Love v. McDonough

106 F.4th 1361

Charles J. LOVE, Jr., Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2023-1465

United States Court of Appeals, Federal Circuit

Decided: July 11, 2024

Appeal from the United States Court of Appeals for Veterans Claims in No. 21-1265, Chief Judge Margaret C. Bartley.

Kent A. Eiler, Carpenter Chartered, Topeka, KS, argued for claimant-appellant. Also represented by John D. Niles.

Reta Emma Bezak, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Brian M. Boynton, Patricia M. McCarthy, Loren Misha Preheim; Brian D. Griffin, Richard Stephen Huber, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Dyk, Schall, and Hughes, Circuit Judges.

Hughes, Circuit Judge.

Appellant Charles J. Love, Jr. appeals a decision from the United States Court of Appeals for Veterans Claims holding that the procedural protections set out in 38 C.F.R. § 3.344 do not apply to disabilities rated under diagnostic code 7528 for service-connected prostate cancer. Because we agree with the Veterans Court that the diagnostic code provides specific procedures that the agency must follow upon cessation of cancer treatment, the general provisions of § 3.344 do not apply.

I

A

We begin with an overview of the relevant statutes and regulations. The Secretary of Veterans Affairs is required by 38 U.S.C. § 1155 to promulgate a rating schedule for disabilities. In relevant part, the statute states:

The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The schedule shall be constructed so as to provide ten grades of disability . . . upon which payments of compensation shall be based . . . .

38 U.S.C. § 1155.

Under this authority, the Secretary promulgated 38 C.F.R. § 4.115b, titled "[r]atings of the genitourinary system—diagnoses." Section 4.115b provides diagnostic codes (DCs) and corresponding disability ratings for certain diseases of the reproductive and urinary systems. The diagnostic code at issue in this appeal, DC 7528, is housed in § 4.115b and states that "[m]alignant neoplasms of the genitourinary system"—i.e., prostate cancer—shall be rated at 100 percent disabling. A Note accompanying the diagnostic code provides:

Note—Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.

38 C.F.R. § 4.115b.

"[T]he provisions of § 3.105(e)," as referenced by the Note, relate to reductions in disability evaluations that would lead to a decrease or discontinuance of disability payments. 38 C.F.R. § 3.105(e). The regulation requires that, for such reductions, "a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons." Id. The regulation also states that the veteran "will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." Id. If the veteran does not present additional evidence, compensation will be reduced "effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires." Id. The statutory authority for promulgation of § 3.105(e) is 38 U.S.C. § 5112(b)(6). See 38 C.F.R. § 3.105(e).

The final regulation central to this appeal is 38 C.F.R. § 3.344, titled "[s]tabilization of disability evaluations." The regulation provides additional procedural steps that the agency must follow before it may reduce or discontinue ratings that have continued at the same level for five years or more. See Hanser v. McDonough, 56 F.4th 967, 972-74 (Fed. Cir. 2022) (interpreting § 3.344(c) and holding that "[f]or a veteran to be entitled to the protections of (a) and (b), the veteran's disability rating must have continued at the same level for five years or more"). Three procedural requirements for a proper reduction are relevant in this appeal: (1) "[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction," (2) "[r]atings on account of diseases subject to temporary or episodic improvement . . . will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated," and (3) "the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life." 38 C.F.R. § 3.344(a). Section 3.344 was promulgated under 38 U.S.C. § 501(a), which is the Secretary's source of general rulemaking authority. 38 U.S.C. § 501(a) ("The Secretary has authority 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 . . . ."); see also 38 C.F.R. § 3.344.

B

Mr. Love served on active duty in the United States Army from January 1968 to March 1971. In 2006, the Department of Veterans Affairs (VA) granted Mr. Love service connection for prostate cancer based on his exposure to the herbicide Agent Orange during his time serving in Vietnam. Effective September 29, 2005, Mr. Love received a disability rating of 100 percent under DC 7528 for his prostate cancer. In 2007, Mr. Love's rating under DC 7528 was reduced to 20 percent following successful treatment for the cancer. In 2009, Mr. Love's rating was once again increased to 100 percent because of a recurrence of the cancer. Mr. Love retained the 100 percent rating for active prostate cancer for the next decade. In May 2018, Mr. Love received further treatment for his cancer, and his 100 percent rating was continued based on "[a]ctive malignancy." In December 2018, after an examination by a VA physician, Mr. Love's cancer was found to be in remission following treatment.

In February 2019, the Veterans Benefits Administration Regional Office (RO) notified Mr. Love that it proposed decreasing his disability rating for prostate cancer from 100 percent to 20 percent because his cancer was in remission and the residual complications from the cancer supported a 20 percent rating. Mr. Love challenged the proposed reduction, arguing, among other things, that the VA was prohibited from reducing his rating without following the heightened procedural requirements of 38 C.F.R. § 3.344. Despite Mr. Love's protest, the RO sustained its earlier proposed rating reduction and, in September 2019, informed Mr. Love that, based on the timing requirements of 38 C.F.R. §§ 3.105(e) and 3.501, the reduction would be effective December 1, 2019. Mr. Love appealed the RO's decision to the Board of Veterans' Appeals (Board), and the Board upheld the RO's decision. Mr. Love then appealed to the Court of Appeals for Veterans Claims (Veterans Court). See Love v. McDonough, No. 21-1265, 2022 WL 16549073 (Vet. App. Oct. 31, 2022).

Before the Veterans Court, Mr. Love again argued that the reduction of his disability rating was improper because the RO failed to apply the procedural protections of § 3.344. The Veterans Court found that its previous decision, Foster v. McDonough, 34 Vet. App. 338 (2021), was controlling and that ratings under DC 7528 were not entitled to the protections of § 3.344. Based on this reasoning, the Veterans Court affirmed the Board's decision, holding that the discontinuance of Mr. Love's 100 percent rating was proper and that Mr. Love was not entitled to a residual rating of higher than 20 percent for residuals of prostate cancer under DC 7528.

C

Because Mr. Love's arguments on appeal turn on his contention that Foster was wrongly decided, we briefly review that decision as well. Like Mr. Love, Mr. Foster was granted service connection for prostate cancer under DC 7528, based on his exposure to Agent Orange while serving in Vietnam. Foster, 34 Vet. App. at 341. Following treatment, Mr. Foster's 100 percent rating was reduced to 10 percent for residuals from the cancer. Id. Mr. Foster appealed the reduction to the Board and then to the Veterans Court. Id. at 341-42. The legal question before the Veterans Court in Mr. Foster's appeal was whether DC 7528 is subject to the procedural protections of 38 C.F.R. § 3.343. Section 3.343 is titled "[c]ontinuance of total disability ratings" and provides additional procedural steps that the agency must follow before it may reduce or discontinue a rating of 100 percent for a service-connected disability. 38 C.F.R. § 3.343. Like § 3.344 at issue in this appeal, § 3.343 was promulgated under the Secretary's general rulemaking authority of 38 U.S.C. § 501(a). See 38 C.F.R. §§ 3.343, 3.344. The regulations are housed in the same subpart of the regulatory code and they contain similar requirements that the agency must follow before it may properly reduce a disability rating. Among other things, both regulations require a showing of "material improvement . . . under the ordinary conditions of life" before a rating can be reduced. See 38 C.F.R. §§ 3.343, 3.344.

In interpreting the regulations, the Foster court explained that "[t]he plain language of DC 7528 provides step-by-step instructions for how prostate cancer and its residuals are to be rated." Foster, 34 Vet. App. at 345. It explained:

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