Martinez-Bodon v. McDonough

28 F.4th 1241

Luis A. MARTINEZ-BODON, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2021-1328

United States Court of Appeals, Federal Circuit.

Decided: March 15, 2022

Christian Arthur McTarnaghan, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also represented by Barbara J. Cook, April Donahower, Zachary Stolz ; Megan Brittney Hall, Disabled American Veterans, Cold Spring, KY.

Meen Geu Oh, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Brian M. Boynton, Martin F. Hockey, Jr. ; Jonathan Krisch, Y. Ken Lee, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Reyna, Clevenger, and Hughes, Circuit Judges.

Hughes, Circuit Judge.

Luis Martinez-Bodon appeals the decision of the United States Court of Appeals for Veterans Claims affirming a Board of Veterans' Appeals decision that Mr. Martinez-Bodon is not entitled to service connection for a mental condition. Because we agree with the Veterans Court that 38 C.F.R. §§ 4.125(a) and 4.130 require a DSM–5 diagnosis as a precondition to compensate a mental condition, we affirm.

I

Mr. Martinez-Bodon served on active duty in the U.S. Army from August 1967 to March 1969. In April 2016, he filed a claim for benefits for diabetes and for anxiety secondary to his diabetes. At his Veterans Affairs psychiatric examination in September 2016, Mr. Martinez-Bodon reported: "I can't sleep well, my right eye trembles too much and that bothers me and I get very anxious about it." Appx31. He denied having other symptoms. The VA examiner found that these symptoms did not meet the "criteria for a mental condition as per DSM–5" and thus concluded that she could not establish a relationship between Mr. Martinez-Bodon's diabetes and anxiety. Appx29, 34. The VA therefore granted him service connection for diabetes but denied him service connection for a mental condition.

Mr. Martinez-Bodon appealed that denial to the Board of Veterans' Appeals, but the Board reached the same result. He then appealed to the United States Court of Appeals for Veterans Claims, arguing that even without a formal diagnosis, his symptoms constitute a disability for service-connection purposes under this court's definition of "disability" in Saunders v. Wilkie , 886 F.3d 1356, 1363 (Fed. Cir. 2018). The Veterans Court rejected Mr. Martinez-Bodon's argument and affirmed the Board's decision, interpreting two regulations, 38 C.F.R. §§ 4.125(a) and 4.130, "to require a DSM–5 diagnosis as a precondition to compensate mental conditions." Martinez-Bodon v. Wilkie , 32 Vet. App. 393, 401 (Vet. App. 2020) ( Veterans Court Decision ). Mr. Martinez-Bodon appeals.

II

Under 38 U.S.C § 7292(a), we have jurisdiction to review a Veterans Court decision "with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation ... or any interpretation thereof ... that was relied on by the Court in making the decision." We review statutory and regulatory interpretations of the Veterans Court de novo. Gazelle v. Shulkin , 868 F.3d 1006, 1009 (Fed. Cir. 2017). Unless an appeal from a Veterans Court decision presents a constitutional issue, we lack jurisdiction to review "a challenge to a factual determination," or "a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C § 7292(d)(2).

A

We first address the role of Saunders in this case. In Saunders , we held that pain that reaches the level of a "functional impairment of earning capacity" could constitute a "disability" under 38 U.S.C. § 1110. Saunders , 886 F.3d at 1367–68. Before the Veterans Court, Mr. Martinez-Bodon argued that requiring a formal diagnosis of a mental condition to establish service connection is inconsistent with that holding. Specifically, Mr. Martinez-Bodon asserted "that the holding in Saunders extends to more than just pain and ‘encompasses any undiagnosed disability that results in functional loss.’ " Veterans Court Decision at 396.

Saunders does not apply in these circumstances. As we recently explained in Larson v. McDonough , " Saunders articulated a definition of ‘disability’ for § 1110 purposes that is distinct from and not coextensive with disabilities listed on the rating schedule." 10 F.4th 1325, 1329 (Fed. Cir. 2021). The question raised in Saunders was whether conditions not on the rating schedule may still be considered for service connection purposes under § 1110. That is not the question raised here. Here, we have a specific ratings table for mental conditions, § 4.130, and the veteran is seeking a rating under that table. Because §§ 4.125 and 4.130 speak precisely to the issue raised, they must govern. To the extent Mr. Martinez-Bodon asks us to review the actual contents of that ratings table, we lack jurisdiction to do so. See Wanner v. Principi , 370 F.3d 1124, 1129 (Fed. Cir. 2004) ; Wingard v. McDonald , 779 F.3d 1354, 1357 (Fed. Cir. 2015).

B

Mr. Martinez-Bodon argues that the Veterans Court wrongly interpreted 38 C.F.R. §§ 4.125(a) and 4.130, and we have jurisdiction to review the Board's interpretation of those regulations. We must determine whether § 4.125(a) and the rating schedule in § 4.130 require a mental condition to be formally diagnosed in order for compensation to be awarded. We hold that they do.

We begin with the relevant regulations. "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." Vazquez-Claudio v. Shinseki , 713 F.3d 112, 115 (Fed. Cir. 2013). The preamble to the schedule of ratings for mental disorders in § 4.130 reads:

The nomenclature employed in this portion of the rating schedule is based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM–5) (see § 4.125 for availability information). Rating agencies must be thoroughly familiar with this manual to properly implement the directives in § 4.125 through § 4.129 and to apply the general rating formula for mental disorders in § 4.130.

38 C.F.R. § 4.130 (2020) (emphasis added). The preamble emphasizes the centrality of the DSM–5 to diagnosing and rating mental disorders for service connection and requires examiners to be familiar with its contents. Section 4.130 then goes on to list diagnostic codes for over 30 mental disorders and provides a general rating formula for mental disorders, as excerpted below:

Rating
Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).	30
Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.	10
A mental condition has been formally diagnosed , but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

Id. (emphasis added)

38 C.F.R. § 4.125, entitled "Diagnosis of mental disorders," reads:

(a) If the diagnosis of a mental disorder does not conform to DSM–5 or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM–5), American Psychiatric Association (2013), is incorporated by reference into this section ....

38 C.F.R. § 4.125(a) (2020) (emphasis added).

Section 4.125(a) must be read in conjunction with § 4.130 because "regulations that precede the rating schedule for [a condition] explain how to arrive at proper evaluations under the [diagnostic codes] appearing in the disability rating schedule." Petitti v. McDonald , 27 Vet. App. 415, 424 (2015). Thus, § 4.125(a) instructs that a veteran must first have a mental disorder diagnosis consistent with the DSM–5 before the veteran can proceed to rating under § 4.130. Again, both regulations emphasize the importance of the DSM–5 to diagnosis and rating, incorporating the manual by reference and indicating that a DSM–5 diagnosis is required for service connection.

The zero percent rating level explicitly requires that "[a] mental condition has been formally diagnosed." § 4.130. Mr. Martinez-Bodon argues that the absence of that language from the other rating levels means that no diagnosis is required above the 0% level. However, the ratings regime must be read as a whole. And the structure of the entire ratings table indicates that each higher level includes the same baseline requirement: a diagnosis. Each rating level is based on severity, with symptoms and occupational and social impairments increasing in severity with each step up in rating. As the Veterans Court reasoned, "[t]his upwardly cascading nature of the rating criteria, when read in the context of the introductory paragraph's emphasis on the DSM–5, plainly supports that § 4.130 requires a DSM–5 diagnosis in order to rate mental conditions at every rating level." Veterans Court Decision at 400.

Mr. Martinez-Bodon's interpretation would mean that "a veteran would have to meet a more stringent requirement—a DSM–5 diagnosis—for a noncompensable rating than he or she would for a 30, 50, or 100% rating." Id. We agree with the Veterans Court that such an absurd result should be avoided. See United States v. Turkette , 452 U.S. 576, 580, 101...