United States Court of Appeals
for the Federal Circuit
__________________________
DWIGHT L. READ,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7100
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 07-3461, Judge Robert N.
Davis.
__________________________
Decided: June 22, 2011
__________________________
DORIS JOHNSON HINES, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, of Washington, DC,
argued for claimant-appellant. With her on the brief was
RONALD L. SMITH.
SHELLEY D. WEGER, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
2 READ v. DVA
and MARTIN F. HOCKEY, JR. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel
and DANA RAFFAELLI, Attorney, United States Depart-
ment of Veterans Affairs.
__________________________
Before NEWMAN, CLEVENGER, and LINN, Circuit Judges
LINN, Circuit Judge.
Dwight L. Read (“Read”) appeals from the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”), holding that a 2007 Board of Veter-
ans’ Appeals (“Board”) decision changing the situs of
Read’s disability from one Muscle Group to another was
not a severance of Read’s service connection in violation of
38 U.S.C. § 1159. Read v. Shinseki, No. 07-3461, 2009
WL 3367647 (Vet. App. Oct. 21, 2009) (Table) (“Read”).
For the reasons set forth below, this court affirms.
BACKGROUND
During World War II, the Veteran’s Administration,
now known as the Department of Veterans Affairs (“VA”),
often granted service connection for disabilities “without
properly checking records and in many instances ap-
proved service connection when it was not warranted.”
Miscellaneous Compensation Legislation: Hearing on H.R.
113 and H.R. 660 Before the Subcomm. on Compensation
and Pensions of the H. Comm. On Veterans Affairs, 86th
Cong., 2d Sess. 2208, 2199 (Statement of H.R. 660 Author
Rep. Frank E. Smith). In 1954, the VA began a review of
over one million claims of service connected injury, in
which it increased or decreased thousands of disability
ratings and severed service connection for thousands
more. In taking remedial action, the VA severed service
connection for many veterans years after it was granted,
making it difficult or impossible to challenge the sever-
ance, especially given the passage of time and the often
READ v. DVA 3
incomplete nature of World War II military records then
available. This left affected veterans without recourse or
compensation. Id.
To balance the VA’s need to investigate whether the
grant of service connection was appropriate against the
veterans’ need for protection of long-standing benefits,
Congress passed 38 U.S.C. § 1159, which provides that:
Service connection for any disability or
death granted under this title which has
been in force for ten or more years shall
not be severed . . . except upon a showing
that the original grant of service connec-
tion was based on fraud or it is clearly
shown from military records that the per-
son concerned did not have the requisite
service or character of discharge.
Congress intended by this statute to “merely freeze[] the
determination of service connection, that is . . . the finding
by the Veterans’ Administration that the disability was
incurred or aggravated by military service.” S. Rep. No.
86-1394, at 1 (1960).
Read served in the United States Army from July
1967 to July 1969. In February 1968, Read sustained a
shell fragment wound to the right thigh, which was
described, during treatment, as a “through and through
gunshot wound.” The entry and exit wounds were su-
tured, but one became infected and was reopened to be
cleaned. Read sustained a permanent scar as a result of
the injury.
In 1995, Read sought service connection for a “right
thigh gunshot wound, shrapnel wounds back of right
shoulder and forehead, and PTSD [(post-traumatic stress
disorder)].” On June 8, 1995, the VA regional office
4 READ v. DVA
(“RO”) granted service connection for PTSD, and for
residuals related to the fragment wound to the right thigh
and forehead, but denied the presence of any injury to the
right shoulder. The RO assigned a 30 percent rating for
PTSD and 0 percent ratings for the scarring to the right
thigh and forehead. Read appealed, and his rating was
increased to 10 percent under Diagnostic Code 5313 for
“RESIDUALS, GUNSHOT WOUND, RIGHT THIGH.”
Diagnostic Code 5313, authorized under 38 U.S.C.
§ 1155 as one of a series of ratings categories, is described
in 38 C.F.R. § 4.73 as follows:
Group XIII. Posterior thigh group. Ham-
string complex of 2 joint muscles. (1) Bi-
ceps femoria; (2) semimembranosus; (3)
semitendinosus (Function: Extension of
hip and flexion of knee. Outward and in-
ward rotation of flexed knee. Acting with
rectus femoria and Sartorius (see XIV, 1,
2) synchronizing simultaneous flexion of
hip and knee and extension of hip and
knee by belt-over-pulley action at knee
joint.
Read appealed to the Board, citing an inability “to keep
up with work requirements where you have to stand &
work, for long periods of time,” and pain in his leg. When
Read appealed to the Board, he was given an orthopedic
examination by Dr. Frost on December 18, 1996. Dr.
Frost noted the scar and the “pain in [Read’s] inner
thigh,” but could not “identify any loss of muscle.” He
noted the following: “IMPRESSION: 1. residuals of gun-
shot wound, inner medial proximal thigh right.” The VA
maintained Read’s 10 percent disability rating under
Diagnostic Code 5313 for “residuals, gunshot wound, right
thigh.” On March 20, 2002, the VA again maintained
READ v. DVA 5
Read’s 10 percent rating for “residuals of a gunshot
wound to the right thigh.” The Board affirmed.
Read appealed to the Veterans Court, asserting that
“[t]he Board committed error as a matter of law when it
failed to assist [Read] . . . [by failing to] provide[ him] with
a medical examination that determines all of the muscle
groups effected [sic] by his [gunshot wound].” The Veter-
ans Court vacated and remanded for the VA to provide a
“muscle examination that addresses specifically the
nature and extent of any muscle injuries that resulted
from the gunshot wound to [Read’s] right thigh.” Read v.
Nicholson, No. 02-2091, slip. op. at 2 (Vet. App. Feb. 17,
2005). The Veterans Court specifically noted that “al-
though several examinations previously have been con-
ducted, the examination reports do not reflect specifically
which muscle groups are involved in the appellant’s
gunshot wound residuals.” Id.
On December 20, 2005, after a physical examination
of Read’s muscles, the VA examiner answered the remand
order as follows: “The muscle group is group XV that is
involved. It is the examiner’s opinion that his impair-
ment would be mild to moderate weakness of the right
lower extremity.” On December 27, 2005, the VA main-
tained Read’s 10 percent disability rating for “residuals of
gunshot wound right thigh.” The VA report noted the
sections of the Code of Federal Regulations relevant to
muscles groups XIII, XIV, and XV, and the sections deal-
ing with the determinations of the rating and the disabil-
ity. The VA report further noted: “[t]he examiner
indicates that only muscle group XV is involved. The
examiner opines that impairment would be mild to mod-
erate weakness of the right lower extremity.” (emphasis
added). The Board then remanded to the RO, requiring a
formal rating decision with the appropriate Diagnostic
Code selected.
6 READ v. DVA
In the final set of decisions that led to this appeal, the
RO continued Read’s 10 percent disability rating for
“residuals fragment wound, right thigh.” The RO noted:
Since January 1995, date of receipt of your
claim, this disability has been rated under
diagnostic code 5313 for disability affect-
ing Muscle Group XIII without medical
inquiry as to specific muscle group af-
fected by said wound in service. This di-
agnostic code was chosen based on your
complaints, symptoms, and findings. Dur-
ing the course of your appeal, VA exam
was conducted on 11-17-05, at which time
examiner identified the specific muscle
group affected as XV. . . .
Muscle group affected is reported as XV. . .
Formal rating action is hereby taken to
properly and accurately rate your residu-
als fragment wound right thigh under DC
5315 rather than 5313, based on VA exam
report of 11-17-05 stating actual muscle
group affected by the wound in service is
Muscle Group XV. . . . The rating criteria
is the same whether DC 5313 or DC 5315
is used. Thus no change in benefits re-
sults.
The Board affirmed, including a fact-finding that
“[t]he veteran sustained a through and through gunshot
wound to the right thigh which resulted in moderate
injury to Muscle Group XV.” The Veterans Court also
affirmed, rejecting Read’s argument that the change in
Diagnostic Code to represent an injury to Muscle Group
XV instead of Muscle Group XIII was an impermissible
severance of service connection to his disability to Muscle
READ v. DVA 7
Group XIII, which was protected under 38 U.S.C. § 1159.
Read, 2009 WL 3367647, at *1.
DISCUSSION
This court reviews questions of statutory and regula-
tory interpretation without deference. Hogan v. Peake,
544 F.3d 1295, 1297 (Fed. Cir. 2008). We may not review
the Veterans Court’s fact-finding or its application of law
to fact. Collaro v. West, 136 F.3d 1304, 1307 (Fed. Cir.
1998) (citing 38 U.S.C. § 7292(d)(2)).
The only question on appeal is whether the “service
connection” for a “disability” protected under 38 U.S.C.
§ 1159 is severed when the VA assigns to an injury a
different Diagnostic Code than originally noted.
In Collaro, this court noted the “five common ele-
ments to a veteran’s application for benefits: [1] status as
a veteran, [2] the existence of disability, [3] a connection
between the veteran’s service and the disability [(i.e.
service connection)], [4] the degree of the disability, and
[5] the effective date of the disability.” 136 F.3d at 1308.
On its face, 38 U.S.C § 1159 protects only element [3]:
“service connection for any disability or death granted
under this title which has been in force for ten or more
years shall not be severed.” (emphasis added). Service
connection is defined as follows: “The term ‘service-
connected’ means, with respect to disability or death, that
such disability was incurred or aggravated . . . in line of
duty in the active military, naval, or air service.” 38
U.S.C § 101(16). The statute further defines “non-service-
connected” to mean, “with respect to disability or death,
that such disability was not incurred or aggravated . . . in
line of duty in the active military, naval, or air service.”
38 U.S.C. § 101(17). Thus, to sever service connection is
to conclude that a particular disability previously deter-
mined to have been incurred in the line of duty was
8 READ v. DVA
incurred otherwise. The statute is not directed to element
[2], “the existence of disability,” see Collaro, 136 F.3d at
1308. Moreover, the legislative history shows a focus on
the connection between the disability and the service, not
on the fact of the disability. See S. Rep. No. 86-1394, at 1
(1960) (“[The statute] merely freezes the determination of
service connection, that is to say the finding by the Veter-
ans’ Administration that the disability was incurred or
aggravated by military service.”).
In contrast, the Diagnostic Code scheme is most
closely related to element [4], “the degree of the disabil-
ity.” The VA is authorized to establish Diagnostic Codes
as a corollary to its authority under 38 U.S.C § 1155 to
adopt a ratings schedule. “The diagnostic code numbers
appearing opposite the listed ratable disabilities are
arbitrary numbers for the purpose of showing the basis of
the evaluation assigned and for statistical analysis in the
Department of Veterans Affairs.” 38 C.F.R. § 4.27.
Here, the extent of the Board’s action was to identify
for the first time the specific situs of Read’s disability so
as to determine the Diagnostic Code that properly corre-
lates the benefit to which Read is entitled and the injury
he incurred. Because § 1159 does not protect the fact of a
disability, as discussed above, the change in the determi-
nation of the applicable Diagnostic Code likewise is
unprotected. Thus, there is no violation of § 1159 by a
determination that the situs of Read’s disability for pur-
poses of determining the correct Diagnostic Code in his
case is Muscle Group XV and not Muscle Group XIII.
Even if § 1159 does protect the fact of a disability, to
prevail, Read must show that the change in situs effec-
tively determined that he had no disability in Muscle
Group XIII. This he cannot do, because regardless of the
situs of Read’s disability, his disability remains the same
and remains service connected.
READ v. DVA 9
Read argues that the disability he incurred is specifi-
cally tied to the Muscle Group diagnosed as affected, and
that the change in diagnosis of the affected Muscle Group
from Muscle Group XIII to Muscle Group XV severed the
service connection for the disability to Muscle Group XIII.
In other words, he contends that because he was, but is no
longer, service connected for a disability to Muscle Group
XIII, he has established a violation of 38 U.S.C. § 1159.
The government responds that “disability” should be
“broadly defined in a common sense manner as the effect
on the functional impairment that results from an in-
service injury or disease,” Oral Arg. at 22:18-32, available
at http://www.cafc.uscourts.gov/oral-argument-recordings/
2010-7100/all, or more compactly as “residuals of a gun-
shot wound to the right thigh.” Br. of Gov’t 9. The gov-
ernment argues that because the same disability was
involved in both the initial disability determination—
without a specific diagnosis of Muscle Group XIII—and
the later specific identification of Muscle Group XV, the
change in Diagnostic Code did not sever anything. This
court agrees with the government.
First, although the statute does not define “disability,”
the regulations define disability of the musculoskeletal
system as “primarily the inability, due to damage or
infection in parts of the system, to perform the normal
working movements of the body with normal excursion,
strength, speed, coordination and endurance.” 38 C.F.R.
§ 4.40. This definition leaves little room for Read’s argu-
ment that the disability must be tied directly to a particu-
lar muscle group. Instead, the disability for which service
connection is protected is more generally associated with
the veteran’s inability to perform certain acts. Read’s
singular disability of pain and weakness in his right thigh
are equally attributable to a situs of disability in Muscle
Group XV or in Muscle Group XIII. Moreover, 38 C.F.R.
§ 4.55 specifically limits the relevance of Muscle Groups
to the rating context, thus precluding a definition of
10 READ v. DVA
disability based on the identification of the Muscle Group
involved. 38 C.F.R. § 4.55 (“For rating purposes, the
skeletal muscles of the body are divided into 23 muscle
groups in 5 anatomical regions.” (emphasis added)).
Second, as discussed above, the purpose of 38 U.S.C.
§ 1159 was to protect veterans with long-standing deter-
minations of service connection from suddenly having the
determination of service connection stripped. There is
nothing in the legislative history that manifests any
concern about the situs of the disability or the Diagnostic
Code associated with it, and expanding the protection of
§ 1159 to such situs determinations or Diagnostic Codes
does nothing to advance Congress’ intention. See
VAOPGCPREC 50-91 (Mar. 29, 1991) (precedential
opinion of the VA general counsel) (noting that it would be
“beyond the legislative purpose” to allow a veteran to be
service connected for two disabilities because of the pro-
tection of the statute where only one is shown by the
medical evidence). The VA has not changed its determi-
nation that Read’s gunshot wound was incurred in con-
nection with his military service, or that Read is entitled
to compensation for the disability he incurred as a result.
To determine that the change of the situs of the disabil-
ity—or the Diagnostic Code associated with it—was a
severance of one service connected disability and an
establishment of another, where the cause of the disabil-
ity and the resultant functional impairment are the same,
would ill-serve the purpose of the statute.
Third, our view is consistent with the interpretation
of the statute by the VA General Counsel and by the
Veterans Court. In a March 29, 1991 opinion of the
general counsel, the VA determined that a veteran had
been service connected for a donor site scar on the left
iliac crest, where the medical evidence showed only one
donor site scar on the right iliac crest. VAOPGCPREC 50-
91 (Mar. 29, 1991). The VA determined that 38 U.S.C. §
READ v. DVA 11
359 (the previous codification of 38 U.S.C. § 1159) does
“not prohibit the redesignation of an existing service
connected rating to accurately reflect the actual anatomi-
cal location of the injury or disease resulting in the vet-
eran’s disability, provided the redesignation does not
result in the severance of service connection for the dis-
ability in question.” Id. Otherwise, the VA reasoned, the
statute would lead to the “clearly absurd result[]” that a
veteran would be service connected for two disabilities
where only one was shown. Id. Thus, a change in the
situs of the disability does not change the categorization
of the disability such that service connection for one
disability is severed and service connection for another
disability is created.
A later opinion by the general counsel reiterated that
§ 1159 does not protect a prior improper diagnosis where
the evidence reveals the proper diagnosis, even where the
Diagnostic Code is changed. VAOPGCPREC 13-92 (June
2, 1992). In particular, the veteran there was previously
diagnosed as having “Arthritis degenerative (hypertrophic
or osteoarthritis)” under Diagnostic Code 5003, but after
ten years it was determined that the proper diagnosis was
“Arthritis due to trauma, established by X-ray findings:
Rate as arthritis, degenerative” under Diagnostic Code
5010. Id. The VA drew a distinction between a “disabil-
ity” and a “diagnosis,” noting that § 1159 “protects service
connection for any disability or death, not diagnosis. . . .
The modification in the diagnosis had no effect on the
veteran’s service-connected status for the lower-back
condition, and service connection for that condition was
not terminated.” Id.
The Veterans Court found these opinions persuasive
and applied them in Gifford v. Brown, 6 Vet. App. 269
(1994). There, a veteran challenged a Board determina-
tion that corrected the situs of his injury from the right
thigh to the left thigh on the basis of § 1159. The Veter-
12 READ v. DVA
ans Court held that the correction of the situs of the
injury was not a violation of § 1159, noting that the
veteran “remains service connected for a gunshot wound
of the thigh.” Id. at 270. The Veterans Court categorized
the change in the situs as a nonsubstantive change that
did not sever service connection for any disability. Read’s
case is substantially similar to Gifford, in that there is
but one disability that was apparently misdiagnosed.
Nothing in the record suggests otherwise.
While the opinions of the VA general counsel are not
binding on this court, they are entitled to consideration
for their power to persuade in light of the agency’s exper-
tise. See Wanless v. Shinseki, 618 F.3d 1333, 1338 (Fed.
Cir. 2010) (applying Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)). This court finds the reasoning in these
opinions persuasive. We also find the Veterans Court’s
application of these opinions in Gifford persuasive.
For the above reasons, this court holds that service
connection for a “disability” is not severed simply because
the situs of a disability—or the Diagnostic Code associ-
ated with it—is corrected to more accurately determine
the benefit to which a veteran may be entitled for a ser-
vice connected disability.
CONCLUSION
For the foregoing reasons, this court affirms the de-
termination by the Veterans Court that the VA did not
violate 38 U.S.C. § 1159 by changing the situs of Read’s
disability from Muscle Group XIII to Muscle Group XV.
AFFIRMED
COSTS
Each party shall bear its own costs.