# Petition for Writ of Certiorari — Terry v. Principi, 124 S. Ct. 1606 (2004) (No. 03-1019)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004

## Text

US.

No 31014 JAN 4 3 2004

OFFICE OF THE GLE

In The
Supreme Court of the Anited States

o

JAMES J. TERRY,

Petitioner,

a.

ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS

Respondent.

4

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit

«

PETITION FOR WRIT OF CERTIORARI

¢

KENNETH M. CARPENTER
Counsel of Record
CARPENTER, CHARTERED
1525 S. Topeka Blvd.
P.O. Box 2099

Topeka, KS 66601-2099
(785) 357-5251

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether every “defect, infirmity, or disorder” which
results in a disability is within the statutory scope of
disabilities compensable under the veteran’s disability
compensation provisions of Title 38, United States Code?

ii

TABLE OF CONTENTS

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PETITION FOR WRIT OF CERTIORARI ................ 1
Cr EE SD sccarnevncevecicnpnadcisannnmmnnmnea 1
STATEMENT OF JURISDICTION.................c eee 1

STATUTORY AND REGULATORY PROVISIONS
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STATEMENT OF THE CASE..................ccecceseceeeeeees 4
REASONS FOR GRANTING THE WRIT ............00--. 6
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TE PERIL: sdkiissincintcnicismmiceniaeinhaeanaamaneaanaee App. 1

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TABLE OF AUTHORITIES
Page
CASES

Boone v. Lightner, 319 U.S. 561 (19438) .................ccccssssseee 13

Fishgold v. Sullivan Drydock & Repair Corp., 328
ie sic saedcijcrsubensaudchiaisenccenanisionsions eS
King v. St. Vincent’s Hospital, 502 U.S. 215 (1991).....10, 11
Massachusetts v. Morash, 490 U.S. 107 (1989).............00. 10
NLRB v. Federbush Co., 121 F.2d 954 (2d Cir. 1941)........ 11
Terry v. Principi, 340 F.3d 1378 (Fed.Cir. 2008)................. 9

STATUTES
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8 3, 5, 9, 12
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REGULATIONS

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iv

TABLE OF AUTHORITIES — Continued

Page
OTHER
Public Law 78-144, 72 Op. Sol. 298 (Feb. 7, 1944)............ 11
Report of the Chairman, Board of Veterans’ Ap-

SE, FE HIE Dien iiccssiasiascaiie dnc iancisenceneonenéuteaecinboes 6
VAOPGCPREC 3-2003 (July 16, 2008)......... ce eeeeeeeeeeeeee 11
William F. Fox, Jr., The United States Board of

Veterans’ Appeals: The Unfinished Struggle to

Reconcile Speed and Justice During Intra-Agency

RE Tele Gh, SE anadiaunditncicansicierinerictnronulesanteemmienecias 6

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Federal Circuit in this case.

¢

OPINIONS BELOW

The opinion of the court of appeals (App., infra 1-15) is
reported at 340 F.3d 1378 (Fed.Cir. 2003). The opinion of
the United States Court of Appeals for Veterans Claims
(App., infra 31-33) is reported at No. 99-2167, 2002 WL
1446679 (Vet.App. July 2, 2002).

¢

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on
August 27, 2003. A petition for rehearing en banc was
denied on October 23, 2003. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).

4

STATUTORY AND REGULATORY
PROVISIONS INVOLVED

38 U.S.C. § 1110. Basic entitlement

For disability resulting from personal injury
suffered or disease contracted in the line of
duty, or for aggravation of a preexisting in-
jury suffered or disease contracted in the
line of duty, in the active military, naval, or
air service, during a period of war, the
United States will pay to any veteran thus

2

disabled and who was discharged or re-
leased under conditions other than dishon-
orable from the period of service in which
said injury or disease was incurred, or pre-
existing injury or disease was aggravated,
compensation as provided in this subchap-
ter, but no compensation shall be paid if the
disability is a result of the veteran’s own
willful misconduct or abuse or alcohol or
drugs.

38 U.S.C. § 1111. Presumption of sound condition

For the purposes of section 1110 of this title,
every veteran shall be taken to have been in
sound condition when examined, accepted,
and enrolled in service, except as to defects,
infirmities, or disorders noted at the time of
the examination, acceptance, and enroll-
ment or where clear and unmistakable evi-
dence demonstrates that the injury or
disease existed before acceptance and en-
rollment and was not aggravated by such
service.

38 U.S.C. § 1131. Basic entitlement

For disability resulting from personal injury
suffered or disease contracted in the line of
duty, or for aggravation of a preexisting in-
jury suffered or disease contracted in the
line of duty, in the active military, naval, or
air service, during other than a period of
war, the United States will pay to any vet-
eran thus disabled and who was discharged
or released under conditions other than dis-
honorable from the period of service in
which said injury or disease was incurred, or

3

preexisting injury or disease was aggra-
vated, compensation as provided in this sub-
chapter, but no compensation shall be paid if
the disability is a result of the veteran’s own
willful misconduct or abuse or alcohol or
drugs.

38 U.S.C. § 1153. Aggravation

A preexisting injury or disease will be con-
sidered to have been aggravated by active
military, naval, or air service, where there is
an increase in disability during such service,
unless there is a specific finding that the in-
crease in disability is due to the natural pro-
gress of the disease.

38 U.S.C. § 1701. Definitions

(1) The term “disability” means a disease,
injury, or other physical or mental defect.

38 C.F.R. § 3.303(c). Preservice disabilities noted in
service

There are medical principles so universally
recognized as to constitute fact (clear and
unmistakable proof), and when in accor-
dance with these principles existence of a
disability prior to service is established, no
additional or confirmatory evidence is nec-
essary. Consequently with notation or dis-
covery during service of such residual
conditions (scars; fibrosis of the lungs; atro-
phies following disease of the central or pe-
ripheral nervous system; healed fractures;
absent, displaced or resected parts of or-
gans; supernumerary parts; congenital mal-
formations or hemorrhoidal tags or tabs,

4

etc.) with no evidence of the pertinent ante-
cedent active disease or injury during ser-
vice the conclusion must be that they
preexisted service. Similarly, manifestation
of lesions or symptoms of chronic disease
from date of enlistment, or so close thereto
that the disease could not have originated in
so short a period will establish preservice
existence thereof. Conditions of an infectious
nature are to be considered with regard to
the circumstances of the infection and if
manifested in less than the respective incu-
bation periods after reporting for duty, they
will be held to have preexisted service. In
the field of mental disorder, personality dis-
order which are characterized by develop-
mental defects or pathological trends in the
personality structure manifested by a life-
long pattern of action or behavior, chronic
psychoneurosis of long duration or other
psychiatric symptomatology shown to have
existed prior to service with the same mani-
festations during service, which were the
basis of the service diagnosis, will be ac-
cepted as showing preservice origin. Con-
genital or developmental defects, refractive
error of the eye, personality disorders and
mental deficiency as such are not diseases or
injuries within the meaning of applicable
legislation.

¢

STATEMENT OF THE CASE

Mr. Terry applied to the Department of Veterans
Affairs for disability compensation because he suffers
presbyopia, a condition of the eye. The VA denied the

5
claim. It relied on a VA regulation at 38 C.F.R. § 3.303(c).
The regulation excludes certain disabilities from those for
which disability compensation may be awarded, including
“refractive error of the eye.”

Mr. Terry appealed to the agency’s administrative
appellate forum, the Board for Veterans’ Appeals, but the
Board is bound by agency regulations and therefore
reached the same result.

Mr. Terry then appealed further, to the United States
Court of Appeals for Veterans Claims and then to the
United States Court of Appeals for the Federal Circuit. In
both those appeals, Mr. Terry challenged the validity of the
regulation on which the agency relied. Mr. Terry argued
that the regulation is inconsistent with the relevant
statutory provisions, 38 U.S.C. §§ 1110, 1111, 1131, and
1153.

Both courts disagreed. They concluded instead that
the regulation was a valid exercise of the agency’s author-
ity to promulgate regulations, finding it necessary that the
agency define “injury or disease” to facilitate its adjudica-
tion of claims for disability compensation. It is on exactly
that point that Mr. Terry disagrees. He contends that
veterans disability compensation is not based on “injury or
disease.” Instead, he contends, veterans disability com-
pensation is based on “disability” and certain other factors
not presently relevant (e.g., active military service and
connection of the disability to that service).

ry
v

6

REASONS FOR GRANTING THE WRIT

This honorable court should grant this petition be-
cause a United States court of appeals has decided an
important question of federal law in a way that conflicts
with statutory scheme and the decisions of this Court
regarding the interpretation of veterans’ benefits statutes.

The question of federal law is the interpretation of 38
U.S.C. §§ 1110 and 1131 and 38 C.F.R. § 3.303(c). The
court of appeals concluded that Congress did not intend to
include “every defect, infirmity, or disorder” within the
scope of disabilities compensable under Title 38, United
States Code. This conclusion is mistaken because the
spectrum of compensable disabilities is not defined by the
meaning of the words “injury or disease.”

These matters have an enormous impact. About 2.2
million claims for various benefits are filed at the VA
annually. William F. Fox, Jr., The United States Board of
Veterans’ Appeals: The Unfinished Struggle to Reconcile
Speed and Justice During Intra-Agency Review 68 (c. 2000)
(re FY 1999). Claims for disability compensation easily
constitute the largest component: 92% (15,887) of the
appeals disposed by the Board in FY 2002 involved claims
for disability compensation. Report of the Chairman,
Board of Veterans’ Appeals, Fiscal Year 2002 at p. 14
(2003).

Among those claims for disability compensation,
generous statutory provisions allow veterans disability
compensation for any disability which was incurred during
active military service or which, even though pre-existing,
was aggravated during active military service. Statutory
presumptions help the veteran. Two pertinent here are the
presumption of sound condition and the presumption of

aggravation. One who is accepted for service upon the
required induction physical is presumed to be in sound
medical condition in all respects other than any which are
noted upon the records of the induction examination.
Similarly, a disability-which worsens during active mili-
tary service is presumed to have been aggravated by active
military service unless the contrary is shown. The court of
appeals’ decision adversely affects every veteran who
entered service without knowledge of a preexisting con-
genital or developmental defect or who was accepted as fit
for duty despite such a preexisting condition or where a
preexisting condition was not noted at entrance examina-
tion. The Secretary’s regulation creates a bar to disability
compensation which is inconsistent with the overall
statutory scheme and the court of appeals’ decision to
uphold the validity of that regulation perpetuates this
mistaken interpretation.

Mr. Terry respectfully notes that issues of statutory or
regulatory interpretation of veterans benefits law are not
contributed to by courts of appeal other than the court of
appeals for the Federal Circuit because it has exclusive
jurisdiction over such matters. 38 U.S.C. § 7292(c). As the
result of that exclusivity, an interpretation of VA statutes
and regulations affecting fundamental issues of entitle-
ment to benefits, does not benefit from the consideration of
such matters by the other courts of appeal.

¢

EVERY DEFECT, INFIRMITY, OR DISORDER
RESULTING IN DISABILITY IS WITHIN THE
SCOPE OF COMPENSABLE DISABILITIES.

Veterans of military service are entitled to various
benefits under Title 38 of the United States Code. The

benefit most frequently sought, and the one involved in
this appeal, is entitlement to disability compensation.
Congress mandates that compensation shall be paid for
disabilities resulting from an “injury or disease” which
occurred during active military service. Congress did not
define “injury or disease.” The VA promulgated 38 C.F\R.
§ 3.303(c) to define those terms, but it limits the scope of
those conditions for which compensation would be paid for
an “injury or disease” occurring during service. Eligibility
for compensation is not limited by the nature of the “injury
or disease.” The VA’s regulation restricts eligibility in
cases, like this involving certain preexisting conditions,
described in the regulation as “congenital or developmen-
tal defects, refractive error of the eye, personality disor-
ders and mental deficiency.” See 38 C.FR. § 3.303(c).
Unfortunately, the courts below upheld the VA’s regula-
tion.

The scope of compensable disabilities is not limited by
the terms “injury or disease,” but rather the separate
provisions of the statutory scheme when considered as
part of an organic whole, allow for consideration of com-
pensation for every “defect, infirmity, or disorder.” A more
specific definition of “injury or disease” is not necessary to
establish a veteran’s entitlement to compensation for a
resulting disability when the veteran entered service
without a “defect, infirmity, or disorder” noted at entrance
examination to service. See 38 U.S.C. §§ 1110, 1131 and
1111. Congress expressly provided that a preservice
“injury or disease” will be presumed to have been aggra-
vated by military service where there was an increase in
disability during service unless there is a specific finding
that the increase in disability was due to the natural

9

progression of the preservice “injury or disease.” See 38
U.S.C. §§ 1110, 1131 and 1153.

The court of appeals misinterpreted 38 U.S.C.,§§ 1110
and 1131 with the result that it permitted the agency to
limit the scope of compensable disabilities by defining the
terms “injury or disease.” Terry v. Principi, 340 F.3d at
1382. The court of appeals incorrectly relied upon the
“ordinary meaning” of the terms “injury or disease.” Terry
v. Principi, 340 F.3d at 1382 and 1383. Without the re-
quired consideration for the interplay of §§ 1110 and 1131
with §§ 1111 and 1153, the court of appeals determined
that the ordinary meanings of “injury or disease” did not
fill the gap left by the statute with respect to what kinds of
conditions qualify as “injuries or diseases” for-the purposes
of entitlement to veterans’ benefits. Terry v. Principi, 340
F.3d at 1383. The court of appeals was required to have
considered the separate provisions of the veterans’ benefits
statutory scheme as part of an organic whole and given to
each as liberal a construction for the benefit of veterans as
the harmonious interplay of each separate provision will
permit. Fishgold v. Sullivan Drydock & Repair Corp., 328
U.S. 275 (1946). But it didn’t.

Instead, Mr. Terry submits that Congress did intend
that every “defect, infirmity, or disorder” would be within
the scope of those conditions for which compensation
might be paid for “resulting disabilities,” ceteris parabus.
The court of appeals wrongly focused on the meaning of
“injury or disease” when the relevant consideration should
have been on the meaning of the term used by Congress in
§§ 1110 and 1131 “disability.” Congress must be presumed
to have knowingly used the terms “defects, infirmities or
disorders” in 38 U.S.C. § 1111, when referring to the
conditions for which compensation would be paid for

10

“disabilities.” Section 1111 expresses the intent of Con-
gress that it was written “[flor the purposes of section
1110.”

The meaning of statutory language, plain or not,
depends on context. King v. St. Vincent’s Hospital, 502
U.S. 215 (1991) at 221. The cardinal rule is that a statute
is to be read as a whole. See Massachusetts v. Morash, 490 ~
U.S. 107, 115 (1989). Congress did define the term “dis-
ability” at 38 U.S.C. § 1701(1). Mr, Terry submits that the
predicate for entitlement to compensation under 38 U.S.C.
§§ 1110 and 1131 is not based upon the definition of the
terms “injury or disease” but rather is based upon whether
a veteran suffers from any “disability.” Based upon the
definition provided by Congress of “disability,” a disability
may result from any “disease, injury or other physical or
mental defect.” See 38 U.S.C. § 1701(1).

The special canons of construction for veterans’
benefits statutes require the consideration of the harmoni-
ous interplay between the statutory provisions with the
intent of Congress. Therefore, in determining the scope of
those conditions for which compensation will be paid by
the United States, it is the meaning of the term “disabil-
ity” which is dispositive rather than the meaning of the
neutral terms of “injury or disease.” Congress provided in
both § 1111 and § 1701(1), the scope of conditions for which
compensation would be paid: “defects, infirmities, or
disorders.” The term “disability” must be interpreted as
being broadly inclusive rather than narrowed and made
exclusive by a limiting definition of “injury or disease”
tacked on by the agency. A narrow reading of the statutory
scheme unreasonably excludes conditions, as in 38 C.F.R.
§ 3.303(c), from compensation contrary to any intent
expressed by Congress.

11

This Court has previously noted that “Words are not
pebbles in alien juxtaposition; they have only a communal
existence; and not only does the meaning of each inter-
penetrate the other, but all in their aggregate take their
purport from the setting in which they are used... NLRB
v. Federbush Co., 121 F.2d 954, 957 (1941).” King v. St.
Vincent’s Hospital, 502 U.S. at 221. A determination of the
meaning “injury or disease” in sections 1110 and 1131 is
not required to determine the scope of the conditions for
which compensation shall be paid. Both statutes predicate
the payment of compensation for “resulting disabilities.”
The intent of these statutes is that compensation will be
paid by the government for “resulting disabilities,” which
are referred to by Congress as “defects, infirmities, or
disorders” in § 1111 and defined as “disease, injury, or
other physical or mental defect” in § 1701(1).

Congress began the text of § 1111 by clearly stating its
intention to provide a presumption of sound condition “For
the purposes of section 1110.” Congress stated that every
veteran shall be taken to have been in sound condition
when examined for service, “except as to defects, infirmi-
ties, or disorders noted at the time of the examination.”
The intent of Congress, in § 1111 is clear that the pre-
sumption of soundness must be applied to those “defects,
infirmities, or disorders,” not noted as such at the time of
the veteran’s entrance examination.”

* VAOPGCPREC 3-2003 (July 16, 2003) relying upon the legisla-
tive history of 38 U.S.C. § 1111, as well as a 1944 opinion of the Solicitor
of the Veterans Administration discussing Public Law 78-144, 72 Op.
Sol. 298 (Feb. 7, 1944), concluded that § 1111 requires VA to bear the
burden of showing the absence of aggravation in order to rebut the

(Continued on following page)

12

38 U.S.C. § 1111 plainly and unambiguously identifies
the conditions to which the presumption of soundness
applies as “defects, infirmities, or disorders.” The pre-
sumption of soundness therefore extends to every “defect,
infirmity, or disorder” not noted at entry to service. In
contrast, 38 U.S.C. §1153 applies to those conditions
noted at entrance to service, which necessarily are condi-
tions which are not subject to the presumption of sound-
ness provided for in 38 U.S.C. § 1111. These conditions are
necessarily the same “defects, infirmities, or disorders”
referred to in 38 U.S.C. § 1111.

_ The “harmonious interplay” and a “liberal construc-
ticn” of 38 U.S.C. §§ 1110, 1111, 1131 and 1153, reveals the
intent of Congress to include within the scope of com-
pensable disabilities every “defect, infirmity, or disorder.”
This construction is further supported by the language of
38 U.S.C. § 1153 in which Congress uses the term “disabil-
ity” and not the terms “injury or disease.” Further, it
follows that when Congress defined the term “disability”
in 38 U.S.C. § 1701(a) to mean a “disease, injury, or other
physical or mental defect” that such a definition is
consistent with an intent that the scope of disability

presumption of sound condition. The opinions of the Solicitor of the
Veterans Administration and the General Counsel of the Department of
Veterans Affairs clearly indicate that it was the intent of Congress in
enacting 38 U.S.C. § 1111 and the plain meaning of the language of the
statute provides that the presumption of soundness is rebutted only if
clear and unmistakable evidence establishes both that (1) the condition
existed prior to service and (2) the condition was not aggravated by
service. These opinions concluded that § 1111 requires the VA to bear
the burden of showing the absence of aggravation in order to rebut the
presumption of sound condition.

13

compensation would include every “defect, infirmity, or
disorder” within the meaning of “disability.”

This Court has noted that veterans benefits legisla-
‘tion is to be liberally construed for the benefit of those who
left private life to serve their country in its hour of great
need. See Boone v. Lightner, 319 U.S. 561, 575 (1943).
Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. at
285. Fishgold observed that our problem is to construe the
separate provisions of the Act as parts of an organic whole
and give each as liberal a construction for the benefit of
the veteran as a harmonious interplay of the separate
provisions permits. Fishgold v. Sullivan Drydock & Repair
Corp., 328 U.S. at 285. (emphasis added) Fishgold re-
viewed a statute designed “to protect the veteran in
several ways.” Fishgold, 328 U.S. at 284. The interpreta-
tion made by the Secretary in 38 C.F-.R. § 3.303(c) and
affirmed by the court of appeals, to exclude certain “inju-
ries or diseases” from disabilities for which compensation
will be paid is inconsistent with the organic whole and a
liberal construction for the benefit of the veteran of the
harmonious interplay of the separate statutory provisions.

The decision of the court of appeals did not construe
the separate provisions of the complete statutory scheme
as part of an organic whole and did not give to each as
liberal a construction for the benefit of the veteran as a
harmonious interplay of the separate provisions permits.
Instead, the court of appeals did as the Secretary had done
in promulgating 38 C.F.R. § 3.303(c): it provided a narrow
construction which discounted the interplay of the sepa-
rate statutory provisions.

14

CONCLUSION

For the foregoing reasons, the writ of certiorari should
be granted.

Respectfully submitted,

KENNETH M. CARPENTER
CARPENTER, CHARTERED
1525 S. Topeka Boulevard
P. O. Box 2099

Topeka, KS 66601-2099
(785) 357-5251

Attorney for Petitioner,
James J. Terry

App. 1

United States Court of Appeals
for the Federal Circuit

02-7416
JAMES J. TERRY,
Claimant-Appellant,
V.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of

Topeka, Kansas, argued for claimant-appellant.

Maureen A. Delaney, Attorney, Commercial Litigation
Branch, Civil Division, Department of Justice, of Washing-
ton, DC, argued for respondent-appellee. On the brief were
David M. Cohen, Director; Brian M. Simkin, Assistant
Director; and Allison Page, Trial Attorney. Of counsel on
. the brief were Richard J. Hipolit, Deputy Assistant Gen-
eral Counsel; and Martie S. Adelman, Attorney, Depart-
ment of Veterans Affairs, of Washington, DC. Of counsel
was James W. Poirier, Attorney, Department of Justice, of
Washington, DC.

Appealed from: United States Court of Appeals for
Veterans Claims

Judge Jonathan R. Steinberg
DECIDED August 27, 2003

Before NEWMAN, CLEVENGER, and SCHALL, Circuit
Judge.

SCHALL, Circuit Judge.

James J. Terry is a veteran of the United States Army.
In March of 1996, he filed a claim with the Department of

App. 2

Veterans Affairs (“VA”) Regional Office (“RO”) in Musko-
gee, Oklahoma, seeking compensation for _ service-
connected presbyopia, a condition of the eye. The RO
denied the claim and the Board of Veterans’ Appeals
(“Board”) affirmed. Terry v. Principi, No. SS 073 36 5238
(B.V.A. Sept. 30, 1999). In sustaining the RO’s decision,
the Board held that 38 C.F.R. § 3.303(c) barred Mr. Terry’s
claim.’ Id. The United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) affirmed the Board’s deci-
sion, rejecting Mr. Terry’s challenge to the validity of 38
C.F.R. § 3.303(c). Terry v. Principi, No. 99-2167, slip. op. at
2-3 (Vet. App. July 2, 2002). In so doing, the court relied
upon its previous decision in Winn v. Brown, 8 Vet. App.
510 (1996). Id. Mr. Terry now appeals the court’s decision.
We hold that 38 C.F.R. § 3.303(c) is valid and precludes
Mr. Terry’s claim for compensation for presbyopia. Accord-
ingly, we affirm the Veterans Court’s decision.

BACKGROUND
I. Factual Background

Mr. Terry served on active duty in the Army from
December of 1974 to May of 1983. When he entered the
Army, he underwent a medical enlistment examination.
No defect was noted in his vision at that time, nor were
any visual defects noted in an examination performed in
1979. However, Mr. Terry’s service medical records do
reveal a diagnosis of central serous retinopathy of the left

* All references are to statutes as set forth in the 2000 version of
the United States Code and to regulations as set forth in the 2002
version of the Code of Federal Regulations.

App. 3

eye.” In May of 1996, Mr. Terry’s eyes were examined at
the VA Medical Center in Oklahoma City, Oklahoma. The
examiner diagnosed Mr. Terry with presbyopia. As ex-
plained below, presbyopia is a “refractive error of the eye”
that develops with age.

II. Procedural History

In March of 1996, Mr. Terry filed a claim for service
connection for his presbyopia with the RO in Muskogee,
Oklahoma. The RO denied the claim on the ground that
the evidence failed to show a disability for which service
connection could be established. See Terry, No. SS 073 36
5238, slip op. at 2. The Board affirmed the RO’s denial of
the claim. Jd. at 9. The Board determined that presbyopia
“is a refractive error of the eye, which is a constitutional or
developmental abnormality, and is not a disability under
VA law.” Id. at 7. The Board concluded that 38 C.F.R.
§ 3.303(c) was a bar to Mr. Terry’s claim for service connec-
tion for presbyopia because the regulation provides that
“refractive error of the eye” is not a disease or injury
within the meaning of veterans’ benefits statutes. Id. at 9.
The Board therefore held that Mr. Terry was not entitled
to compensation for the condition. Id.

The Veterans Court subsequently affirmed the Board’s
decision. Terry, No. 99-2167, slip. op. at 3. In so doing, the
court rejected Mr. Terry’s challenge to the validity of 38

* Central serous retinopathy is localized detachment of the neural
retina. Dorland’s Illustrated Medical Dictionary 1567 (29th ed. 2000).

* We do not review, and the parties do not challenge, the Board’s
determination that presbyopia is a “refractive error of the eye.”

App. 4

C.F.R. § 3.303(c) by relying upon Winn v. Brown, 8 Vet.
App. 510 (1996). Id. at 2-3. In Winn, the court upheld the
validity of section 3.303(c) in the face of a challenge by a
veteran with a personality disorder. Winn, 8 Vet. App. at
515-16. Mr. Terry now appeals the decision of the Veterans
Court upholding 38 C.F.R. § 3.303(c) and affirming the
denial of his claim. On appeal, Mr. Terry urges that section
3.303(c) is invalid as applied to his claim for service
connection for presbyopia.

ANALYSIS
I. Jurisdiction and Standard of Review

Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292; Forshey v.
Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en banc).
We have “exclusive jurisdiction to review and decide any
challenge to the validity of any statute or regulation or
any interpretation thereof brought under [section 7292],
and to interpret constitutional and statutory provisions to
the extent presented and necessary to a decision.” 38
U.S.C. § 7292(c). Our authority extends to deciding all
relevant questions of law and we can set aside a regulation
or an interpretation of a regulation relied upon by the
Court of Appeals for Veterans Claims when we find it to be
“arbitrary, capricious, and an abuse of discretion, or
otherwise not in accordance with law; contrary to constitu-
tional right, power, privilege, or immunity; in excess of
statutory jurisdiction, authority, or limitations; or in
violation of a statutory right; or without observance of
procedure required by law.” Jones v. West, 194 F.3d 1345,
1349 (Fed. Cir. 1999); see 38 U.S.C. § 7292(d)(1). Our
authority does not extend to the ability to review factual
determinations or the application of a law or regulation to

~

App. 5

a particular set of facts, unless a constitutional issue is
presented. 38 U.S.C. § 7292(d)(2). No factual issues are
presented in this case. The sole issue on appeal is Mr.
Terrys challenge to the validity of 38 C.F.R. § 3.303(c).
Because Mr. Terry challenges the validity of a regulation,
we have jurisdiction pursuant to 38 U.S.C. § 7292. The
Veterans Court’s rejection of that challenge presents an
issue of law that we review de novo. Santana-Venegas v.
Principi, 314 F.3d 1293, 1296 (Fed. Cir. 2002).

II. Mr. Terry’s Challenge to the Validity
of 38 C.F.R. § 3.303(c)

On appeal, Mr. Terry argues that, to the extent it
prohibits compensation for “refractive error of the eye”
and, in particular, for presbyopia, 38 C.F.R. § 3.303(c) is
contrary to 38 U.S.C. §§1110, 1111, 1131, and 1153.
According to Mr. Terry, the VA Secretary exceeded his
authority under those statutes by promulgating section
3.303(c) to exclude visual “refractive error of the eye” from
disabilities for which compensation is payable. He urges
us to invalidate that portion of the regulation. The gov-
ernment responds that the VA’s interpretation of sections
1110, 1111, 1131, and 1153, as embodied in 38 C.F'R.
§ 3.303(c), should be given deference as a permissible
interpretation of the statutes by the agency charged with
their implementation. The government urges us to uphold
the validity of the regulation.

In reviewing an agency’s construction of a statute that
it administers, we address two questions, as required by
the Supreme Court’s decision in Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984). The first question is “whether Congress has
directly spoken to the precise question at issue.” Jd. at 842.

App. 6

If so, this court and the agency “must give effect to the
unambiguously expressed intent of Congress.” Jd. at 843.
If, however, Congress has not spoken directly to the issue
or if the statute is ambiguous with regard to that issue,
this court addresses the second question of whether the
responsible agency has rendered an interpretation that “is
based on a permissible construction of the statute.” Id.

We begin with the statutory language. Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975)
(The “starting point in every case involving construction of
a statute is the language itself.”). Sections 1110 and 1131
of Title 38 of the United States Code authorize the Secre-
tary of Veterans Affairs to provide compensation to a
veteran for disabilities that result from injuries or dis-
eases that occur in the line of duty during times of war
and during times of peace, respectively. Section 1110
provides as follows:

For disability resulting from personal injury
suffered or disease contracted in line of duty, or
for aggravation of a preexisting injury suffered or
disease contracted in line of duty, in the active
military, naval, or air service, during a period of
war, the United States will pay to any veteran
thus disabled and who was discharged or re-
leased under conditions other than dishonorable
from the period of service in which said injury or
disease was incurred, or preexisting injury or
disease was aggravated, compensation as pro-
vided in this subchapter [88 USCS §§1110 et
seq.], but no compensation shall be paid if the

App. 7

disability is a result of the veteran’s own willful
misconduct or abuse of alcohol or drugs.

38 U.S.C. § 1110.*

Sections 1110 and 1131 make it clear that if a disabil-
ity cannot be attributed to an “injury” or a “disease”
incurred or aggravated in the line of duty, the disability is
not compensable. We therefore must consider the meaning
of the terms “injury” and “disease” to determine Congress’
intent with respect to the scope of compensable disabili-
ties. These terms are not defined in Title 38. Thus, Con-
gress has not directly spoken to the precise question at
issue; nor has Congress specifically prohibited any particu-
lar definition of “injury” and “disease.” See Chevron, 467
U.S. at 843. In the absence of an express definition, we
presume that Congress intended to give these words their

* Section 1131 authorizes compensation for disabilities incurred
during times of peace. It provides as follows:

For disability resulting from personal injury suffered or
disease contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service, during
other than a period of war, the United States will pay to any
veteran thus disabled and who was discharged or released
under conditions other than dishonorable from the period of
service in which said injury or disease was incurred, or pre-
existing injury or disease was aggravated, compensation as
provided in this subchapter, but no compensation shall be
paid if the disability is a result of the veteran’s own willful
misconduct or abuse of alcohol or drugs.

38 U.S.C. § 1131.

* Title 38 does define the term “chronic disease” in 38 U.S.C.
§ 1101. However, the statutes at issue in this case do not use that term.

App. 8

ordinary meanings. Asgrow Seeds Co. v. Winterboer, 513
U.S. 179, 187 (1995).

Dorland’s Illustrated Medical Dictionary defines the
term “injury” as “harm or hurt; usually applied to damage
inflicted on the body by an external force.” Dorland’s
Illustrated Medical Dictionary 901 (29th ed. 2000). It
defines the term “disease” as “any deviation from or
interruption of the normal structure or function of a part,
organ, or system of the body as manifested by characteris-
tic symptoms and signs; the etiology, pathology, and
prognosis may be known or unknown.” Jd. at 511. These
definitions do not render the statute ambiguous. Conse-
quently, we are not faced with the situation in which
statutory language gives rise to interpretive doubt that
must be resolved in favor of the veteran. See Brown uv.
Gardner, 513 U.S. 115, 118 (1994). At the same time,
however, these definitions do not fill the gap left by the
statute with respect to the question of what kinds of
conditions qualify as injuries or diseases for purposes of
entitlement to veterans’ benefits. Congress made it clear
that the agency was to fill the gap left by the statute.
Pursuant to 38 U.S.C. § 501(a), the Secretary of Veterans
Affairs is authorized to “prescribe all rules and regulations
which are necessary or appropriate to carry out the laws
administered by the Department and are consistent with
those laws.” 38 U.S.C. §501(a). Under these circum-
stances, the foregoing definitions of “injury” and “disease”
serve as a framework within which we determine whether
the Secretary has rendered an interpretation that “is
based on a permissible construction of the statute.” Chev-
ron, 467 U.S. at 8438.

When Congress leaves room for agency interpretation
or expressly delegates policy making authority to the

App. 9

Secretary, the scope of judicial review is limited. Pauley v.
BethEnergy Mines, 501 U.S. 680, 696 (1991). Thus, we
must decide “(1) whether the statute unambiguously
forbids the Agency’s interpretation, and, if not, (2) whether
the interpretation for other reasons, exceeds the bounds of
the permissible.” Barnhart v. Walton, 535 U.S. 212, 218
(2002). In other words, the Secretary’s interpretation will
not be set aside unless it is “arbitrary, capricious, or
manifestly contrary to the statute.” Chevron, 467 U.S. at
844. We give substantial deference to the statutory inter-
pretation of an agency authorized to administer a statute.
Id.

In the challenged regulation, 38 C.F.R. § 3.303(c), the
VA excluded certain conditions, including “refractive error
of the eye,” from the terms “injury” and “disease.” Section
3.303(c) states in pertinent part as follows:

(c) Preservice disabilities noted in service.
There are medical principles so universally rec-
ognized as to constitute fact (clear and unmis-
takable proof), and when in accordance with
these principles existence of a disability prior to
service is established, no additional or confirma-
tory evidence is necessary ... Congenital or de-
velopmental defects, refractive error of the eye,
personality disorders and mental deficiency as
such are not diseases or injuries within the
meaning of applicable legislation.

38 C.F.R. § 3.303(c). We must determine, therefore,
whether this is a permissible construction by the VA of the
terms “injury” and “disease” in sections 1110 and 1131.

The VA based its exclusion of “refractive error of the
eye” on the fact that refractive errors of the eye, such as
presbyopia, are recognized in medical literature as being

App. 10

constitutional or developmental abnormalities. Presbyo-
pia, in particular, is caused by a physiological change in
the accommodation mechanism by which the focus of the
eye is adjusted for objects at different distances. Presbyo-
pia is described as “hyperopia and impairment of vision
due to advancing years or to old age; it is dependent on
diminution of the power of accommodation from loss of
elasticity of the crystalline lens, causing the near point of
distinct vision to be removed farther from the eye.”
Dorland’s Illustrated Medical Dictionary, supra, at 1453.
The fact that this condition is due to developmental
problems associated with aging rather than due to trauma
that was incurred during military service is a reasonable
basis for excluding “refractive error of the eye” from the
construction of the terms “injury” and “disease.” Addition-
ally, this exclusion is consistent with the definitions of
“injury” and “disease,” which require that the cause of the
disability be due to “damage inflicted on the body by an
external force,” id. at 901, or “any deviation from or
interruption of the normal structure or function of a part,
organ, or system of the body,” id. at 511. Presbyopia is not
due to either infliction, but is due to aging. Aging is not an
external force; nor is it a deviation from the normal
function of the body. Therefore, the interpretation adopted
by the Secretary in section 3.303(c) is not arbitrary, capri-
cious, or manifestly contrary to the statute. We therefore
hold that it represents a permissible construction of the
statute.

* Presbyopia manifests itself when one is required to move printed
material away from the eyes in order to be able to read it. See Daniel
Vaugh, M.D., Taylor Asbury, M.D., & Paul Riordan-Eva, FRCS,
FRCOphth, General Ophthalmology 74 (15th ed. 1999).

App. 11

Mr. Terry argues, however, that an otherwise reason-
able interpretation of a statute by the VA is impermissible
if the statute is not liberally construed in favor of the
veteran. See Gardner, 513 U.S. at 118 (stating that it is a
well-established rule of statutory construction that when a
statute is ambiguous, “interpretive doubt is to be resolved
in the veteran’s favor”). The argument is without merit.
The principle upon which Mr. Terry relies is a canon of
statutory construction that requires that resolution of
interpretive doubt arising from statutory language be
resolved in favor of the veteran.’ Jd. It does not affect the
determination of whether an agency’s regulation is a
permissible construction of a statute. See Nat’ Org. of
Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260
F.3d 1365, 1378 (Fed. Cir. 2001) (“Ordinarily at this
juncture in the analysis — where application of the usual
canons of statutory construction [i.e., canon to resolve
interpretive doubt in favor of the veteran and canon to
consider legislative history] push in opposite directions —
we would resort to the Chevron principle, which mandates
that we defer to an agency’s reasonable interpretation of
an ambiguous statute.”).

Mr. Terry further argues that 38 U.S.C. §§ 1110 and
1131 should be read in light of the statutory framework of
which they are a part, namely 38 U.S.C. §§ 1111 and 1153.
If that framework is considered, Mr. Terry urges, it be-
comes clear that Congress intended that veterans be
compensated for any pre-service disability that is aggra-
vated on active duty. When we construe a statute, we do so

” As noted above, the language of 38 U.S.C. §§ 1110 & 1131 is not
ambiguous. It does not give rise to interpretive doubt.

App. 12

in the setting of the statutory scheme of which it is a part.
Tyler v. Cain, 533 U.S. 656, 662 (2001) (stating that “we
interpret the words in their context and with a view to
their place in the overall statutory scheme”) (internal
quotation marks omitted). Therefore, we must determine if
the VA’s interpretation in section 3.303(c) is inconsistent
with 38 U.S.C. §§ 1111 & 1153.

Section 1111 of Title 38 relates to the presumption of
soundness that applies to all enrollees upon entrance to
the military. It provides as follows:

For the purposes of section 1110 of this title,
every veteran shall be taken to have been in
sound condition when examined, accepted, and
enrolled for service, except as to defects, infirmi-
ties, or disorders noted at the time of the exami-
nation, acceptance, and enrollment, or where
clear and unmistakable evidence demonstrates
that the injury or disease existed before accep-
tance and enrollment and was not aggravated by
such service.

38 U.S.C. § 1111.

Under section 1111, unless a defect, infirmity, or
disorder is noted during the induction physical examina-
tion, a presumption arises that the veteran’s health was
sound when he entered the service until the presumption
has been rebutted by clear and unmistakable evidence
that the injury or disease existed before acceptance and
was not aggravated by service. 38 U.S.C. § 1111; see Harris
v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000). If the pre-
sumption of soundness is properly rebutted, the veteran is
not entitled to service-connected disability benefits unless
he can show his injury or disease was aggravated by his
military service. Id. —

App. 13

As noted, no defect, infirmity, or disorder was detected
during Mr. Terry’s entry examination; therefore, he would
typically be entitled to the statutory presumption of sound
health, and the Secretary would need to produce clear and
unmistakable evidence that his presbyopia preexisted
service and was not aggravated by service. However,
presbyopia is a condition that would rarely be observed
during a medical entrance examination, because it gener-
ally develops around age forty, long after anyone enrolls in
the military. In 38 C.F.R. § 3.303(c), the VA found that
some principles are so well established “as to constitute
fact (clear and unmistakeable proof).” 38 C.F.R. § 3.303(c).
One such principle, which is based on accepted medical
evidence, is that refractive errors of the eye, such as
presbyopia, are conditions that are the result of the
normal aging process. The normal aging process starts
before military service begins. Consequently, the sequence
of events that results in refractive error of the eye always
precedes military service. It was reasonable for the VA to
conclude that the presumption of soundness is always
rebutted by the medical evidence with respect to refractive
error of the eye and that therefore refractive error of the
eye could be reasonably excluded from the terms “injury”
and “disease.”

bd

Mr. Terry nevertheless contends that Congress
decision to include the phrase “defects, infirmities, and
disorders” in section 1111 demonstrates that it intended
that the terms “injury” and “disease” be broadly inter-
preted. This argument is unpersuasive. The Veterans
Court logically disposed of it in Winn, 8 Vet. App. at 516,
and we today follow that decision. In Winn, the court faced
the issue of whether 38 C.F.R. § 3.303(c) is invalid because
it contradicts 38 U.S.C. § 1111. The court stated that,

App. 14

when sections 1110 and 1111 are read together, “the term
‘defect’ in section 1111 necessarily means a defect that
amounts to or arises from disease or injury.” Winn, 8 Vet.
App. at 516. The court noted that “[i]f the Court accepted
the appellant’s argument, any defect (in the unlimited
sense) not noted during an entry examination or proved
preexisting by clear and unmistakable evidence would
entitle a veteran to VA compensation.” Id. The court
concluded that it did not believe that Congress intended
the terms “injury” and “disease” to be so broadlv defined.
Id. We agree that Congress could not have intended to
include every defect, infirmity, and disorder within the
scope of compensable disabilities.

Finally, we must determine whether the VA’s interpre-
tation in section 3.303(c) is consistent with 38 U.S.C.
§ 1153. Mr. Terry argues that section 1153 requires that
the VA presume that a condition was aggravated by
military service if it increased in severity during service
unless there is a specific finding that the increase was the
natural progression of the condition. We reject this argu-
ment. Section 1153 provides as follows:

A preexisting injury or disease will be con-
sidered to have been aggravated by active mili-
tary, naval, or air service, where there is an
increase in disability during such service, unless
there is a specific finding that the increase in
disability is due to the natural progress of the
disease.

38 U.S.C. § 1153. Even if we assume, arguendo, that
presbyopia is a preexisting “injury” or “disease” for the
purposes of section 1153, the Secretary was reasonable in
excluding it in section 3.303(c) because the medical evi-
dence shows that the increase in presbyopia is always “due

App. 15

to the natural progress of the disease.” It results from the
normal aging process. Mr. Terry has not provided any
contrary evidence suggesting that presbyopia can be
caused by or aggravated by events associated with mili-
tary service, other than aging. Absent any such evidence,
we cannot conclude that the Secretary’s interpretation of
the terms “injury” and “disease” is contrary to 38 U.S.C.
§ 1153.

CONCLUSION

For the reasons stated above, the decision of the Court
of Appeals for Veterans Claims is affirmed.

AFFIRMED

App. 16

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

NOTICE OF ENTRY OF
JUDGMENT ACCOMPANIED BY OPINION

OPINION FILED AND JUDGMENT ENTERED:
08/27/03

The attached opinion announcing the judgment of the
court in your case was filed and judgment was entered on
the date indicated above. The mandate will be issued in
due course.

Information is also provided about petitions for
rehearing and petitions for rehearing en banc. The ques-
tions and answers are those frequently asked and an-
swered by the Clerk’s Office.

Costs are taxed against the Appellant(s) under Rule
39. The party entitled to costs is provided a bill of costs
form and an instruction sheet with this notice.

The parties are encouraged to stipulate to the costs. A
bill of costs will be presumed correct in the absence of a
timely filed objection.

Costs are payable to the party awarded costs. If costs
are awarded to the government, they should be paid to the
Treasurer of the United States. Where costs are awarded
against the government, payment should be made to the
person(s) designated under the governing statutes, the
court’s orders, and the parties’ written settlement agree-
ments. In cases between private parties, payment should
be made to counsel for the party awarded costs or, if the
party is not represented by counsel, to the party pro se.
Payment of costs should not be sent to the court. Costs
should be paid promptly.

. :

App. 17

If the court also imposed monetary sanctions, they are
payable to the opposing party unless the court’s opinion
provides otherwise. Sanctions should be paid in the same
way as costs.

Regarding exhibits and visual aids: Your attention is
directed to FRAP 34(g) which states that the clerk may
destroy or dispose of the exhibits if counsel does not
reclaim them within a reasonable time after the clerk
gives notice to remove them. (The clerk deems a reason-
able time to be 15 days from the date the final mandate is
issued.

/s/ Jan Horbaly
JAN HORBALY
Clerk

cc: KENNETH M. CARPENTER
MAUREEN A. DELANEY

TERRY V DVA, 02-7416
CVA-99-2197

App. 18

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

02-7416
JAMES J. TERRY,
Claimant-Appellant,
v.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,
Respondent-Appellee.

ORDER
(Filed Oct. 23, 2003)
Before NEWMAN, Circuit Judge, CLEVENGER, Circuit
Judge, and SCHALL, Circuit Judge.

A petition for rehearing having been filed by the
APPELLANT,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the
same hereby is, DENIED.

The mandate of the court will issue on October 30,
2003.

FOR THE COURT,

/s/ Jan Horbaly
Jan Horbaly
Clerk

App. 19

Dated: October 23, 2003

cc: KENNETH M. CARPENTER
MAUREEN A. DELANEY

TERRY V DVA, 02-7416
CVA-99-2197

KKKKKKKAKKKKKKK KKK KKK KKK KKK KKK KKK

*
Note: Pursuant to Fed. Cir. R. 47.6, this order is not ,
citable as precedent. It is a public record. a

+t & & &

KKKKKKKAKKKKKKKKRKKKKKKKKKAKKKKKKHK *

App. 20

02-7416

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

JAMES J. TERRY,
Claimant-Appellant,
V.

ANTHONY J. PRINCIPI,
Secretary of Veteran Affairs,

Respondent-Appellee.

APPEAL FROM UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS IN 99-2167
JUDGE JONATHAN R. STEINBERG

APPELLANT’S PETITION FOR REHEARING
AND ADDENDUM

KENNETH M. CARPENTER
CARPENTER, CHARTERED
1525 S.W. Topeka Blvd.

P.O. Box 2099

Topeka, KS 66601-2099

(785) 357-5251

Attorney for Appellant,
October 9, 2003 James J. Terry

CERTIFICATE OF INTEREST

Pursuant to Federal Circuit Rules 28(a)(1) and 47.4,
counsel, Kenneth M. Carpenter, for Claimant-Appellant

certifies the following:

App. 21

1. The full name of every party or amicus represented by
me is:

James J. Terry.

2. The name of the real party in interest represented by
me is:

James J. Terry.

3. The parent companies, subsidiaries and affiliates that
have issued shares to the public, of the party or
amicus curiae represented by me are:

None.

4, The name of all law firms and the partners or associ-
ates that appeared for the party or amicus now repre-
sented by me in the trial court of agency or are
expected to appear in this Court are:

Kenneth M. Carpenter
Carpenter Chartered
P.O. Box 2099

Topeka, KS 66601
(785) 357-5251

TABLE OF CONTENTS

PAGE
CE RLIPICALTE OF INTERES osccscscccscccsnsesssssevcccoses i
EMRE SPE TFET RATED ven snedecesssencsserenssovetetnsonecsyions il
SAARPAa IE BAAS FEUER 0 AGE vo nccsescvescnescnssesasivsinesernsens iil
SEAL RAEN L OOF COUNSEL: ..ccesccsccensssvsssorscssenscsvens iv
POINTS OF LAW TO BE CONSIDERED .................
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SP RIRITE etavvderaindnnevunnknnscebeavetetandbabiaadiciamnptamouns 7
CERTIFICATES OF SERVICES .....scscscessssseveecsscesescnses 8

App. 22

TABLE OF AUTHORITIES
PAGE
CASE AUTHORITY
Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct.

Ey Bi ag WF BAe FOIE canivinnssccenniensssenentinerscnesincsinanetie 6
Brown v. Gardner, 513 U.S. 115 (1994)... ee. v, 2,7
Fishgold v. Sullivan Drydock & Repair Corp.,

ae A re I ea isin cnnenctinssvansertanscceaniumventcaineatl v, 2,6, 7
King v. St. Vincent’s Hospital, 502 U.S. 215

CINE Diixceccaveseusienidcaaruinsnaecisnevacamaseasemaniana nana 3, 4, 7
Massachusetts v. Morash, 490 U.S. 107, 115

[RN wiih nicuauaiainiioessencivandeuatanniienadeasinacuaventievdnenanyaetaaaaaae 4
NLBEB v. Federbush Co., 121 F.2d 954, 957 (CA2

FG ih isvssesxisherencinsiiinssitaaaaasaae tantalum 4
Winn v. Brown, 8 Vet.App: 510 (1996).......... ccc eeeee enone 4,5

STATUTES
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Be RF BATE iktinvvinntesrtintcslaneaese eee 5
Be AAs © Bb ini socnisseccrscnnensssnencenseannetanndaaann 3-5
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ae a 6 FE Bl rtinndineedianen ae v, 1, 3-6
REGULATIONS
DO C.F FS. TGCAE) CI coccicinescccscevicimionnaaamnia 2
ee es A eD osiaibnsdssessas cnderecaceatsaneteieneanaseanaanae 6

App. 23

STATEMENT OF COUNSEL

Based on my professional judgment, I believe this
matter requires rehearing by the Court because the Court
overlooked the definition of the term “disability” in 38
U.S.C. § 1701(1).

Furthermore, in light of this definition, the Court did
not construe the separate provisions of the statutory
scheme as part of an organic whole and did not give to
each as liberal a construction for the benefit of veterans as
the harmonious interplay of the separate provisions
permit as contemplated by Fishgold v. Sullivan Dry-
dock & Repair Corp., 328 U.S. 275 (1946).

This Court mistakenly limited the Brown v. Gard-
ner, 513 U.S. 115 (1994), canon of construction to statu-
tory interpretation. Gardner is not limited to statutory
interpretation.

Kenneth M. Carpenter,
Attorney for Appellant,
James J. Terry

02-7416

UNITED STATES COURT OF APPEALS FOR 1
THE FEDERAL CIRCUIT

JAMES J. TERRY,
Claimant-Appellant,

V.

ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.

pe

App. 24

APPELLANT’S PETITION FOR REHEARING

Pursuant to Rule 40 of the Federal Rules of Appellate
Procedure and the Federal Circuit Rules, Kenneth M.
Carpenter respectfully moves for a rehearing of the August
27, 2003 decision of the Court affirming the decision of the
U.S. Covrt of Claims for Veteran Appeals (“CAVC”) in the
case of James J. Terry, Vet.App. No. 99-2167.

POINTS OF LAW TO BE CONSIDERED

Appellant respectfully submits that in reaching its
August 27, 2003 decision, the Court overlooked the defini-
tion of the term “disability” in 38 U.S.C. § 1701(1). The
fact that Congress had defined “disability” was noted by
the Supreme Court of the United States in Brown uv.
Gardner, 513 U.S. 115 (1994). The definition of “disabil-
ity” disposes of the matter at issue and represents an
expression of the intent of Congress concerning the mean-
ing of the terms “disease” or “injury.”

In Mr. Terry’s case, this Court mistakenly limited the
Gardner canon of construction to statutory interpreta-
tion. Gardner is not limited to statutory interpretation.
Gardner reviewed the Secretary's interpretation of the
statute, his regulation. 38 C.F.R. §3.158(c)(3) (19983).
Gardner, 513 U.S. at 116.

Furthermore, in light of this definition, this Court did
not construe the separate provisions of the statutory
scheme as part of an organic whole and did not give to
each as liberal a construction for the benefit of veterans as
the harmonious interplay of the separate provisions
permit as contemplated by Fishgold v. Sullivan Dry-
dock & Repair Corp., 328 U.S. 275 (1946).

App. 25

ARGUMENT

The Court’s decision of August 27, 2003 was premised
upon the failure of Congress to define the terms “injury” or
“disease” in Title 38. Terry v. Principi, No. 02-7416, Slip
Op. p. 6. The Court concluded that Congress must be
presumed to have intended to give these words their
ordinary meanings because Congress had not directly
spoken to the precise question at issue. Terry, Slip Op. p.
6. Mr. Terry submits that the Court’s decision overlooks
the definition provided by Congress for the term “disabil-
ity” in 38 U.S.C. §1701(1). Mr. Terry asserts that the
predicate for the award of service-connected compensation
under 38 U.S.C. §§ 1110 and 1131 is based upon whether a
veteran suffers from a “resulting disability.” In light of the
definition of “disability” provided by Congress, the premise
of the Court’s decision is flawed.

The Supreme Court noted in Brown v. Gardner,
supra., that “injury” is employed elsewhere in the veterans
benefits statutes as an instance of the neutral term “dis-
ability” appearing within a series whose other terms
exemplify debility free from any connotation of fault. See,
38 U.S.C. § 1701(1) (2000) (“The term ‘disability means a
disease, injury, or other physical or mental defect”).
Gardner, 513 U.S. at 118. Mr. Terry submits that the
Court’s focus upon the terms “injury” and “disease” were
misplaced because Congress did define the term “disabil-
ity” as used in 38 U.S.C. §§ 1110 and 1131. The special
canons of construction for veterans benefits statutes
require the consideration of the harmonious interplay of
the statutory provisions and the intent of Congress. Thus,
the scope of those conditions for which compensation to
veterans would be paid for “resulting disabilities,” is

ee

App. 26

expressed by Congress’ definition of “disability” as mean-
ing any “disease, injury, or other physical or mental
defect.” The meaning of statutory language, plain or not,
depends on context. King v. St. Vincent’s Hospital, 502
U.S. 215 (1991) at 221. The cardinal rule is that a statute
is to be read as a whole, see Massachusetts v. Morash,
490 U.S. 107, 115 (1989).

The Supreme Court has observed that “Words are not
pebbles in alien juxtaposition; they have only a communal
existence; and not only does the meaning of each inter-
penetrate the other, but all in their aggregate take their
purport from the setting in which they are used... NLRB
v. Federbush Co., 121 F.2d 954, 957 (CA2 1941) (L. Hand,
J.) (quoted in Shell Oil, supra, 488 U.S. at 25, n. 6, 109
S.Ct. at 281, n. 6).” King, 502 U.S. at 221. Mr. Terry
contends that the meaning of “injury” and “disease,” in
sections 1110 and 1131 should be read in the context of the
intent of Congress to provide compensation to veterans for
post-service “resulting disabilities.” It was incorrect for
the Court to resort to the “ordinary meaning” of the terms
injury and disease, rather than look to the context in
which those terms were used in the statutes. The purpose
or goal of 38 U.S.C. §§ 1110 and 1131 is to indicate that
compensation will be provided by the government for
“resulting disabilities,” from a “disease, injury, or other
physical or mental defect,” incurred in or aggravated by
service.

Congress did define the term “disability” at 38 U.S.C.
§ 1701(1) as meaning a “disease, injury, or other physical
or mental defect.” The Court’s decision concluded that
sections 1110 and 1131 make it clear that if a disability
cannot be attributed to an “injury” or a “disease” incurred
or aggravated in the line of duty, the disability is not

App. 27

compensable. Terry, Slip Op. p. 6. The Court agreed with
the Veterans Court in Winn v. Brown, 8 Vet.App. 510
(1996), that Congress could not have intended to include
every defect, infirmity and disorder within the scope of
compensable disabilities. Terry, Slip Op. p. 12. Yet, when
Congress “for the purposes of section 1110,” described the
presumption of sound condition in 38 U.S.C. §1111,
Congress stated that every veteran shall be taken to have
been in sound condition when examined for service,
“except as to defects, infirmities, or disorders noted at the
time of the examination.” Congress thus explained that
the presumption of soundness applies to “defects, infirmi-
ties, or disorders,” by indicating that such conditions must
be noted at the time of the entrance examination.

Therefore, the “harmonious interplay” and a “liberal
construction” of 38 U.S.C. §§ 1110 and 1131 with 38 U.S.C.
§ 1111, required that the “resulting disability” in §§ 1110
and 1131 are found to be consistent with the definition of
“disabilities” in § 1701(1). Congress intended to include
every defect, infirmity, and disorder within the meaning
of “disability.” Additionally, when considering the whole
statutory context, the intent of Congress is demonstrated
in the language of 38 U.S.C. § 1153 in which Congress
does not use either the term “injury” or “disease” but
rather uses the term “disability” — that term having been
defined by Congress to mean a “disease, injury, or other
physical or mental defect.” See 38 U.S.C. § 1701(1).

The Supreme Court has noted that veterans benefits
legislation is to be liberally construed for the benefit of
those who left private life to serve their country in its hour
of great need. See, Boone v. Lightner, 319 U.S. 561, 575,
63 S.Ct. 1223, 1231, 87 L.Ed. 1587. Fishgold v. Sullivan
Drydock & Repair Corp., 328 U.S. 275 at 285 (1946).

App. 28

Fishgold observed that our problem is to construe the
separate provisions of the Act as parts of an organic whole
and give each as liberal a construction for the benefit of
the veteran as a harmonious interplay of the separate
provisions permits. Fishgold, 328 U.S. at 285. (Emphasis
added) Fishgold reviewed a statute designed “to protect
the veteran in several ways.” Fishgold, 328 U.S. at 284.
But the interpretations made by the Secretary to exclude
certain diseases and injuries from “resulting disabilities,”
is inconsistent with the organic whole and the liberal
construction for the benefit of the veteran of the harmoni-
ous interplay of the separate statutory provisions.

The decision of the Court did not construe the sepa-
rate provisions of the complete statutory scheme as parts
of an organic whole and did not give to each as liberal a
construction for the benefit of the veteran as a harmonious
interplay of the separate provisions permits. Instead, the
Court did as the Secretary had done in promulgating 38
C.F.R. § 3.303(c): it provided a narrow construction which
discounted the interplay of the separate statutory provi-
sions. The Court rejected as without merit Mr. Terry’s
argument “that an otherwise reasonable interpretation of
a statute by the VA is impermissible if the statute is not
liberally construed in favor of the veteran.” Terry, Slip Op.
p. 9. In light of 38 U.S.C. §1701(1) and Fishgold, Mr.
Terry's argument should be reconsidered by the Court.

CONCLUSION

Mr. Terry respectfully submits that the Court’s deci-
sion failed to properly consider and apply the special
canons of construction affirmed by the Supreme Court in
Brown v. Gardner, King v. St. Vincent’s Hospital, and

App. 29

Fishgold v. Sullivan Drydock & Repair Corp., all
supra. Based upon the foregoing arguments and authori-
ties, Mr. Terry respectfully requests that the Court vacate
its decision of August 27, 2003, and reconsider its opinion
in this matter in light of the special canons of construction
mandated by the Supreme Court of the United States for
the interpretation of veterans benefits statutes.

Respectfully submitted,

Kenneth M. Carpenter, #08012
CARPENTER CHARTERED
P.O. Box 2099

Topeka, Kansas 66612

(785) 357-5251

Attorney for Appellant

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the original and
fifteen copies of the above and foregoing document has
[sic] been shipped by overnight delivery to the Clerk and
two copies to the below named counsel for Appellee on the
9th day of October, 2003, addressed to:

Maureen A. Delaney ge
Commercial Litigation Branch
Department of Justice

1100 L Street, N.W., Room 7000
Washington, D.C. 20530

Kenneth M. Carpenter

App. 30

ADDENDUM
TABLE OF CONTENTS
Item Description Page

1. United States Court of Appeals for the Fed-
eral Circuit Decision dated August 27, 2003.. 1-14

* * *

App. 31

Designated for electronic publication only

UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS

No. 99-2197
JAMES J. TERRY, APPELLANT,
V.

ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before STEINBERG, Judge.
ORDER

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

The appellant, through counsel, seeks review of a
September 30, 1999, decision of the Board of Veterans’
Appeals (Board) that, inter alia, denied Department of
Veterans Affairs service connection for presbyopia. Record
at 3, 9. (Presbyopia is “hyperopia and impairment of vision
due to ... old age”. DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 1349 (28th ed. 1994).) In his brief, the appel-
lant requested initial en banc review for the purpose of
overruling the Court’s holding in Winn v. Brown, 8
Vet.App. 510, 515-16 (1996), which upheld the validity of
38 C.F.R. §3.303(c), a regulation that provides that
“[c]ongenital or developmental defects, refractive error of
the eye, personality disorders[,] and mental deficiencies as
such are not diseases or injuries” for which a veteran may
be awarded service connection, 38 C.F.R. § 3.303(c) (2001).
Brief at 14. The Court denied that motion for initial full
Court review, and the appeal is now before the single
judge for consideration. The Court notes that the appellant
makes no argument regarding five other claims in the

|

App. 32

Board decision now on appeal; thus, the Court considers
those claims abandoned as part of this appeal. See Ford v.
Gober, 10 Vet.App. 531, 535-36 (1997); Degmetich v.
Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d 1328
(Fed. Cir. 1997).

“Where there is an earlier panel or en banc opinion,
we apply a rule that in a subsequent case, a panel or
single judge may not render a decision which conflicts
materially with such earlier panel or en banc opinion.”
Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992). Because
Winn upheld the validity of 38 C.FR. § 3.303(c) and
because the en banc Court in this case denied initial en
banc review to revisit that opinion, the Court (at both the
single-judge and panel levels) is now bound by Winn and
must apply 38 C.F‘R. § 3.303(c); the Court agrees with the
parties that that regulation prohibits the award of service
connection for the appellant’s presbyopia because that
condition is a refractive error of the eye.

On consideration of the foregoing, it is

‘ORDERED that the September 30, 1999, Board
decision is AFFIRMED.

DATED: JUL 2 2002

BY THE COURT:

/s/ Jonathan-R. Steinberg
JONATHAN R. STEINBERG
Judge

App. 33

Copies to:

Kenneth M. Carpenter, Esq.
P.O. Box 2099
Topeka, KS 66601-2099

General Counsel (027)
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0958%3A1. Public record. Not legal advice.