Nielson v. SHINSEKI

United States Court of Appeals
for the Federal Circuit
__________________________

THOMAS M. NIELSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________

2009-7129
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 05-2311, Judge Robert N.
Davis.
___________________________

Decided: June 7, 2010
___________________________

KIRSTEN V.K. ROBBINS, Goodwin Procter LLP, of
Washington, DC, argued for claimant-appellant. With
her on the brief were FREDERICK C. SCHAFRICK and
RICHARD A. ARCULIN.

MEREDYTH COHEN HAVASY, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With her on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
NIELSON v. DVA 2

Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel was ALLISON KIDD-MILLER, Trial Attorney.
__________________________

Before RADER, Chief Judge, * DYK, and PROST, Circuit
Judges.
DYK, Circuit Judge.
Thomas M. Nielson (“Nielson”) appeals from a final
judgment of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) denying him entitlement to
Department of Veterans Affairs (“VA”) outpatient dental
treatment and related dental appliances because the
removal of his teeth during service was not due to a
“service trauma” under 38 U.S.C. § 1712(a)(1)(C). Nielson
v. Shinseki, 23 Vet. App. 56 (2009). We hold that a “ser-
vice trauma” under the statute is an injury or wound
produced by an external physical force during the per-
formance of military duties, and does not include the
intended result of proper medical treatment. Here, the
VA found that Nielson’s teeth were properly extracted due
to periodontal infection. Accordingly, we affirm.
BACKGROUND
Nielson served on active duty in the United States Air
Force from September 1950 to September 1954, and from
March 1955 to October 1957. During his service in the
Korean War, and when he was on active duty at a forward
post in Korea, all but three of Nielson’s teeth were ex-
tracted over the course of approximately one month, from
August to September 1952. He received no anesthesia
during the procedures and no pain killers after the proce-
dures. While nearly all of Nielson’s service records from

* Randall R. Rader assumed the position of
Chief Judge on June 1, 2010.
3 NIELSON v. DVA

the time are missing, his handwritten diary entries
suggest that he suffered from a severe periodontal infec-
tion. Nielson’s remaining three teeth were extracted in
May 1953 after he returned to the United States. He was
subsequently provided with dentures. Nielson’s 1954
separation examination report documents that all of his
teeth were missing.
In April 1991, Nielson submitted a claim to the VA
seeking service connection for the loss of his teeth. He
also sought a set of new dentures under what is now 38
U.S.C. § 1712(a)(1)(C). This statute provides veterans
with outpatient dental care and related dental appliances
for “service-connected dental condition[s] or disabilit[ies]
due to combat wounds or other service trauma.” 38
U.S.C. § 1712(a)(1)(C). The VA granted Nielson service
connection for the loss of his teeth and assigned a non-
compensable disability rating. However, the VA denied
Nielson outpatient dental treatment because it found that
his teeth extractions were not due to “combat dental
injuries” or a “service trauma.” Nielson, 23 Vet. App. at
57. The Board of Veterans’ Appeals (“Board”) affirmed
that decision, and Nielson appealed. The Veterans Court
remanded the matter, ordering the Board to “consult
with” VA General Counsel on the definition of “service
trauma” and its application to Nielson’s claim. Id. at 58.
On remand, the VA General Counsel rendered an
opinion stating that “from a legal or medical perspective
trauma is an injury,” and held that “[f]or the purposes of
determining whether a veteran has . . . eligibility for
dental care under [38 U.S.C. § 1712(a)(1)(C) and 38 C.F.R.
§ 17.161(c)], the term ‘service trauma’ does not include the
intended effects of treatment” provided during the vet-
eran’s military service. VA Gen. Coun. Prec. No. 5-97
(Jan. 22, 1997); see VAOPGCPREC 5-97, 62 Fed. Reg.
15,566 (Apr. 1, 1997). The Board then found that Nielson
NIELSON v. DVA 4

had not engaged in combat with the enemy during his
time in Korea, that his teeth were removed most probably
due to periodontal infection, and that the military den-
tists had not engaged in malpractice in extracting
Nielson’s teeth. The Board, relying on the VA General
Counsel opinion, concluded that the removal of Nielson’s
teeth did not constitute a “service trauma” and Nielson
was not entitled to outpatient dental treatment. 1
Nielson again appealed to the Veterans Court. The
Veterans Court considered the plain meaning of “service
trauma” and the context of 38 U.S.C. § 1712(a)(1)(C), and
held that the meaning of “service trauma” is “an injury or
wound violently produced while the injured or wounded is
in the armed forces.” Nielson, 23 Vet. App. at 60. The
court also agreed with the Board and VA General Counsel
that “service trauma” does not encompass an intended
treatment for periodontal disease. Because Nielson had
not shown that his dental condition resulted from “an
injury or wound violently produced,” the court affirmed
the Board’s decision. Nielson timely appealed.
DISCUSSION
We have jurisdiction to review decisions of the Veter-
ans Court “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 (other than a determination
as to a factual matter) that was relied on by the Court in

1 In a separate decision issued on the same day,
the Board reopened Nielson’s claim of service connection
for residuals of malnutrition relating to the removal of his
teeth and remanded the issue for development of addi-
tional evidence. Nielson’s claim of total disability based
on individual unemployability was placed in abeyance
awaiting resolution of the former matter. These claims,
and any related claims for outpatient dental treatment,
remain pending before the VA.
5 NIELSON v. DVA

making the decision.” 38 U.S.C. § 7292(a); see Forshey v.
Principi, 284 F.3d 1335, 1359 (Fed. Cir. 2002) (en banc)
(“We hold that we have jurisdiction over . . . issues of
interpretation if the Court of Appeals for Veterans Claims
elaborated the meaning of a statute or regulation and the
decision depended on that interpretation . . . .”). Under
the statute as amended in 2002, see Veterans Benefits Act
of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat. 2820,
2832 (codified at 38 U.S.C. § 7292(a)), we have jurisdiction
to review all legal questions decided by the Veterans
Court. See Szemraj v. Principi, 357 F.3d 1370, 1374–75
(Fed. Cir. 2004). We review a claim of legal error in a
decision of the Veterans Court without deference. Id. at
1372.
This appeal requires us to construe the term “service
trauma” in 38 U.S.C. § 1712(a)(1)(C), which provides:
(a)(1) Outpatient dental services and treat-
ment, and related dental appliances, shall be fur-
nished under this section only for a dental
condition or disability—
...
(C) which is a service-connected dental
condition or disability due to combat
wounds or other service trauma, or of a
former prisoner of war . . . .
Nielson argues that the Veterans Court erred in constru-
ing the term “service trauma” in § 1712(a)(1)(C). Under
Nielson’s interpretation, the extraction of nearly all of a
veteran’s teeth during his time of service is a “service
trauma.” The government responds that “service trauma”
does not include the intended result of proper medical
treatment provided by the military. We agree with the
government that 38 U.S.C. § 1712(a)(1)(C) is not so broad
NIELSON v. DVA 6

as to include the intended results of proper medical
treatment provided by the military.
The statute does not define “service trauma.” When
terms are not defined, it is a basic principle of statutory
interpretation that they are deemed to have their ordi-
nary meaning. Am. Tobacco Co. v. Patterson, 456 U.S. 63,
68 (1982); Perrin v. United States, 444 U.S. 37, 42 (1979).
For that meaning, it is appropriate to consult dictionaries.
See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91–92
(2006); Lamar v. United States, 241 U.S. 103, 113 (1916).
The current edition of Webster’s at the time of the stat-
ute’s passage defined “trauma” first as simply “[a]n injury
or wound, or the resulting condition.” Webster’s New
International Dictionary of the English Language 2696
(unabr. 2d ed. 1948) (“Webster’s Second”). It defined an
“injury” as “[d]amage or hurt done to or suffered by a
person or thing,” id. at 1280, and a “wound” as “[a]n
injury to the body of a person or animal, esp. one caused
by violence, by which the continuity of the covering, as
skin, mucous membrane, or conjunctiva, is broken,” id. at
2956. Shortly after the statute’s passage, Webster’s
updated the primary definition of “trauma” to read: “an
injury or wound to a living body caused by the application
of external force or violence.” Webster’s Third New Inter-
national Dictionary 2432 (unabr. 1961); see also Black’s
Law Dictionary 1671 (4th ed. 1951) (defining “trauma” as
“[a] wound; any injury to the body caused by external
violence”); Stedman’s Medical Dictionary 1416 (18th rev.
ed. 1953) (defining “trauma” first as “[a] wound, an injury
inflicted, usually more or less suddenly, by some physical
agent”).
Under these circumstances, we think that the prevail-
ing definition of “trauma” at the time the statute was
enacted was “an injury or wound produced by an external
physical force.” The pulling of teeth is an act of force that
7 NIELSON v. DVA

could fit within that definition. We do not, however, think
that Congress in § 1712(a)(1)(C) intended to use the word
“trauma” in this broad sense; nor do we think it reason-
able to conclude that Congress intended to include proper
dental treatment designed to remedy an injury or disease
to be within the phrase “service trauma.” This is so for
two reasons.
First, the language of the statute itself suggests that
an expansive reading of the term “trauma” is inappropri-
ate. The word “trauma” does not stand alone in the
statute. It is part of the phrase “service-connected dental
condition or disability due to combat wounds or other
service trauma.” 38 U.S.C. § 1712(a)(1)(C). Congress has
chosen to limit the types of injuries that fall under the
statute to only a subset of service-connected dental condi-
tions—that is, those involving “service trauma.” Constru-
ing “service trauma” broadly to include nearly any injury
suffered while serving in the armed forces, even the
intended results of proper medical treatment, would make
the use of the word “service” superfluous, as it would be
subsumed by the former category of service-connected
conditions. 2 See Forest Grove Sch. Dist. v. T.A., 129 S. Ct.
2484, 2499 (2009) (“[O]ne of the most basic interpretive
canons [is] that [a] statute should be construed so that
effect is given to all its provisions, so that no part will be

2 A service-connected disability is a disability
“incurred or aggravated . . . in line of duty in the active
military, naval, or air service.” 38 U.S.C § 101(16); Haas
v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008). A disabil-
ity is “incurred [or aggravated] in line of duty [if the] . . .
injury was suffered or disease contracted[] in active
military, naval, or air service, whether on active duty or on
authorized leave.” 38 U.S.C. § 105(a) (emphasis added);
see Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir.
2004) (holding that “service-connected” and “incurred in
line of duty” mean the same thing).
NIELSON v. DVA 8

inoperative or superfluous, void or insignificant . . . .”
(quoting Corley v. United States, 129 S. Ct. 1558, 1560
(2009)) (alterations in original)).
To ascertain the meaning of the phrase “other service
trauma,” we look to the interpretive canon of ejusdem
generis. “Under the rule of ejusdem generis, which means
‘of the same kind,’ where an enumeration of specific
things is followed by a general word or phrase, the gen-
eral word or phrase is held to refer to things of the same
kind as those specified.” Micron Tech., Inc. v. United
States, 243 F.3d 1301, 1308 (Fed. Cir. 2001) (quoting
Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392
(Fed. Cir. 1994)). Even “where a general term follows one
expressly set forth specific term,” as here, application of
the rule is appropriate. Airflow Tech., Inc. v. United
States, 524 F.3d 1287, 1292 (Fed. Cir. 2008). Congress’s
use of “combat wounds or other service trauma” suggests
that it intended to include only injuries sustained during
the performance of military duties. See, e.g., Webster’s
Second, supra, at 2288 (defining “service” as “[o]f or
pertaining to one of the services”). It is also unreasonable
to believe that Congress would have considered the in-
tended results of proper medical treatment to be “of the
same kind” as an injury sustained during combat.
Second, 38 U.S.C. § 1712(a)(1)(C) does not stand alone
in the overall statutory scheme.
It is a “fundamental canon of statutory construc-
tion that the words of a statute must be read in
their context and with a view to their place in the
overall statutory scheme.” Davis v. Michigan
Dept. of Treasury, 489 U.S. 803, 809 (1989). A
court must therefore interpret the statute “as a
symmetrical and coherent regulatory scheme,”
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995),
9 NIELSON v. DVA

and “fit, if possible, all parts into an harmonious
whole,” FTC v. Mandel Brothers, Inc., 359 U.S.
385, 389 (1959).
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000). A related provision, 38 U.S.C. § 1151, sheds
light on the meaning of § 1712(a)(1)(C). In the context of
§ 1151, both the Supreme Court and Congress have
recognized that the intended result of proper medical
treatment is not itself an “injury.” Prior to 1996, § 1151
entitled veterans to VA compensation for “an injury, or an
aggravation of an injury, [that occurs] as the result of
hospitalization, medical or surgical treatment, or the
pursuit of a course of vocational rehabilitation” supplied
by the VA. 38 U.S.C. § 1151 (1994), amended by Depart-
ment of Veterans Affairs and Housing and Urban Devel-
opment, and Independent Agencies Appropriations Act,
1997, Pub. L. No. 104-204, § 422(a), 110 Stat. 2874, 2926–
27 (1996) (“VA Appropriations Act”). In Brown v. Gard-
ner, the Supreme Court stated that “[i]t would be unrea-
sonable . . . to believe that Congress intended to
compensate veterans for the necessary consequences of
treatment to which they consented (i.e., compensating a
veteran who consents to the amputation of a gangrenous
limb for the loss of the limb).” 513 U.S. 115, 119 n.3
(1994). The Court’s example is precisely analogous to the
extraction of Nielson’s teeth here. Indeed, when Congress
amended § 1151 in 1996, it specified that only disabilities
caused by medical treatment that involved “carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault” would qualify. See VA Appro-
priations Act, 110 Stat. at 2926–27.
Given that the term “trauma” in § 1712(a)(1)(C) is de-
fined as an “injury” in contemporaneous dictionaries, the
construction of “injury” to exclude proper medical treat-
ment suggests a similar construction of “trauma.” This
NIELSON v. DVA 10

interpretation is contrary to any construction of “service
trauma” in § 1712(a)(1)(C) that includes the intended
results of proper medical treatment.
Thus, we hold that “service trauma” in 38 U.S.C.
§ 1712(a)(1)(C) means an injury or wound produced by an
external physical force during the service member’s
performance of military duties. This definition excludes
the intended result of proper medical treatment, and is
consistent with prior cases in which the VA has found a
“service trauma.” 3 We do not, however, suggest that an
unintended result of medical treatment due to military
negligence or malpractice could not be a “service trauma”
under § 1712(a)(1)(C), and the government at oral argu-
ment agreed that injuries resulting from malpractice
could be a “service trauma,” depending upon the facts of
the case.
Notwithstanding Nielson’s contention, our approach is
not contrary to the Supreme Court’s mandate that “inter-
pretive doubt is to be resolved in the veteran’s favor.” See
Brown, 513 U.S. at 118; Nat’l Org. of Veterans’ Advocates,
Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1378 (Fed.
Cir. 2001). The mere fact that the particular words of the
statute—that is, “service trauma”—standing alone might
be ambiguous does not compel us to resort to the Brown
canon. Rather, that canon is only applicable after other

3 See, e.g., No. 96-48 881A, 2009 WL 1274689
(Bd. Vet. App. Mar. 11, 2009) (injuring teeth when hit in
mouth by parachute cord); No. 06-28 330A, 2008 WL
5514423 (Bd. Vet. App. Nov. 26, 2008) (biting cherry pit
and fracturing tooth); No. 04-03 335, 2008 WL 5511627
(Bd. Vet. App. Nov. 5, 2008) (chipping tooth by hitting on
underside of truck); No. 07-20 409, 2008 WL 4954915 (Bd.
Vet. App. Sept. 9, 2008) (fracturing teeth due to fall down
hill); No. 06-32 262, 2008 WL 3583586 (Bd. Vet. App.
June 3, 2008) (breaking teeth due to fall off ladder).
11 NIELSON v. DVA

interpretive guidelines have been exhausted, including
Chevron. 4 Here, applying other interpretive tools, we
conclude that § 1712(a)(1)(C) is not ambiguous.
One final matter requires attention. Nielson argues
that even if tooth extraction would not ordinarily be a
“service trauma,” a “service trauma” can be the psycho-
logical stress resulting from the pulling of teeth without
anesthesia. We reject that construction as well. Under
the only fair reading of the statute, a “trauma” must be a
physical injury. As noted above, the phrase “combat
wound or other service trauma” in § 1712(a)(1)(C) indi-
cates that a “service trauma” must be similar to a combat
wound. It is clear that “service trauma” refers to a physi-
cal injury suffered during service, not a psychological
event. Moreover, the loss of Nielson’s teeth was not “due
to” the psychological trauma of having his teeth extracted
without anesthesia; it was “due to” the extraction of his
teeth. See 38 U.S.C. § 1712(a)(1)(C). And, once again, the

4 See Terry v. Principi, 340 F.3d 1378, 1383–84
(Fed. Cir. 2003) (finding no interpretive doubt requiring
the application of Brown following consideration of plain
language of statute and Chevron analysis); Nat’l Org. of
Veterans’ Advocates, 260 F.3d at 1378 (turning to Chevron
after noting that legislative history and Brown canon
pushed in opposite directions); Jones v. West, 136 F.3d
1296, 1299 & n.2 (Fed. Cir. 1998) (noting that Brown not
applicable because statute was clear when read in con-
junction with another provision); see also Sears v. Prin-
cipi, 349 F.3d 1326, 1331–32 (Fed. Cir. 2003) (“The
appellant argues . . . that Chevron deference is inappro-
priate in veterans’ cases such as this one, because any
interpretive doubt in the context of veterans’ benefits
statutes is to be resolved in the veterans’ favor. . . . We do
not agree.” (citation omitted)); cf. Sursely v. Peake, 551
F.3d 1351, 1355–57 & n.5 (Fed. Cir. 2009) (turning to
Brown after other interpretive guidelines did not resolve
ambiguity).
NIELSON v. DVA 12

tooth extraction without anesthesia is excluded because it
was the intended result of what was, under the circum-
stances, proper medical treatment.
In the present case, the Board found that military
dentists extracted Nielson’s teeth most probably due to
periodontal infection, and that there was no evidence of
malpractice in doing so. As the removal of Nielson’s teeth
was the intended result of the medical treatment, he did
not suffer a “service trauma” under 38 U.S.C.
§ 1712(a)(1)(C), and he is thus not entitled to outpatient
dental treatment and related dental appliances. 5
AFFIRMED
COSTS
No costs.

5 Those veterans with non-compensable service-
connected dental conditions or disabilities that are not
covered under § 1712(a)(1)(C), such as Nielson, can still
avail themselves of 38 U.S.C. § 1712(a)(1)(B), which does
not specify the manner in which the condition or disability
occurred, and requires only that the veteran meet certain
requirements such as length of service and timeliness of
application. See also 38 C.F.R. § 17.161(b). Nielson,
however, did not submit his application within the allot-
ted period. Thus, his only recourse was to submit a claim
under the more restrictive § 1712(a)(1)(C). See Nielson,
23 Vet. App. at 60.