Spicer v. McDonough

Case: 22-1239 Document: 37 Page: 1 Filed: 03/08/2023

United States Court of Appeals
for the Federal Circuit
______________________

LUTHER D. SPICER, JR.,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2022-1239
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-4489, Judge Coral Wong Pi-
etsch, Judge Joseph L. Toth, Judge Michael P. Allen.
______________________

Decided: March 8, 2023
______________________

RENEE A. BURBANK, National Veterans Legal Services
Program, Arlington, VA, argued for claimant-appellant.
Also represented by CHRISTOPHER GLENN MURRAY, BARTON
FRANK STICHMAN, I, Washington, DC.

MATTHEW JUDE CARHART, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, MOLLIE LENORE
FINNAN, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY;
JONATHAN KRISCH, Y. KEN LEE, Office of General Counsel,
Case: 22-1239 Document: 37 Page: 2 Filed: 03/08/2023

2 SPICER v. MCDONOUGH

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

Before TARANTO, CHEN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Luther Spicer, Jr., appeals the decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) affirming the decision of the Board of Veterans’ Ap-
peals (Board) denying him secondary service connection for
a knee disability. Because we disagree with the Veterans
Court’s interpretation of 38 U.S.C. § 1110, 1 we vacate and
remand.
BACKGROUND
Mr. Spicer served in the United States Air Force from
May 1958 to September 1959 and was exposed to hazard-
ous chemicals, including benzene, in aircraft fuel. Years
later, he developed chronic myeloid leukemia, a blood can-
cer. The Department of Veterans Affairs (VA) recognized
the leukemia as service-connected and granted him a 100
percent disability rating. Separately, Mr. Spicer developed
arthritis in both knees, which caused pain and instability
and required him to use a wheelchair. He was scheduled
for knee replacement surgery to address his knee condition.
It is undisputed that his scheduled surgery was canceled
because the medications he took to manage his leukemia
lowered his hematocrit, or red blood cell level, to a level
that precluded surgery. Mr. Spicer was told that his

1 Mr. Spicer’s service falls outside “a period of war”
so 38 U.S.C. § 1131, and not § 1110, governs. J.A. 3 n.1.
The two statutes are otherwise identical, see Gilpin v. West,
155 F.3d 1353, 1356 (Fed. Cir. 1998), and for consistency
with the parties and the decision below, we also focus on
§ 1110.
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SPICER v. MCDONOUGH 3

hematocrit would never rise to a level that would permit
surgery because he is expected to stay on his cancer medi-
cations for life.
Mr. Spicer sought secondary service connection for his
knee disability. The VA regional office denied the claim,
finding no link between the knee disability and his service-
connected leukemia. Mr. Spicer appealed to the Board,
which affirmed the denial. J.A. 31–36. The Board ex-
plained that Mr. Spicer’s “inability to undergo knee re-
placement surgery because of the effects of his service-
connected leukemia is not contemplated by the applicable
laws or regulations to fall within the meaning of secondary
service connection.” J.A. 33. Mr. Spicer appealed to the
Veterans Court.
Before the Veterans Court, Mr. Spicer argued that,
notwithstanding any regulation, 38 U.S.C. § 1110 estab-
lishes entitlement to service connection in his circum-
stances. Spicer v. McDonough, 34 Vet. App. 310, 313
(2021). Section 1110 provides compensation for veterans
“[f]or disability resulting from personal injury suffered or
disease contracted in line of duty.” Mr. Spicer argued that
§ 1110 only requires a worsening of functionality—whether
through an inability to treat or a more direct, etiological
cause. A divided panel disagreed and affirmed the Board’s
denial. Spicer, 34 Vet. App. at 313.
The majority analyzed whether the language “disabil-
ity resulting from” in § 1110 applied to disabilities “that in-
clude the natural progression of a condition not actually
caused or aggravated by a service-connected disability[,]
but that nonetheless might have been less severe were it
not for such disability.” Id. at 316. The majority deter-
mined that it did not. Id.
The majority first determined that the plain meaning
of the phrase “resulting from” requires but-for causation.
It reasoned that § 1110 therefore includes an etiological
component, requiring that the veteran’s service be “the
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4 SPICER v. MCDONOUGH

cause(s) or origin of a disease.” Id. at 317 (quoting Allen
v. Brown, 7 Vet. App. 439, 445 (1995)). Although it
acknowledged that causation permits a multi-link causal
chain, the majority held that Mr. Spicer’s knee condition
did not result from his service-connected cancer. The ma-
jority reasoned that “[u]nless we can say that the current
state of his arthritis would not exist in the absence of his
cancer or chemotherapy,” there is “no actual but-for causa-
tion.” Id. at 318. In the majority’s view, Mr. Spicer’s inter-
pretation would require the VA to resort to “conjecture or
speculation” to assess the difference between the current
state of his knees and his knees post-surgery. Id. In addi-
tion, the majority opined that, contrary to longstanding
practice, Mr. Spicer’s interpretation would compensate for
the natural progression of disabilities that arose inde-
pendently of service. Id. at 318–19.
Judge Allen dissented. He agreed that the key lan-
guage is “disability resulting from,” but interpreted that
language as requiring a much broader, causation-based
standard. Id. at 321–22. He relied on similar caselaw as
the majority, such as Murakami v. United States, 398 F.3d
1342, 1351–52 (Fed. Cir. 2005), where we held that “as a
result of” requires showing “a consequence or effect.” (rely-
ing on Webster’s Third New Int’l Dictionary 1937 (1993)).
But he determined that such causation “merely requires
that one thing flow from another,” especially given Con-
gress’s use of the broad language “resulting from” without
any limitations. Spicer, 34 Vet. App.at 323. The dissent
reasoned that Congress could have listed other require-
ments for establishing service connection in § 1110, such as
an etiological cause, but it did not do so. As for the major-
ity’s concerns about the speculative nature of assessing
Mr. Spicer’s level of knee impairment due to his inability
to have surgery, Judge Allen noted that secondary service
connection already requires complex causation analyses
and that VA adjudicators address similarly complex issues
every day. As for the majority’s concerns about
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SPICER v. MCDONOUGH 5

compensation for the progression of a disability that arose
independent of service, the dissent noted the Supreme
Court’s warning against relying on policy considerations
when the law is clear. Id. at 327–28 (citing BP P.L.C.
v. Mayor & City Council of Balt., 141 S. Ct. 1532, 1542
(2021)).
Mr. Spicer appeals. We have jurisdiction under
38 U.S.C. § 7292.
DISCUSSION
I
Mr. Spicer challenges the Veterans Court’s interpreta-
tion of 38 U.S.C. § 1110. We review the Veterans Court’s
interpretation of statutes de novo. See 38 U.S.C. § 7292(c);
Breland v. McDonough, 22 F.4th 1347, 1350 (Fed. Cir.
2022).
Section 1110 provides that the United States will pay
a veteran “[f]or disability resulting from personal injury
suffered or disease contracted in line of duty.” The parties
agree, and our caselaw provides, that “disability” in § 1110
refers to a veteran’s present-day “functional impairment.”
Saunders v. Wilkie, 886 F.3d 1356, 1362–63 (Fed. Cir.
2018) (defining “disability” in § 1110 as a “functional im-
pairment”); see Oral Arg. at 21:28–21:50, 28:22–30:10,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=2
2-1239_01102023.mp3.Thus, Mr. Spicer’s claim is that his
current functional knee impairment is resulting from his
leukemia contracted in the line of duty.
The parties also agree that the language “resulting
from” in § 1110 requires but-for causation. Appellee’s
Br. 12; Oral Arg. at 0:10–0:22. The parties further agree
that but-for causation is a broad standard of causation, or
at least broader than proximate causation, and encom-
passes multi-link causal chains. Appellant’s Br. 9; Appel-
lee’s Br. 18–19 & 19 n.6. The parties’ agreement follows
Supreme Court precedent, which recognizes that
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6 SPICER v. MCDONOUGH

(i) Congress legislates knowing that the phrase “resulting
from” means but-for causation, (ii) there can be multiple
causes of a harm, and (iii) “but-for” liability based on a par-
ticular cause simply means that but for the cause, the re-
sult would not have occurred. Burrage v. United States,
571 U.S. 204, 211–12 (2014).
The dispute is thus narrow: Whether the but-for cau-
sation requirement in § 1110 is limited, as the government
contends, to bringing something about or the onset or etio-
logical link, or whether, as Mr. Spicer contends, that lan-
guage may encompass situations where the service-
connected disease or injury impedes treatment of a disabil-
ity. For the reasons below, we adopt the latter view.
II
Our analysis begins and ends with the statutory text.
See Res-Care, Inc. v. United States, 735 F.3d 1384, 1388
(Fed. Cir. 2013). Only where there is “interpretive doubt,”
after using ordinary textual analysis tools, do we rely on
the pro-veteran canon for guidance. Kisor v. McDonough,
995 F.3d 1316, 1325 (Fed. Cir. 2021), cert. denied, 142
S. Ct. 756 (2022). If the intent of Congress is clear from the
statutory language, that is the end of our inquiry. Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984).
Section 1110 provides:
For disability resulting from personal injury suf-
fered or disease contracted in line of duty, or for ag-
gravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, na-
val, air, or space service, during a period of war, the
United States will pay to any veteran thus disabled
and who was discharged or released under condi-
tions other than dishonorable from the period of
service in which said injury or disease was in-
curred, or preexisting injury or disease was
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SPICER v. MCDONOUGH 7

aggravated, compensation as provided in this sub-
chapter, but no compensation shall be paid if the
disability is a result of the veteran’s own willful
misconduct or abuse of alcohol or drugs.
We focus on the first clause: “For disability resulting
from personal injury suffered or disease contracted in line
of duty.” The initial phrase, “[f]or disability,” means pre-
sent-day functional impairment. See Saunders, 886 F.3d
at 1362–63. We have recognized that the word “disability”
refers to a “functional impairment, rather than the under-
lying cause of the impairment,” id., a definition the parties
do not dispute, Oral Arg. at 29:02–29:40. In other words,
the statute refers only to the disability itself—not its
cause—and thus an interpretation of the statute that re-
quires a veteran’s service to be the onset or etiological link
of a disability would not be derived from this statutory lan-
guage.
Next, we turn to the key language in this case: “result-
ing from.” This phrase has no qualifiers or exceptions. No
textual or contextual indication dictates a narrower inter-
pretation of “resulting from” than but-for causality. See
Burrage, 571 U.S. at 212. The but-for causation standard
is not limited to a single cause and effect, but rather con-
templates multi-causal links, including action and inaction
(e.g., the failure to shovel snow can be a but-for cause of
someone falling). See id. at 211 (explaining how poison can
be a but-for cause of death even if other diseases contribute
to the death); Bostock v. Clayton Cnty., 140 S. Ct. 1731,
1739 (2020) (describing the failure to signal a turn at an
intersection as a but-for cause of a collision). Stated other-
wise, but-for causation is broad, undisputedly broader than
proximate cause. See Appellee’s Br. 19 n.6; see also Bos-
tock, 140 S. Ct. at 1739 (characterizing but-for causation as
“a sweeping standard”). In drafting § 1110, Congress spe-
cifically invoked but-for causation and did not indicate that
it meant anything else.
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8 SPICER v. MCDONOUGH

Congress could have limited the § 1110 causation
standard. Indeed, Congress drafted a narrower statute us-
ing qualifiers in § 1153. There, Congress excluded compen-
sation for the aggravation of “preexisting injury or disease”
when the increase in disability is due to the “natural pro-
gress of the disease.” 38 U.S.C. § 1153. Congress did not
similarly limit or qualify the text of § 1110. We must give
meaning to this difference. See Res-Care, 735 F.3d at 1389
(stating the cardinal rule of statutory interpretation that
Congress’s use of different terms within related statutes
generally implies that Congress intended different mean-
ings); see also Bates v. United States, 522 U.S. 23, 29 (1997)
(“[W]e ordinarily resist reading words or elements into a
statute that do not appear on its face.”). Thus, the causa-
tion standard of § 1110 is simply standard but-for causa-
tion.
Put together, § 1110 plainly requires compensation
when a service-connected disease or injury is a but-for
cause of a present-day disability. This broad language ap-
plies to the natural progression of a condition not caused
by a service-connected injury or disease, but that nonethe-
less would have been less severe were it not for the service-
connected disability. Stated another way, § 1110 provides
for compensation for a worsening of functionality—
whether through an inability to treat or a more direct, eti-
ological cause. Nothing in the statute limits § 1110 to onset
or etiological causes of a worsening in functionality.
The government’s main argument against this inter-
pretation focuses on the second clause of § 1110: “aggrava-
tion of a preexisting injury suffered or disease contracted
in line of duty.” See Appellee’s Br. 27–28. Specifically, the
government contends that Congress in § 1110 distin-
guished disabilities whose onset resulted from service from
disabilities that were aggravated by service and did not al-
low compensation for the latter. See id.; Oral Arg.
at 22:46–24:09. Specifically, the government argues that
Congress’s choice of the words in the second clause of
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SPICER v. MCDONOUGH 9

§ 1110 (“aggravation of a preexisting injury”) means that
any aggravation (even of a non-preexisting injury or dis-
ease) must be different than what is addressed in the first
clause. 2
We do not adopt the government’s view. The second
clause of the statute narrowly addresses “aggravation of a
preexisting injury.” In other words, that clause addresses
preexisting conditions, not all the diseases and injuries
that § 1110 addresses. Absent some other language in the
statute, this phrase cannot be fairly read to exclude all ag-
gravation from the first clause of § 1110, including aggra-
vation of post-service conditions. See Bates, 522 U.S.
at 29–30 (“Where Congress includes particular language in
one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.”) (cleaned up).
Although our interpretation rests fully on the statutory
text, we note that our interpretation is also consistent with
the VA’s treatment of “secondary conditions.” The VA does
not require a direct causation standard when addressing
such conditions. For example, in Wanner v. Principi, 17
Vet. App. 4, 8 (2003), rev’d and remanded on other grounds,
370 F.3d 1124 (Fed. Cir. 2004), the VA awarded compensa-
tion for a disability caused by the medication used to treat
a veteran’s service-connected condition. There, the veteran
developed tuberculosis during service. Id. The medication
the veteran took to treat tuberculosis caused tinnitus, and
the Board awarded service connection for his tinnitus. Id.
at 8–9. Likewise, in Payne v. Wilkie, 31 Vet. App. 373

2 In sum, the government tries to import 38 U.S.C.
§ 1153’s stricter language for “aggravat[ion]” of “[a] preex-
isting injury or disease” to all the disabilities § 1110 con-
templates, which includes post-service injuries or
disabilities.
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10 SPICER v. MCDONOUGH

(2019), the VA recognized that causation could include
multiple steps in the causal chain. Accordingly, the VA ac-
cepted the theory that service-connected upper extremity
disabilities caused obesity, which in turn caused other non-
service-connected disabilities, which in turn caused loss of
a creative organ. Id. at 383–85 (interpreting 38 U.S.C.
§ 1114(k), which provides compensation when, “as the re-
sult of” a service-connected disability, a veteran suffers the
loss of a creative organ). And the VA also awards compen-
sation for a disability where a service-connected disability
prevents exercise, which leads to obesity, which leads to
another disability, like hypertension. Memorandum from
Acting Gen. Couns. to Exec. in Charge, Bd. of Veterans’ Ap-
peals, VAOPGCPREC 1-2017 (Jan. 6, 2017), at 9–10,
http://www.va.gov/OGC/docs/2017/VAOPGCPREC1- 2017.
pdf.
As for the government’s concerns that the VA cannot
“measure, evaluate, or appropriately compensate
Mr. Spicer’s knee functionality” in a but-for world because
the assessment is too speculative, Appellee’s Br. 30, we are
not persuaded. Describing a but-for world necessarily re-
quires imagining that which did not occur. See, e.g., Mital
Steel Point Lisas Ltd. v. United States, 542 F.3d 867, 876
(Fed. Cir. 2008) (“But for causation is a hypothetical con-
struct.”) (quoting Price Waterhouse v. Hopkins, 490 U.S.
228, 240 (1989)). Put differently, some speculation is nat-
urally baked into but-for causation. Agencies and tribu-
nals tasked with determining causation—like the VA—are
familiar with this kind of analysis.
To illustrate, under 38 U.S.C. § 1151, the VA assesses
what would have happened but for medical negligence. As
the Secretary has explained, this analysis includes consid-
eration of whether a physician’s negligence caused the nat-
ural progression of a disease by failing to prevent such
natural progress from occurring. See Additional Disability
or Death Due to Hospital Care, Medical or Surgical Treat-
ment, Examination, Training and Rehabilitation Services,
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SPICER v. MCDONOUGH 11

or Compensated Work Therapy Program, 69 Fed. Reg.
46,426 (Aug. 3, 2004). This could encompass, for example,
the failure to perform a corrective surgery. Id. at 46,428.
The VA also assesses the ameliorative effect of a medica-
tion for purposes of determining certain ratings. See Oral
Arg. at 9:30–10:04; see, e.g., Jones v. Shinseki, 26 Vet. App.
56, 62–63 (2012); McCarroll v. McDonald, 28 Vet. App. 267,
273 (2016). In other words, the VA regularly evaluates how
medical intervention affects or would have affected a vet-
eran’s disability. And under 38 U.S.C. § 1153, the VA as-
sesses the delta between a condition’s worsening due to
active service versus the natural progression of that condi-
tion. Here, for example, Mr. Spicer seeks an assessment of
the delta between his current condition and what it would
have been post corrective knee surgery. Oral Arg. at 7:39–
8:08. Such an assessment would seem within the VA’s ca-
pabilities, especially given the VA’s everyday use of medi-
cal opinions to guide its factfinding. In any event, § 1110
is clear, and we will not second guess Congress’s choice of
words based on such policy considerations. BP P.L.C., 141
S. Ct. at 1542.
We decide this case based on our interpretation of
§ 1110 alone. To the extent that the VA also applied
38 C.F.R. § 3.310(b) to reject Mr. Spicer’s theory of compen-
sation, that regulation is unlawful as inconsistent with
38 U.S.C. § 1110.
CONCLUSION
We have considered the government’s remaining argu-
ments and find them unpersuasive. For the reasons above,
we vacate the Veterans Court’s decision and remand for
proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to Appellant.