Cousin v. Wilkie

United States Court of Appeals
for the Federal Circuit
______________________

WILLIE A. COUSIN,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2017-1971
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-2175, Senior Judge Alan G.
Lance, Sr.
______________________

Decided: September 28, 2018
______________________

ANDREW DUFRESNE, Perkins Coie LLP, Madison, WI,
argued for claimant-appellant. Also represented by
KENNETH M. ALBRIDGE, III, Michael Best & Friedrich,
LLP, Madison, WI.

ERIN MURDOCK-PARK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by CLAUDIA BURKE, ROBERT EDWARD
KIRSCHMAN, JR., CHAD A. READLER; LARA EILHARDT, BRIAN
D. GRIFFIN, JONATHAN KRISCH, Office of General Counsel,
2 COUSIN v. WILKIE

United States Department of Veterans Affairs, Washing-
ton, DC.
______________________

Before MOORE, SCHALL, and WALLACH, Circuit Judges.
MOORE, Circuit Judge.
Willie A. Cousin appeals a decision of the U.S. Court
of Appeals for Veterans Claims (“Veterans Court”) affirm-
ing the decision of the Board of Veterans’ Appeals. The
Board held that a December 1954 regional office (“RO”)
rating decision, which denied disability compensation for
a back condition, did not contain clear and unmistakable
error. We reverse and remand.
BACKGROUND
Mr. Cousin served in the U.S. Army from September
1951 to September 1953. His entrance examination in
September 1951 showed normal findings as to his back.
Soon after entering service, he injured his back while
lifting cans full of ashes. About a month later, in May
1952, he complained of back pain that was “catching in
nature,” and he was diagnosed with a mild back strain,
placed on medically restricted duty, and instructed to
return to the orthopedic clinic one month later. In June
1952, his back condition was noted to have improved, and
he was removed from medically restricted duty. Service
treatment records from March 1953 note back pain prior
to service and an x-ray showed a “pedicle defect L5” and
“spondylolysis.” J.A. 3; J.A. 79; J.A. 88; J.A. 320–21.
Thereafter he was placed on a permanent profile for a
“weak back,” meaning he was determined to be unfit for
lifting, bending, prolonged marching, or carrying a pack
on his back. He was honorably discharged in September
1953. An examination report at the time of his discharge
noted his back had been taped in 1952 and that he was
then asymptomatic.
COUSIN v. WILKIE 3

In July 1954, Mr. Cousin filed a claim seeking disabil-
ity compensation for his back condition. The RO denied
his claim in December 1954, stating:
Service records show that, on 5-9-52, the veteran
had a pain in the back “catching in nature.” Ex-
amination showed a mild back strain. There is no
further evidence of treatment or complaint of this
condition. It is considered to have been acute,
without residuals.
J.A. 299. Between 1979 and 2009, Mr. Cousin filed three
applications to reopen his back claim, all of which were
denied.
In January 2012, however, Mr. Cousin filed another
application to reopen his claim, and in February 2013, the
RO granted him service connection for a back disability
effective January 19, 2012. Mr. Cousin filed a Notice of
Disagreement, arguing that an earlier effective date was
warranted because there was clear and unmistakable
error (“CUE”) in the prior denials, 1 which the RO denied.
The Board denied his appeal, determining the 1954
decision was final and did not contain CUE. It acknowl-
edged that the 1954 decision contains no reference to, or
discussion of, the fact that Mr. Cousin was placed on a
permanent physical profile for his back in March 1953,
but noted under then-existing precedent the RO was not
required to give a detailed explanation of its findings.
Citing the 1946 Schedule for Rating Disabilities (“1946
schedule”), the Board found that because Mr. Cousin’s
1953 x-ray revealed evidence of a “defect,” the RO “might
well have concluded that the condition” was a non-
compensable “congenital defect.” J.A. 88; J.A. 320–21.

1 Mr. Cousin’s arguments on appeal, as they were
to the Veterans Court, are directed to CUE in the RO’s
1954 decision.
4 COUSIN v. WILKIE

The Veterans Court affirmed the Board’s decision,
finding the Board “offered a plausible explanation for why
the RO may have discounted the 1953 records.” J.A. 5. It
noted the RO was not required to fully explain its findings
and found it was not clear from the decision that the RO
failed to consider certain presumptions in Mr. Cousin’s
favor. Mr. Cousin appeals. We have jurisdiction under 38
U.S.C. § 7292.
DISCUSSION
Our review of Veterans Court decisions is limited by
statute. We have jurisdiction under 38 U.S.C. § 7292(a)
to review a decision of the Veterans Court “with respect to
the validity of [the] decision . . . 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.”
See also § 7292(c). We review the Veterans Court’s regu-
latory interpretations de novo. Johnson v. McDonald, 762
F.3d 1362, 1364 (Fed. Cir. 2014). “[W]e are prohibited,
absent a constitutional issue, from reviewing challenges
to factual determinations or the application of a statute or
regulation to the facts of a particular case.” Dixon v.
Shinseki, 741 F.3d 1367, 1373 (Fed. Cir. 2014); accord
§ 7292(d)(2). “We have recognized, however, that where
adoption of a particular legal standard dictates the out-
come of a case based on undisputed facts, we may address
that issue as a question of law.” Dixon, 741 F.3d at 1373
(quoting Halpern v. Principi, 384 F.3d 1297, 1306 (Fed.
Cir. 2004)); accord Conley v. Peake, 543 F.3d 1301, 1304
(Fed. Cir. 2008).
The following must be demonstrated to establish
CUE: (1) “Either the correct facts, as they were known at
the time, were not before the adjudicator or the statutory
or regulatory provisions extant at the time were incorrect-
ly applied”; (2) “The error must be ‘undebatable’ and the
sort ‘which, had it not been made, would have manifestly
changed the outcome at the time it was made’”; and (3) “A
COUSIN v. WILKIE 5

determination that there was CUE must be based on the
record and the law that existed at the time of the prior
adjudication in question.” Morris v. Shinseki, 678 F.3d
1346, 1351 (Fed. Cir. 2012) (quoting Willsey v. Peake, 535
F.3d 1368, 1371 (Fed. Cir. 2008)).
As an initial matter, we reject the government’s ar-
gument that we lack jurisdiction over the Veterans
Court’s decision because it simply applied well-
established CUE law to the facts of the case. Mr. Cousin’s
appeal raises an issue of regulatory interpretation over
which we have jurisdiction. The Board found that the RO
might have concluded Mr. Cousin’s back condition was a
“congenital defect” and thus non-compensable under the
1946 schedule. The Veterans Court held the Board’s
explanation was plausible. The Board’s and Veterans
Court’s determinations relied on the legal meaning of a
“congenital defect” in the 1946 schedule, which is an issue
over which we have jurisdiction. See 38 U.S.C. § 7292(a),
(c); cf. Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000)
(“We have jurisdiction over this appeal because it raises a
challenge concerning the interpretation of the ‘clear and
unmistakable error’ regulation that was relied on by the
Court of Appeals for Veterans Claims.”).
Mr. Cousin argues the Board and Veterans Court
failed to apply the proper legal standard for determining
whether a condition is a non-compensable “defect” in
crediting the RO’s decision. He argues his medical rec-
ords demonstrated he had a back condition called spondy-
lolysis, which, based on undisputed facts, is a “disease”
capable of progression and not a “defect” for purposes of
compensation under then-existing law.
In 1954, as today, wartime veterans could receive
compensation for disability resulting from in-service
“injury” or “disease.” Veterans Regulation No. 1(a), part
I, para. 1(a) (codified, without changes relevant here, as
present day 38 U.S.C. § 1110); see, e.g., Joyce v. Nicholson,
6 COUSIN v. WILKIE

19 Vet. App. 36, 44–45 (2005). “Defects,” however, were
not compensable. The 1946 schedule, in effect at the time
of the 1954 RO decision, provided:
Mere congenital or developmental defects, absent,
displaced or supernumerary parts, refractive error
of the eye, personality disorder and mental defi-
ciency are not diseases or injuries in the meaning
of applicable legislation.
Effective April 1, 1946, published at 29 Fed. Reg. 6719,
§ 4.9 (1964).
It is undisputed that Mr. Cousin was diagnosed with
spondylolysis in the medical records before the 1954 RO.
Mr. Cousin’s 1953 x-ray record determined that he had
spondylolysis. J.A. 320–21. Based on that record, the
Board specifically found that Mr. Cousin was “diagnosed
[with] spondylolysis.” J.A. 88. At oral argument, the
government agreed the Board made this fact finding.
Oral Arg. at 13:50–14:07, 16:20–25. We do not have
jurisdiction to review the Board’s finding that Mr. Cousin
was diagnosed with spondylolysis, which the government
conceded at oral argument. Oral Arg. at 15:37–16:37.
Further, the government conceded before the Veter-
ans Court that spondylolysis is a degenerative disease. In
his opening brief to the Veterans Court, Mr. Cousin
alleged that his March 1953 records established his
diagnosis of spondylolysis and that spondylolysis “is a
form of degenerative change.” J.A. 21–22; see also J.A.
57–58. The government represented to the Veterans
Court that the “facts of this case are not in dispute” and it
“accepts and adopts the statement of facts” in
Mr. Cousin’s opening brief. J.A. 43 & n.1; see also Oral
Arg. at 16:20–32, 20:33–20:47 (admitting it made these
concessions below).
Since the Board expressly found Mr. Cousin was di-
agnosed with spondylolysis, and the government conceded
COUSIN v. WILKIE 7

that spondylolysis is a degenerative condition, the only
way the 1954 RO could have found against Mr. Cousin is
if it concluded the legal definition of “defect” under the
1946 schedule included degenerative conditions. That
would have been error as a matter of law. At no point has
the government suggested that the legal definition of
“defect” could include a degenerative condition. To the
contrary, the Department of Veterans Affairs and the
government have argued that a “defect” under the regula-
tion does not include degenerative conditions. The earli-
est (1990) VA General Counsel Opinion addressing the
term “defect” under the closely related regulation at 38
C.F.R. § 3.303(c) credited as valid the view expressed in
Durham v. United States, 214 F.2d 862, 875 (D.C. Cir.
1954), that, unlike a “disease,” a “defect” is “incapable of
any improvement or deterioration.” VA Op. Gen. Couns.
Prec. 82-90, Subject: Congenital/Developmental Condi-
tions under 38 C.F.R. § 3.303(c), 1990 WL 10553739, at *2
(July 18, 1990). We afforded deference to this interpreta-
tion of the regulation, and held it reasonable, in O’Bryan
v. McDonald, 771 F.3d 1376, 1379–81 (Fed. Cir. 2014).
Significantly, the government has not argued that a
different legal definition of “defect” should or could have
been properly applied to the 1946 schedule. Indeed, the
government takes the position that application of the
interpretation of “defect” in the General Counsel Opinion
to the facts here results in an affirmance. See Oral Arg.
at 24:37–24:53 (“Regardless of how the term ‘defect’ is
applied, even assuming that the . . . General Counsel
opinion should be applied, a manifestly different result
does not occur applying that definition of ‘defect.’”). Thus,
we are not retroactively applying this law; rather, we are
interpreting the 1946 regulation in effect at the time.
Whether a defect under the regulation can include a
degenerative condition is a question of law over which we
have jurisdiction. We conclude that “defect” is properly
construed as excluding degenerative conditions, and we do
not understand the government to contend otherwise in
8 COUSIN v. WILKIE

this case. The government confirmed at oral argument
that it “does not contend that spondylolysis is a defect.”
Oral Arg. at 19:50–20:11.
Given the proper legal interpretation of defect in the
regulation in effect in 1946, and the concessions made by
the government regarding the facts of this case, the RO
could not, without error, have determined that spondylol-
ysis was a “defect.” Accordingly, we conclude as a matter
of law that the RO’s December 1954 decision contained
CUE and that Mr. Cousin is entitled to an earlier effective
date for his benefits. See, e.g., Groves v. Peake, 524 F.3d
1306, 1310 (Fed. Cir. 2008) (concluding the Veterans
Court legally erred by disregarding the applicability of a
regulation and applying that regulation to undisputed
diagnoses to determine a ratings decision contained
CUE).
On appeal, the government also argues that the RO
could have denied service connection because there was
record evidence that Mr. Cousin was asymptomatic at his
departure from the Army and that therefore his back
condition was “acute, without residuals.” Again, the
government’s concessions regarding the undisputed facts
must control. The government conceded that Mr. Cousin
had been placed on permanent profile for a “weak back”
and deemed unfit for lifting, bending, prolonged march-
ing, or even carrying a pack on his back. See, e.g., J.A.
21–22; J.A. 43 & n.1; Oral Arg. at 17:07–17:42, 30:27–40.
And the government accepted as true Mr. Cousin’s claim
that in “the months and years that followed [his service],
Mr. Cousin continued to experience back trouble and
degenerative changes as a result of service.” J.A. 22
(emphasis added); J.A. 43 & n.1. We have considered the
government’s remaining arguments and find them unper-
suasive.
COUSIN v. WILKIE 9

CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court is reversed. We remand for entry of judgment
consistent with this opinion.
REVERSED AND REMANDED
COSTS
Costs to appellant.