Franklin Gill v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 12-3428

FRANKLIN GILL, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued August 27, 2012 Decided October 28, 2013)

Kenneth M. Carpenter, of Topeka, Kansas, with whom R. Edward Bates, of Naperville,

Illinois, was on the brief for the appellant.

Michael J. A. Klein, with whom Will A. Gunn, General Counsel, R. Randall Campbell,

Assistant General Counsel, Leslie C. Rogall, Deputy Assistant General Counsel, all of Washington,

D.C., were on the brief for the appellee.

Before KASOLD, Chief Judge, and DAVIS and PIETSCH, Judges.

KASOLD, Chief Judge: Veteran Franklin Gill appeals through counsel that part of a

September 11, 2012, decision of the Board of Veterans' Appeals (Board) that denied entitlement to

an initial disability rating higher than 10% for his service-connected hypertension.1 Mr. Gill argues

that the record medical evidence was inadequate for Board decision because the record did not

contain examination reports recording two or more blood pressure readings on at least three different

days, which he contends is required by 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 Note (1)

(2013), to determine an appropriate disability rating. The Secretary argues that the multiple blood

pressure readings required by Note (1) apply only with regard to an initial confirmation of a

diagnosis of hypertension, and not to the assignment of a disability rating. Because this appeal

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Mr. Gill does not present any argument with respect to other matters in the Board decision. To the extent the

other matters may have been on appeal, they are abandoned and will not be addressed. See Johnson v. Shinseki,

26 Vet.App. 237, 239, 248 (2013) (en banc) (holding that "the Court need not address the Board decision with respect

to [ ] matters" that were not argued on appeal, and affirming only the Board's "decision regarding the matters before the

Court").

involves a regulatory interpretation of first impression, panel decision is warranted. See Frankel v.

Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of the decision that

is on appeal will be affirmed.

I. FACTS

On April 3, 2003, Mr. Gill filed a claim to reopen a December 1994 regional office (RO)

decision that denied service connection for hypertension. Although the RO did not reopen the claim,

the Board did so in a May 19, 2008, decision that also granted service connection. In September

2008, the RO implemented the May 2008 Board decision by (1) awarding benefits for hypertension

effective April 3, 2003, and (2) assigning a 10% disability rating for hypertension. Mr. Gill then

appealed to the Board for a higher disability rating and his claim was remanded by the Board in

February 2011 "to afford [Mr. Gill] an appropriate VA examination." Record (R.) at 118. Mr. Gill

was provided a VA examination on May 17, 2011. The examination report reflects a current blood

pressure reading of 130/652 and lists three blood pressure readings under a heading "Blood Pressure

Measurements for Established Diagnosis of Hypertension": 130/65; 126/78; 124/80.3 See R. at 222.

In the decision on appeal, the Board found that a higher disability rating was not warranted.

In doing so, the Board determined that the May 2011 examination report (1) adequately discussed

Mr. Gill's reported symptoms and blood pressure readings, and (2) substantially complied with the

February 2011 remand order. In support of its decision that a higher disability rating was not

warranted, the Board noted that Mr. Gill had numerous blood pressure readings throughout the rating

period and none of them reflected a diastolic pressure of 110 or more, or a systolic pressure of 200

or more, as required for a disability rating higher than 10%, see DC 7101 (e.g., providing a 20%

disability rating when "[d]iastolic pressure [is] predominantly 110 or more, or; systolic pressure [is]

predominantly 200 or more"). The Board also noted, inter alia, that (1) the highest blood pressure

reading in Mr. Gill's medical records reflects a diastolic pressure of 96 and a systolic pressure of 150,

and further noted that even these readings appeared to be abnormally high when compared with the

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The top number represents the systolic pressure measurement and the bottom the diastolic pressure.

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It appears that these measurements were taken the date of the examination.

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numerous other readings in the record, and (2) Mr. Gill had not reported any readings greater than

those reflected in his medical records.

II. THE PARTIES' ARGUMENTS

Mr. Gill argues that once the February 2011 Board ordered a hypertension examination the

Secretary was required to give him an examination that included two or more blood pressure

readings on at least three different days, as he contends is required by DC 7101 Note (1). More

specifically, he argues that the plain wording of Note (1) – along with its location in the rating

schedule – requires that these readings be taken before a disability rating for hypertension can be

assigned. He further argues that, to the extent there may be ambiguity in Note (1), the Secretary's

comments in the December 11, 1997, Agency Final Rule for the "Schedule for Rating Disabilities;

The Cardiovascular System," 62 Fed. Reg. 65,207-01 (Dec. 11, 1997), reflect the Secretary's

contemporaneous interpretation that two or more blood pressure readings are to be taken on at least

three different days to warrant assignment of a disability rating for hypertension.

Mr. Gill further argues that, because the May 2011 examination did not comport with the

requirements of his view of Note (1), the Secretary violated his duty to provide an adequate

examination. See Barr v. Nicholson, 21 Vet.App. 303, 12 (2007) (when Secretary undertakes to

provide a medical examination, even if not required by law, Board must ensure the examination is

adequate).

The Secretary argues that the plain language of Note (1) applies only to the initial

confirmation of a diagnosis of hypertension, not to the assignment of a disability rating. He contends

that the location of Note (1) in the rating schedule is not dispositive because numerous other DCs

provide specific definitions for diagnoses. He further contends that, assuming Note (1) is deemed

ambiguous, his December 1997 explanation of the change in regulation, see 62 Fed. Reg. 65,207-01,

and VA Form 21-0960A-3 (a disability benefits questionnaire (DBQ) used for hypertension) support

the conclusion that Note (1) applies only to confirmation of a diagnosis of hypertension and not to

disability rating determinations. He argues that pursuant to Auer v. Robbins, 519 U.S. 452, 461-62

(1997), Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006), and Camacho v. Nicholson,

21 Vet.App. 360, 363 (2007), the Court must pay substantial deference to this interpretation.

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Further, the Secretary argues that, because Mr. Gill's arguments are based on a flawed reading of DC

7101, the Board's denial of a disability rating higher than 10% for hypertension should be affirmed.

III. ANALYSIS

A. Interpretation of DC 7101 Note (1)

The "interpretation of a . . . regulation is a question of law" that we "review de novo." Lane

v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003). The starting point in interpreting a regulation is

its plain language, for if the meaning of the regulation is clear from its language, that is the "end of

the matter." Tropf v. Nicholson, 20 Vet. App. 317, 320 (2006) (quoting Gardner v. Brown, 5 F.3d

1456, 1458 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994)). While the plain wording of the regulation

controls its interpretation, words generally are not to be read in isolation; rather, they should be read

in context of the regulatory scheme. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

132 (2000) (noting that "[t]he meaning – or ambiguity – of certain words or phrases may only

become evident when placed in context"); cf. Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809

(1989) (noting that "[i]t is a fundamental canon of statutory construction that the words of a statute

must be read in their context and with a view to their place in the overall statutory scheme").

If the meaning of a regulation is unclear from the language, the Court should defer to the

Secretary's interpretation of his own regulation so long as it is not inconsistent with the language of

the regulation or otherwise plainly erroneous. Smith, 451 F.3d at 1349 (citing Auer, 519 U.S. at

461-62); Mason v. Shinseki, 26 Vet.App. 1, 6 (2012); Tatum v. Shinseki, 24 Vet.App. 139, 142

(2010). Indeed, the Secretary's interpretation of his own regulations is entitled to substantial

deference. See Smith, 451 F.3d at 1349-51 (deference warranted where there was "no reason to

suspect that the interpretation does not reflect the agency's fair and considered judgment on the

matter in question"); see also Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352,

1364 (Fed. Cir. 2005) (substantial "deference is due to an agency interpretation of its own regulations

even when that interpretation is offered in the very litigation in which the argument in favor of

deference is made").

We begin with the language of DC 7101, which provides:

Diastolic pressure predominantly 130 or more...................................................60%

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Diastolic pressure predominantly 120 or more...................................................40%

Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly

200 or more.........................................................................................................20%

Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly

160 or more, or; minimum evaluation for an individual with a history of diastolic

pressure predominantly 100 or more who requires continuous medication for

control.................................................................................................................10%

Note (1): Hypertension or isolated systolic hypertension must be confirmed by

readings taken two or more times on at least three different days. For purposes of this

section, the term hypertension means that the diastolic blood pressure is

predominantly 90mm. or greater, and isolated systolic hypertension means that the

systolic blood pressure is predominantly 160mm. or greater with a diastolic blood

pressure of less than 90mm.[4]

Focusing on Note (1), it states that hypertension must be confirmed by at least two blood

pressure readings taken over several days, and it defines hypertension in terms of a specified level

of predominate blood pressure readings. Standing alone, the plain language of Note (1) says nothing

about a disability rating. On the other hand, Note (1) does not stand alone; it is part of DC 7101,

which provides varying disability ratings based on the predominant diastolic and systolic blood

pressure readings, with the number of readings required for a disability rating not otherwise

specified, unless specified by Note (1). Although the Secretary correctly notes that an individual

could have hypertension as defined in Note (1), but not be entitled to a 10% or higher disability

rating, this observation does not answer whether the Note (1) requirements for confirming

hypertension are also applicable – or inapposite – for assigning an appropriate disability rating,

which is dependent on a claimant having hypertension with predominate diastolic and systolic blood

pressure readings at specified levels. Accordingly, we examine whether the Secretary's current

interpretation of Note (1) – i.e., that it applies only to the initial diagnosis of hypertension – reflects

his considered judgment.

In support of his current interpretation, the Secretary references the explanation he provided

when promulgating the changes to Note (1) in 1997, specifically, the comment that

standard medical texts recommend multiple blood pressure readings

for the diagnosis of hypertension . . . . We have revised the note to

require that hypertension be confirmed by readings taken two or more

4

DC 7101 contains two other notes not at issue in this appeal.

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times on each of at least three different days. This will assure that the

existence of hypertension is not conceded based solely on readings

taken on a single, perhaps unrepresentative, day.

62 Fed. Reg. at 65,215 (emphasis added). Although there is no explicit limitation in this sentence

to an initial diagnosis of hypertension, the focus on confirming the existence of hypertension

supports the Secretary's general view on appeal that the specified number of readings applies only

to the confirmation of the existence of hypertension, as opposed to the level of hypertension

necessary for a particular disability rating.

We also note that the explanation further states that the changes to Note (1) were to "assure

more consistent ratings [based on] objective and quantifiable criteria whenever possible," and "[w]e

proposed to revise the note to state that careful and repeated measurements of blood pressure

readings are required prior to the assignment of any compensable evaluation." 62 Fed. Reg. at

65,207, 65,215. Taken alone, this part of the explanation can lead to a conclusion that the specified

blood pressure readings in the amended Note (1) are "required prior to the assignment of any

compensable evaluation." However, no such specificity with regard to disability ratings actually was

added to Note (1), and, read as a whole, the explanation of the changes made to Note (1) refers to

the need for "careful and repeated" blood pressure readings before a compensable rating is assigned,

and specifies the exact number of blood pressure readings required only when addressing the need

to confirm the existence of hypertension. Otherwise stated, the explanation, read as a whole, does

not mandate the interpretation of Note (1) proffered by Mr. Gill, but instead supports the Secretary's

interpretation.

The Secretary also points to the DBQ for hypertension, which explicitly requires two readings

over three days for confirmation of the initial diagnosis of hypertension, and three readings – on

presumably any date – if a veteran was diagnosed previously with hypertension. Although this form

went into effect in October 2012, a month after the Board decision now on appeal, it supports the

Secretary's current interpretation that the regulation requires two blood pressure readings over three

or more days only to confirm the existence of hypertension. That interpretation supports the

Secretary's interpretation on appeal of the scope of Note (1), which also is consistent with the

explanation he offered when Note (1) was modified in 1997. Mr. Gill fails to demonstrate that the

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Secretary's interpretation has varied at any time during the adjudication of his claim by the Secretary

and the Board. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden

of demonstrating error on appeal).

Overall, we find the Secretary's interpretation on appeal of Note (1) to DC 7101 to be

consistent with his explanation at the time Note (1) was modified and to reflect his considered

judgment as to the need for a specified number of blood pressure readings over multiple days to

confirm hypertension. We therefore defer to his interpretation and hold that the multiple blood

pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only

to confirming the existence of hypertension.

B. Adequacy of Examination

In the context of our holding above, we now review whether the Board clearly erred in

finding that the May 2011 examination report substantially complied with its earlier remand order

and otherwise was adequate, along with the other record medical reports, for Board decision. To be

adequate, a medical examination must describe the disability in sufficient detail so that the Board's

"'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown, 6 Vet.App.

405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)); see Acevedo v. Shinseki,

25 Vet.App. 286, 294 (2012) (noting that medical reports "must be read as a whole" in

determinations of adequacy); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (requiring a medical

opinion to "support[] its conclusion with an analysis that the Board can consider and weigh against

contrary opinions"). "Whether a medical opinion is adequate is a finding of fact which this Court

reviews under the 'clearly erroneous' standard of review." D'Aries v. Peake, 22 Vet.App. 97, 104

(2008).

The May 2011 examination report reflects three blood pressure readings that appear to have

been taken on one day. Although, standing alone, these blood pressure readings might be sufficient

to constitute the "careful and repeated" readings the Secretary explained (when promulgating the

1997 changes to DC 7101) were needed to determine the predominate blood pressure required under

DC 7101 for assigning consistent disability ratings, we need not decide such a narrow issue. This

is because Board decisions are to be based on the entire record, and, here, the Board did not rely on

only these three readings for its decision. 38 U.S.C. § 7104(a) ("Decisions of the Board shall be

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based on the entire record in the proceeding and upon consideration of all evidence . . . .");

McClendon v. Nicholson, 20 Vet.App. 79, 84 (2006) (Secretary need not provide additional medical

evidence if there is sufficient medical evidence to decide the claim); Gabrielson v. Brown,

7 Vet.App. 36, 40 (1994) (noting that a medical opinion is "only that, an opinion" providing medical

evidence).

As the Board correctly found, the record contains numerous blood pressure readings over

multiple years, none of which support a disability rating over 10%, including the May 2011

examination blood pressure readings. The Board also noted that Mr. Gill did not report any blood

pressure readings greater than those readings contained in the record. Moreover, the 2011 Board

remand order did not specify what an adequate or appropriate VA examination would be, and the

same Board member who issued the 2011 Board remand order also issued the decision on appeal and

found the May 2011 examination report substantially compliant with his earlier remand order. In

the absence of some specific definition of what constitutes an "appropriate examination," and

because the record contains numerous blood pressure readings taken over multiple years through the

May 2011 medical report – none of which warrant a disability rating higher than 10% – we do not

find clear error in the Board's finding that the May 2011 examination report complied substantially

with the 2011 Board remand order such that the report, along with the other record medical reports,

was adequate for rating purposes. See 38 U.S.C. § 7104(a); D'Aries, supra; Gilbert v. Derwinski,

1 Vet.App. 49, 52 (1990) ("A finding is clearly erroneous when . . . the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed." (internal

quotation marks omitted)); see also Palczewski v. Nicholson, 21 Vet.App. 174, 180 (2007) (mere

passage of time, as opposed to evidence or allegation of a worsening disability, does not warrant

provision of new medical examination); Dyment v. West, 13 Vet.App. 141, 146–47 (1999) (requiring

substantial compliance with Board remand orders).

IV. CONCLUSION

Upon consideration of the foregoing, that part of the Board's September 11, 2012, decision

that is on appeal is AFFIRMED.

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