Harold L. Roby, Jr. v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 17-0528

HAROLD L. ROBY, JR., APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued July 24, 2018 Decided March 19, 2019)

Ronald L. Smith, of Washington, D.C., for the appellant.

Robert Schneider, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief

Counsel; and Selket N. Cottle, Deputy Chief Counsel, were on the brief, all of Washington, D.C.,

for the appellee.

Before SCHOELEN, BARTLEY, and MEREDITH, Judges.

BARTLEY, Judge: Veteran Harold L. Roby, Jr., appeals through counsel a November 17,

2016, Board of Veterans' Appeals (Board) decision that denied entitlement to a disability

evaluation in excess of 30% for achalasia.1 Record (R.) at 2-23.2 This matter was referred to a

panel of the Court, with oral argument, to examine the terms "passage" and "liquids" as used in

38 C.F.R. § 4.114, Diagnostic Code (DC) 7203, to evaluate achalasia. For the reasons that follow,

the Court will affirm the November 2016 Board decision.

1

This term is defined and discussed in Section I.A. of the decision.

2

In the same decision, the Board granted entitlement to a 40% disability evaluation for varicose veins of the

right leg from October 27, 2011, to September 8, 2014. R. at 13-21. Because this determination is favorable to Mr.

Roby, the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) ("The Court is not

permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority.").

In addition, the Board denied entitlement to an increased evaluation for varicose veins of the right leg in excess of

10% prior to February 5, 2009; in excess of 20% from February 5, 2009, to October 26, 2011; and in excess of 40%

from October 27, 2011. Because Mr. Roby has not challenged these portions of the Board decision, the appeal as to

these matters will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to

review the merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App.

45, 48 (2014) (same).

I. BACKGROUND

A. Esophageal Achalasia

Esophageal achalasia (cardiospasm) is the failure of the smooth muscles of the lower

esophageal sphincter 3 to relax with swallowing, thereby causing a narrowing (stricture) of the

esophagus and impairing the movement of food along the digestive tract (peristalsis). See

DORLAND'S at 14, 1418; THE MERCK MANUAL 123 (19th ed. 2011) (MERCK). The primary

symptom of achalasia is difficulty swallowing (dysphagia) for both solids and liquids, but other

symptoms include regurgitation of undigested food, chest pain, and weight loss. MERCK at 123.

Management of achalasia involves diet modification and treatment options aimed at reducing the

esophageal stricture. TEXTBOOK OF SURGERY: THE BIOLOGICAL BASIS OF MODERN SURGICAL

PRACTICE 715 (19th ed. 1986) (TEXTBOOK OF SURGERY); LAWYERS' MEDICAL CYCLOPEDIA OF

PERSONAL INJURIES AND ALLIED SPECIALTIES, Vol. 4 § 30.60b (6th ed. 2013). Treatment options

include, among other things, balloon dilation of the lower esophageal sphincter to expand the

gastroesophageal opening. TEXTBOOK OF SURGERY at 715-16.

B. Evaluating Esophageal Achalasia

The Schedule for Rating Disabilities provides three DCs for esophageal disabilities; two

are related to evaluating achalasia. Achalasia is evaluated under DC 7204, which contemplates

spasm of the esophagus (cardiospasm). 38 C.F.R. § 4.114 (2018). If the achalasia is not amenable

to dilation, DC 7204 directs that the disability is to be evaluated based on the degree of obstruction

under DC 7203, which contemplates esophageal stricture.4 Id.

Under DC 7203, a 30% evaluation is provided when the severity of the stricture is

"[m]oderate." Id. A 50% evaluation is provided when the severity of the stricture is "[s]evere,

permitting liquids only." Id. An 80% evaluation is provided when the severity of the stricture is

such that it results in "[p]ermitting passage of liquids only, with marked impairment of general

health." Id.

3

The lower esophageal sphincter is located where the esophagus meets the stomach (the gastroesophageal

junction). DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1746 (32d ed. 2012) (DORLAND'S).

4

Although achalasia often results in stricture of the esophagus, esophageal stricture may result from other

causes and may be either permanent (structural) or temporary (functional). See DORLAND'S at 1785.

2

C. Facts and Procedural History

Mr. Roby served on active duty in the U.S. Army from July 1975 to July 1992, including

service in Southwest Asia. R. at 159, 1129. In October 1993, a VA regional office (RO) granted

service connection for achalasia and assigned an initial 30% disability evaluation under DC 7203.

R. at 1319-23.

In November 2009, Mr. Roby filed a claim for an increased evaluation for achalasia. R. at

1012. Upon VA examination in December 2009, Mr. Roby reported "very mild dysphagia[,]

occurring at times," but no heartburn and no weight loss. R. at 963. In January 2010, the RO

continued the 30% evaluation for Mr. Roby's achalasia. R. at 674-84. In June 2010, Mr. Roby filed

a Notice of Disagreement, R. at 563, and in January 2011, he perfected an appeal to the Board, R.

at 500.

A January 2011 VA treatment record reflects that Mr. Roby reported that his esophagus

was "getting tight again [with] choking." R. at 468. The clinician referred Mr. Roby to a

gastrointestinal specialist. Id. In February 2011, Mr. Roby underwent an

esophagogastroduodenoscopy (EGD) with dilation. See, e.g., R. at 343-45. A May 2011 VA

gastroenterology note reflects that Mr. Roby reported "[n]o further difficulty with dysphagia." R.

at 136.

Upon VA examination in October 2011, Mr. Roby reported pain in his esophageal area

after eating, blockage of food, and frequent regurgitation of food from the day before in gelatinous

form. R. at 343. He reported multiple dilation procedures, most recently in February 2011, but that

he received symptom relief for at most only the three months following each dilation. R. at 343-

45. Following examination, the examiner indicated the severity of Mr. Roby's achalasia was

moderate due to consistent symptoms of pain and regular blockage of food; the examiner noted no

dysphagia with liquids. R. at 347. Finally, the examiner noted that Mr. Roby's achalasia affects his

employment because six times a month he must leave workplace conversations to perform 10 to

15 minutes of exercises to encourage relaxation of the esophageal musculature. R. at 353.

A November 2012 VA treatment record reflects that Mr. Roby reported food moving

slowly down his esophagus with blockage. R. at 1442. The clinician noted Mr. Roby's history of

esophageal stricture and referred him to a gastrointestinal specialist. R. at 1443. In February 2013,

Mr. Roby underwent another EGD due to solid and liquid dysphagia. R. at 1429-30. The

3

gastroenterologist recommended against dilation and noted that Mr. Roby's symptoms were likely

due to absent motility (peristalsis). Id.

An April 2013 VA gastroenterology treatment record reflects that Mr. Roby reported

dysphagia three times per week to solid foods slightly greater than liquids. R. at 1425. He reported

eating small quantities of food at a time and having to chew very carefully, but that he "does not

limit food." Id. He further reported occasional blockage of food and heartburn symptoms

controlled with medication, but no weight loss. Id. Given Mr. Roby's history of improved

symptoms with dilation, the gastroenterologist recommended another dilation and, if beneficial,

repeat dilation as needed. R. at 1427.

During a May 2014 Board hearing, Mr. Roby testified that he has difficulty swallowing

solid foods and must take small (dime-sized) bites or eat mostly soft foods. R. at 1396-97.

Specifically, he testified that a typical day would include a diet of applesauce, yogurt, mashed

potatoes, chicken, and baby food, but that he avoids foods such as breads or fresh fruit. R. at 1400-

01. However, he reported recurrent blockage of food and having to chew foods "small enough to

where it would be [of] liquid consistency" before swallowing. R. at 1397; see R. at 1401.

Upon VA examination in September 2014, Mr. Roby reported dysphagia to solid foods but

not to liquids since his last dilation in 2011. R. at 68. He stated that it can take up to 15 minutes

for solid foods to pass through his esophagus, but that he must chew them for a long time or raise

both arms to aid in swallowing. Id. He described a typical day of eating as eating three meals:

applesauce and yogurt for breakfast, half a sandwich for lunch, and chicken for dinner. Id. He

added that he drinks juice and eats soup throughout the day. Id. The examiner noted that Mr. Roby

responds well to dilations with decreased symptoms of dysphagia. Id. The examiner noted

symptoms of infrequent episodes of epigastric distress, dysphagia, and pyrosis (heartburn) and

provided an overall assessment of the severity of Mr. Roby's achalasia as moderate. Id.

In the November 2016 decision on appeal, the Board denied entitlement to an evaluation

in excess of 30% for achalasia. R. at 1-21. The Board found that "[a]t no time has [Mr. Roby]

complained, or does the evidence show, that his esophageal stricture is severe, permitting liquids

only." R. at 10 (emphasis in original). The Board noted that the evidence demonstrated that Mr.

Roby "is able to consume food, albeit with difficulty" and there is no indication of an overall

impairment in his health. R. at 11. This appeal followed.

4

II. ARGUMENTS5

Mr. Roby argues that the Board erred in denying him a higher evaluation for achalasia

when it "read an express limitation" into the criteria for higher evaluations that is contrary to the

clear and unambiguous language of DC 7203. Appellant's Br. at 9-10; Reply Br. at 4. Specifically,

he argues that the term "liquid" is clear and should be afforded its ordinary definition, meaning a

substance that flows readily in its natural state, Oral Argument at 4:15-4:51; 5:40-6:07; 11:22-

12:04; 14:00-14:44, or a fluid with no independent shape, id. at 53:47-54:30. He argues that the

Board erred in its interpretation of DC 7203 by requiring that foods be in liquid state when they

enter the mouth to satisfy an evaluation higher than 30%. Appellant's Br. at 9-12; Reply Br. at 3-

4; Oral Argument at 3:48-4:15; 15:25-16:23. He contends that he satisfies the criteria for a 50%

evaluation because his diet is limited to foods that meet the ordinary definition of liquid, including

applesauce, baby food, yogurt, and mashed potatoes, see Oral Argument at 7:20-7:54 (stating that

these foods are liquids because they "will flow naturally" down a 45-degree angle), as well as solid

foods that he chews to a "'liquid consistency,'" which he equates to the ordinary definition of liquid,

Reply Br. at 4; see Oral Argument at 7:54-8:45; 18:55-20:45. In the alternative, he argues that, if

the language of DC 7203 is ambiguous, the Board's interpretation is not permissible because it is

contrary to the regulatory language and not veteran friendly. Appellant's Br. at 11-12; Reply Br. at

3-4.

The Secretary also argues that the regulatory language of DC 7203 is clear and

unambiguous. Specifically, he argues that the term "liquid" is clear and is defined as a substance

that flows freely, of constant volume, having the consistency like that of oil or water. Secretary's

Br. at 12-13; Oral Argument at 28:10-28:44; 46:57-47:12; 49:59-52:53. Additionally, he

acknowledges that the terms "permitting" and "permitting passage" refer to the state of the food as

it passes through the esophagus, not the mouth, even though he argues that the vast majority of

foods will not change states between the mouth and the esophagus, despite Mr. Roby's arguments

to the contrary. Oral Argument at 35:56-38:18; 41:25-42:04; see Secretary's Br. at 12-17. He

further argues that none of the foods specifically identified by Mr. Roby fit the definition of

"liquid" as there is a distinction between liquids and chewed solid food, soft solid foods, and

5

At oral argument, Mr. Roby conceded that he is not entitled to an evaluation in excess of 30% prior to May

2014 but argued that his testimony during the May 2014 Board hearing reflected an increase in the severity of his

achalasia. Oral Argument at 1:51-2:08, Roby v. Wilkie, U.S. Vet. App. No. 17-0528 (argued July 24, 2018),

http://www.uscourts.cavc.gov/oral_arguments_audio.php.

5

purees. Secretary's Br. at 12-17; Oral Argument at 43:57-44:05; 45:13-45:46; 46:57-47:12. Finally,

the Secretary argues that the Board did not interpret DC 7203, but instead applied DC 7203 based

on a plain reading of the regulatory language. Secretary's Br. at 11-15. He argues that, even if the

Board did interpret DC 7203, Mr. Roby has not demonstrated how the Board's interpretation was

arbitrary or capricious. Id. at 16-17.

In addition to the arguments relating to the Board's purported interpretation of DC 7203,

Mr. Roby advances two other arguments. First, he argues that the Board exceeded its jurisdiction

by interpreting DC 7203 in the first instance, thereby depriving him the right to one review on

appeal. Appellant's Br. at 12-13. Second, he argues that the Board did not consider the applicability

of 38 C.F.R. § 4.7 and whether the severity of his achalasia more closely approximated the criteria

for a 50% evaluation. Id. at 14-15; Reply Br. at 4-5.

In addressing Mr. Roby's other arguments, the Secretary contends that the Board did not

exceed its jurisdiction because, even if the Board's analysis could be considered an interpretation

of DC 7203, then the RO similarly "interpreted" that regulation. Secretary's Br. at 17-18. Further,

he argues that the Board properly considered § 4.7 in finding that Mr. Roby was not entitled to a

higher evaluation. Id. at 19 (citing R. at 7, 11). Finally, he argues that a plausible basis for the

Board's determination exists in the record and Mr. Roby fails to demonstrate prejudice for any

purported errors, as the evidence of record does not establish that his achalasia is severe, permitting

liquids only. Id. at 9-10.

III. ANALYSIS

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? 38 C.F.R. § 4.114. We therefore begin our analysis with an examination of the

regulatory language. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) ("The

starting point in interpreting a statute [or regulation] is its language."); Petitti v. McDonald,

27 Vet.App. 415, 422 (2015) ("Regulatory interpretation begins with the language of the

regulation, the plain meaning of which is derived from its text and its structure."); see generally

Southall-Norman v. McDonald, 28 Vet.App. 346, 351 (2016). If the plain meaning is clear from

6

the language of the regulation, then that meaning controls and "that is 'the end of the matter.'"

Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner, 513 U.S. 115, 120

(1994)); see Pacheco v. Gibson, 27 Vet.App. 21, 25 (2014) (en banc). If, however, the language is

ambiguous, then the Court must defer to the agency's interpretation of its regulation unless that

interpretation is inconsistent with the language of the regulation, is otherwise plainly erroneous,

or does not represent the agency's considered view on the matter. Southall-Norman, 28 Vet.App.

at 351; see Auer v. Robbins, 519 U.S. 452, 461-62 (1997); Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945); Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006).

A. The Meaning of "Permitting" and "Permitting Passage" in DC 7203 is Clear

Diagnostic Code 7203 specifically refers to stricture of the esophagus and provides varying

evaluations based on the severity of the stricture. 38 C.F.R. § 4.114. Notably, higher evaluations

are provided for a greater degree of esophageal narrowing (i.e., moderate or severe) and for an

inability to pass anything but liquids.6 Id. Based on the structure of the DC, it is clear that the

general focus in assessing a veteran's esophageal stricture disability is not determining what may

be placed in the mouth (a part of anatomy not mentioned in the DC), but instead determining what

may pass through the esophagus. Although the Secretary may be correct that, with the vast majority

of substances, whether it is a liquid will remain the same between the mouth and esophagus, in

cases where there is a difference, 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.

B. The Meaning of "Liquids" as Used in DC 7203 is Ambiguous

Moving on to the definition of "liquids" in DC 7203, we note that this appeal centers around

certain foods that Mr. Roby consumes—namely applesauce, baby food, yogurt, and mashed

potatoes—and whether those foods would satisfy the requirement for a 50% evaluation. Both

parties agree that the meaning of "liquids" as used in DC 7203 is clear and unambiguous on its

face. They both agree that the term "liquids" should be afforded its ordinary meaning, and both

cite to dictionaries to proffer similar definitions. See, e.g., Nielson v. Shinseki, 23 Vet.App. 56, 59

6

Under DC 7203, a 30% evaluation is provided for a stricture of "moderate" severity and a 50% evaluation

is provided for a stricture that is "severe, permitting liquids only." 38 C.F.R. § 4.114. An 80% evaluation, in addition

to requiring a stricture "[p]ermitting passage of liquids only," also requires a showing of "marked impairment of

general health." Id.

7

(2009) ("It is commonplace to consult dictionaries to ascertain a term's ordinary meaning."). At

oral argument, Mr. Roby offered two definitions. First, relying on Dorland's, he defined a liquid

as a substance that flows readily in its natural state that is neither a solid nor a gas. Oral Argument

at 4:15-5:01, 5:14-5:21; see DORLAND'S at 1065. Second, relying on Webster's Dictionary, he

defined liquid as a fluid, such as water, that has no independent shape but has a definite volume,

does not expand indefinitely, and is only slightly compressible. Oral Argument at 5:22-5:36; see

MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/liquid

(noun definition 2) (last accessed March 19, 2019). Similarly, the Secretary, relying on the Oxford

Living Dictionary, defined liquid as a substance that flows freely but is of constant volume, having

a consistency like that of water or oil. Secretary's Br. at 12-13; see OXFORD LIVING DICTIONARY,

https://en.oxforddictionaries.com/definition/liquid (noun definition 1) (last accessed March 19,

2019).

Although both parties rely on different dictionaries to proffer definitions of "liquids," their

respective definitions are quite similar. These definitions reflect the basic principle that liquids are

substances that are neither solid nor gas. More specifically, liquids, like solids and unlike gases,

have a definite and fixed volume. In contrast, liquids, like gases and unlike solids, do not have an

independent shape, meaning they flow freely and take the shape of their container.7

Although these definitions provide a clear distinction between solids and liquids,8 there are

other regulatory terms that may be relevant to determining whether "liquids" is ambiguous, such

as purees, soft solids, and semisolids. See, e.g., 38 C.F.R. § 4.150, DC 9905, Note (3) (2018)

(criteria for evaluating temporomandibular disorder disabilities); 76 Fed. Reg. 39160, 39162 (Jul.

5, 2011) (proposed rule to amend, in part, DC 7203, which was withdrawn by 77 Fed. Reg. 27009

(May 8, 2012)). The parties differ as to whether applying their respective definitions of a liquid to

those other terms clearly reveals which substances constitute liquids under DC 7203. Specifically,

7

Compare the definitions of the terms "solid," "liquid," and "gas" found in the general reference dictionaries

cited by the parties. Compare Liquid, https://en.oxforddictionaries.com/definition/liquid (noun definition 1) and

https://www.merriam-webster.com/dictionary/liquid (noun definition 2), with Solid,

https://en.oxforddictionaries.com/definition/solid (noun definition 1, adjective definition 1) and

https://www.merriam-webster.com/dictionary/solid (noun definition 2a), with Gas, https://en.oxforddictionaries.com/

definition/gas (noun definition 1) and https://www.merriam-webster.com/dictionary/gas (noun definition 1) (all last

accessed March 19, 2019).

8

Because the relevant focus here deals with whether substances are liquids under DC 7203, the Court's

analysis is limited to determining the regulatory definition of liquids in comparison only to solids and without

consideration of the differences between liquids and gases.

8

Mr. Roby argues that if a food is not solid, then it is, by default, liquid. He, therefore, frames the

relevant distinction as solid food versus non-solid food. In contrast, the Secretary argues that the

proper distinction is liquid food versus non-liquid food. It is this disagreement that lies at the center

of this appeal.

The Court is unable to discern a plain meaning of the term "liquids" from the text, structure,

or purpose of DC 7203. 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. The regulation does not provide a definition of "liquids" and the Secretary has

not identified a definition proffered by VA in the Rating Schedule, regulatory guidance, or

adjudicative manuals. Although the structure of DC 7203 reflects that the purpose is to provide

higher evaluations for a greater degree of esophageal narrowing and for an inability to pass

anything but liquids, it does not indicate what particular substance or substances may be considered

a liquid.

In addition, there is no regulatory history available for the Court to glean how the term

liquid should be interpreted. When VA first published the Schedule for Rating Disabilities in the

Federal Register, which it did without commentary, DC 7203 utilized the exact same language that

exists today. See 29 Fed. Reg. 6718 (May 22, 1964); compare 38 C.F.R. § 4.114, DC 7203 (1964),

with 38 C.F.R. § 4.114, DC 7203 (2018). Moreover, the exact same language was used when DC

7203 was incorporated into the Rating Schedule, effective April 1, 1946. Compare 38 C.F.R.

§ 4.114, DC 7203 (1946), with 38 C.F.R. § 4.114, DC 7203 (2018).

Without a clear meaning from the plain language or guidance from the regulatory history,

the Court concludes that the regulatory language of DC 7203 is ambiguous with respect to

application of the ordinary definition of liquid to the substances that fall in between pure liquid

and pure solid. See Smith, 451 F.3d at 1350-51; Tropf, 20 Vet.App. at 321 n.1 (finding ambiguity

"when the application of the ordinary meaning of words and rules of construction to the plain

language of the regulation fails to answer the question at issue"); see also FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) ("The meaning—or ambiguity—of certain

words or phrases may only become evident when placed in context.").

As the regulatory language is ambiguous, the Secretary's interpretation will be afforded

deference so 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. See

9

Auer, 519 U.S. at 462; Smith, 451 F.3d at 1350-51; Pacheco, 27 Vet.App. at 26. The Court

concludes that the Secretary's interpretation is neither plainly erroneous nor inconsistent with the

regulation, and is reflective of his fair and considered judgment.

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. See

Martin v. Occupational Safety and Health Review Com'n, 499 U.S. 144, 150-51 (1991); see also

Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 613 (2013) ("It is well

established that an agency's interpretation need not be the only possible reading of a regulation—

or even the best one—to prevail.").

The Secretary's interpretation also 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. In July 2011, the Secretary proposed to overhaul that portion of the Schedule for

Rating Disabilities pertaining to digestive disabilities. 76 Fed. Reg. 39,160 (Jul. 5, 2011). At that

time, VA proposed to evaluate disabilities of the mouth, lip, tongue, and esophagus under a general

rating formula, based, in part, on the degree of a veteran's dietary restrictions. Id. at 39,161-63,

39,178. Although the need for the proposed revision was based, in part, on the subjectivity of the

terms "moderate," "marked," and "severe" and not on any perceived subjectivity in the term

"liquids," the proposed criteria differentiated between "liquid foods" and "soft solid foods" and

provided higher evaluations where a disability precluded eating soft solid foods but not liquid

foods. Id. Although the Secretary ultimately withdrew the proposed regulatory changes, see

77 Fed. Reg. 27,009 (May 8, 2012), the distinction between "liquid foods" and "soft solid foods"

is consistent with his current interpretation of "liquids" that makes the same distinction.

The Secretary also made a similar distinction when he amended 38 C.F.R. § 4.150, DC

9905, which contemplates temporomandibular disorders. See 80 Fed. Reg. 44,913, 44,915-17 (Jul.

28, 2015). As relevant, the rating criteria, which are based on criteria established by the Academy

of Nutrition and Dietetics, contemplate varying levels of texture-modified diets and define four

levels of mechanically altered foods: full liquid, puree, soft foods, and semisolid foods. Id. at

10

44,918; see 38 C.F.R. § 4.150, DC 9905, Note (3) (2018).9 Although the Secretary's differentiation

of texture-modified foods is not found in the language of DC 7203, his current interpretation of

"liquids" as excluding purees, soft solids, and semisolid foods is consistent with DC 9905, which

provides evaluation criteria addressing a similar functional impairment; namely both diagnostic

codes contemplate a disability necessitating a texture-modified diet. See Vazquez-Claudio v.

Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013) ("In construing regulatory language, we must read

the disputed language in the context of the entire regulation as well as other related regulatory

sections in order to determine the language's plain meaning.").

Although not absolute, "there is a natural presumption that identical words used in different

parts of the same act are intended to have the same meaning." Atlantic Cleaners & Dyers v. United

States, 286 U.S. 427, 433 (1932); see Gardner, 513 U.S. at 118; Prokarym v. McDonald,

27 Vet.App. 307, 310 (2015). Mr. Roby has offered no persuasive argument as to why liquid

should be interpreted more broadly in DC 7203 than in DC 9905. See Oral Argument at 16:25-

18:21. Therefore, the Court concludes that the Secretary's current interpretation of the term

"liquids" appears to be based on his fair and considered judgment and consistent with previous

interpretations of "liquid" in similar circumstances. Accordingly, deference is warranted to the

Secretary's interpretation that the term "liquids" in DC 7203 does not include foods with the texture

or quality of purees, soft solids, or semisolids.

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. See

Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 159 (2012) (evaluating under the lesser

Skidmore standard whether deference to an agency's interpretation of an ambiguous regulation was

warranted after concluding that Auer deference was not warranted); Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944) (noting that an agency's interpretation is entitled to proportional

deference depending on "the thoroughness evident in its consideration, the validity of its reasoning,

its consistency with earlier and later pronouncements, and all those factors which give it power to

persuade"). 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.

9

The amended criteria were adopted by final rule, without any additional commentary regarding texture-

modified diets or mechanically altered foods, effective September 10, 2017. 82 Fed. Reg. 36,080 (Aug. 3, 2017).

11

Mr. Roby argues, however, that any ambiguity in the regulation should be resolved in his

favor due to the pro-claimant nature of the veterans benefits system. Appellant's Br. at 11-12 (citing

Gardner, 513 U.S. at 118); Appellant's Citation of Supplemental Authority at 1-2. However, as

discussed above, 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. See Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs,

809 F.3d 1359, 1363 (Fed. Cir. 2016); Guerra v. Shinseki, 642 F.3d 1046, 1051 (Fed. Cir. 2011);

Sears v. Principi, 349 F.3d 1326, 1331-32 (Fed. Cir. 2003) (all rejecting the argument that the pro-

veteran canon of construction overrides deference due to VA's reasonable interpretation of an

ambiguous statute).

The Board denied entitlement to an evaluation in excess of 30% because "the evidence of

record shows that [Mr. Roby] is able to consume food, albeit with difficulty, and that his

esophageal stricture is not severe, permitting liquids only." R. at 11 (emphasis in original). The

Board's analysis is consistent with the clear meaning of "permitting" and "[p]ermitting passage"

and with the Secretary's interpretation of "liquids." Therefore, the Court concludes that Mr. Roby

fails to demonstrate that the Board erred in denying entitlement to an evaluation in excess of 30%.

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

demonstrating error on appeal), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).

C. Appellant's Arguments Regarding Chewing a Solid into a Liquid

In addition to arguing that most foods he eats are themselves liquids, Mr. Roby argues that

he liquefies other foods, such as chicken and sandwiches, through chewing. He contends that he

chews each bite of food for 10 to 15 minutes resulting in the food being of "liquid consistency"

prior to it passing through his esophagus. Oral Argument at 2:08-3:02; 18:21-20:45 (equating the

terms "liquid," "liquid consistency," "liquefied food," and "thoroughly chewed solid food"); see

R. at 68, 1396-97, 1400-01. He points to no medical evidence in the record, such as a physician

statement or medical treatise, to support his contention, but instead argues that his lay statements

alone are competent to describe foods as being in a liquid state when they pass through his

esophagus because that type of information is perceptible through one's five senses. Oral Argument

at 21:15-22:43; see Layno v. Brown, 6 Vet.App. 465, 469 (1994) (explaining that a witness is

competent to testify as to any fact that is within his or her personal knowledge, "which comes to

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the witness through the use of his [or her] senses—that which is heard, felt, seen, smelled, or

tasted").

The Secretary argues that Mr. Roby has not carried his burden of supporting his assertions

with competent evidence that chewing can turn a solid food into a liquid. Secretary's Br. at 15-16;

Oral Argument at 44:10-45:47. He argues that, although there may be instances when a solid food

will transform into a liquid prior to passing through the esophagus, Mr. Roby has not cited evidence

that the solid foods he eats, such as chicken, are transformed into a liquid, as opposed to remaining

as a chewed solid, prior to swallowing. Oral Argument at 36:58-38:18.

Here, the Court has determined that the term "liquids" in DC 7203 is ambiguous, but

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

foods that have a textual quality like purees, soft solids, semisolids, or chewed solids. Thus, Mr.

Roby's argument that he can chew solid food into a liquid is not in accord with the meaning of

"liquids" in DC 7203 and the Court does not need to address this matter further.

D. Remaining Arguments

1. The Board's Authority to Interpret DC 7203

Mr. Roby additionally argues that, because the RO did not interpret the language of DC

7203, the Board lacked jurisdiction to interpret that DC in the first instance and that, to the extent

that the Board identified ambiguity in the DC in this case, it deprived him of the right to one review

on appeal. Appellant's Br. at 12-13 (citing Disabled American Veterans v. Sec'y of Veterans

Affairs, 327 F.3d 1339, 1346 (Fed. Cir. 2003)); Oral Argument at 22:48-24:47 (arguing that,

although the Board did not explicitly find DC 7203 ambiguous, its decision is premised on an

implicit ambiguity in the regulation requiring that food be in a liquid state when it enters the mouth

to satisfy the criteria for a 50% evaluation). The Court disagrees.

Regardless of how the RO analyzed Mr. Roby's case vis-à-vis DC 7203, the Board is not

precluded from interpreting or reaching conclusions about regulatory language where the RO did

not reach the same conclusion or make the same interpretation. Although Mr. Roby acknowledges

that the Board need not remand in order to consider law not previously considered by the RO, see

Disabled American Veterans, 327 F.3d at 1349,10 38 C.F.R. § 19.9(d)(2) (2018); he argues that

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The U.S. Court of Appeals for the Federal Circuit's analysis specifically identifies 38 C.F.R. § 19.9(b)(2),

but the regulation was amended by final rule in 2011, resulting in this remand exception that was previously found in

§ 19.9(b)(2) being moved to § 19.9(d)(2). 76 Fed. Reg. 17,544 (Mar. 30, 2011).

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§ 19.9(d)(2) does not allow the Board to find ambiguity in the first instance because, if it did, that

interpretation would not receive one review on appeal, Appellant's Br. at 12-13 (arguing that

"[u]nless the RO first decides an issue of regulatory interpretation, the Board has no jurisdiction

over the question"); Oral Argument at 23:46-24:25.

Logic belies his argument, as this distinction would purportedly allow the Board, under

§ 19.9(d)(2), to consider and find ambiguity in the regulatory language where the RO completely

failed to consider DC 7203, but not where the RO applied DC 7203 but found it unambiguous.

Moreover, the Board conducts de novo review of RO decisions based on the entire record, see

38 U.S.C. § 7104(a); Disabled American Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317,

1319 (Fed. Cir. 2005); 38 C.F.R. § 19.7 (2018), and is free to deny a claim on a different basis

than that on which the RO denied the same benefit. Even if the Board found ambiguity in the

regulatory language, it was free to do so and was not bound by an RO decision that did not

explicitly find ambiguity.

At oral argument, however, Mr. Roby seemingly changed course, arguing that the Board

was without jurisdiction to interpret DC 7203 because the exclusive authority to interpret

ambiguities in regulatory language is vested with VA's Office of General Counsel (OGC). Oral

Argument at 22:48-23:45. Although the Board is bound by interpretative guidance rendered in

"precedent opinions of the chief legal officer of the Department," 38 U.S.C. § 7104(c), the Board

is not precluded from interpreting regulatory language in the absence of such guidance from the

OGC. See Hudgens v. McDonald, 823 F.3d 630, 638 (Fed. Cir. 2016) (noting that "[i]f the

Secretary is dissatisfied with the Board's interpretation of a regulation, the Secretary may instruct

the Board regarding what the Secretary believes is the correct interpretation, and such instructions

are binding on the Board" (citing 38 U.S.C. § 7104(c))). In fact, in assessing whether the

Secretary's interpretation of ambiguous statutory or regulatory language should be afforded

deference, courts routinely look to decisions of the Board to determine if the Board's interpretation

is consistent with that of the Secretary, even where there is not a precedential OGC opinion. See

id. at 638-39; Fountain v. McDonald, 27 Vet.App. 258, 267-71 (2015). Therefore, Mr. Roby's

argument that the Board was without jurisdiction to interpret DC 7203 is unpersuasive.

2. Application of 38 C.F.R. § 4.7

Finally, Mr. Roby argues that the Board erred in failing to consider whether his disability

more closely approximates the criteria for a 50% evaluation. Appellant's Br. at 14-15; Reply Br.

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at 4-5; Oral Argument at 8:46-11:23; see 38 C.F.R. § 4.7 (2018) ("Where there is a question as to

which of two evaluations shall be applied, the higher evaluation will be assigned if the disability

picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating

will be assigned."). As support for this argument, he argues that, although he did not meet the

criteria for a higher evaluation prior to May 2014, the Board hearing testimony is reflective of

increased severity such that, even if he does not meet the criteria for a 50% evaluation, his

disability picture more closely approximates the criteria for the higher evaluation. Oral Argument

at 8:46-11:23.

Contrary to Mr. Roby's arguments, the Board considered and applied § 4.7. In its recitation

of relevant law governing claims for increased evaluations, the Board specifically referenced § 4.7

and its direction to assign the higher evaluation if the disability picture more nearly approximates

the criteria for that evaluation. R. at 7. In its analysis, the Board then considered application of

§ 4.7, but found that symptoms associated with Mr. Roby's achalasia did not more closely

approximate the criteria for a 50% evaluation. R. at 11 ("Thus, the evidence shows that [Mr.

Roby's] achalasia has not met or approximated the criteria for an increased rating . . . . Rather, it

has more nearly approximated the criteria for a 30[%] rating."). In reaching its conclusion, the

Board considered the May 2014 Board hearing testimony, along with additional evidence of

record, and determined that the evidence as a whole consistently reflected that the severity of Mr.

Roby's achalasia did not satisfy or more nearly approximate the criteria for a 50% evaluation. R.

at 10-11. Therefore, the Court cannot agree with Mr. Roby that the Board failed to consider § 4.7

and his argument asserting Board error in this respect must fail.

IV. CONCLUSION

Upon consideration of the foregoing, that portion of the November 17, 2016, Board

decision that denied entitlement to a higher evaluation for achalasia is AFFIRMED. The balance

of the appeal is DISMISSED.

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