation can occur absent rooting it in the pro-veteran canon.

I fully expect the VA to appeal this case and look forward to the Federal Circuit’s decision.  I would guess that it will be upheld and hope Judge Jaquith’s reasoning carries the day.

Decision by Judge Toth with separate concurrences by both Judge Allen and Jaquith.

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