Roane v. McDonough

Case: 21-2187 Document: 44 Page: 1 Filed: 04/04/2023

United States Court of Appeals
for the Federal Circuit
______________________

RAMON E. ROANE,
Claimant-Appellant

v.

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

2021-2187
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-3293, Judge Amanda L. Mere-
dith.
______________________

Decided: April 4, 2023
______________________

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.

SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
KYLE SHANE BECKRICH, BRIAN M. BOYNTON, ELIZABETH
MARIE HOSFORD, KELLY A. KRYSTYNIAK, PATRICIA M.
MCCARTHY; EVAN SCOTT GRANT, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
Case: 21-2187 Document: 44 Page: 2 Filed: 04/04/2023

2 ROANE v. MCDONOUGH

______________________

Before LOURIE, DYK, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Ramon Roane appeals the final decision of the United
States Court of Appeals for Veterans Claims which held
that he was not entitled to a rating of total disability based
on individual unemployability because his service-con-
nected disabilities did not preclude all forms of substan-
tially gainful employment. Because we conclude that the
Veterans Court properly interpreted the benefit of the
doubt rule under 38 U.S.C. § 5107 and applied the appro-
priate standard of review to the Board’s application of the
benefit of the doubt rule under § 7261(b)(1), we affirm.
I
Mr. Roane served in the U.S. Navy from August 1981
to March 1991. In December 2013, he underwent voca-
tional rehabilitation for his disabilities, including paralysis
of the sciatic nerve, degenerative arthritis of the spine, and
limited flexion of the knee. In August 2017, he filed a for-
mal application for total disability based on individual un-
employability (TDIU) where he alleged that he was unable
to secure or follow a substantially gainful occupation due
to his service-connected disabilities. 1 At the time, he had a
combined disability rating of 70 percent.
Between 2016 and 2019, Mr. Roane was examined sev-
eral times by the Department of Veterans Affairs. Those
examinations showed that his disabilities interfered with

1 A TDIU rating is assigned to a veteran who meets
disability percentage thresholds and is unable to secure or
follow a substantially gainful occupation due to service-
connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340,
4.16.
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ROANE v. MCDONOUGH 3

his ability to perform occupational tasks due to his inability
to sit or stand for extended periods and difficulty changing
positions from sitting to standing. But in November 2017,
a peripheral nerve examiner opined that despite these lim-
itations, he should be able to “seek and maintain a substan-
tially gainful light physical or sedentary type of
employment.” J.A. 3. The same month, a VA regional office
denied his TDIU claim.
Mr. Roane disagreed with the decision of the regional
office and opted to submit additional evidence to the Board.
In May 2019, he obtained a private vocational assessment
where the expert opined that his difficulties with prolonged
sitting, standing, and walking “affect his ability to perform
any type of substantially gainful employment, even seden-
tary employment.” J.A. 4.
In April 2020, the Board issued its decision denying a
TDIU rating. The Board found that Mr. Roane’s service-
connected disabilities met the rating requirement of 70
percent for TDIU under 38 C.F.R. § 4.16(a), but that they
“are not shown to be such as to preclude all forms of sub-
stantially gainful employment.” J.A. 42–43. The Board
noted that Mr. Roane, with his college education, skills,
and experience, is not precluded from work “that can be
done sitting, with opportunity to stand as required.” J.A.
43. In making its determination, the Board considered both
the VA examination reports, which did not suggest a find-
ing of TDIU, and the private examination report, which
opined that Mr. Roane was unemployable. The Board found
the latter report to be “conclusory and lacking persuasive
probative value.” J.A. 43.
The Veterans Court affirmed. The Veterans Court
found no error in the Board’s consideration of the evidence
or in its application of the benefit of the doubt rule. In par-
ticular, the Veterans Court noted that “the Board . . . sum-
marized the evidence of record, determined that
[Mr. Roane], despite his physical limitations, is not
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4 ROANE v. MCDONOUGH

precluded from all forms of substantially gainful employ-
ment consistent with his education, intellectual skills, and
experience, and explained its reasons for discounting the
2019 vocational counselor’s favorable opinion to the con-
trary.” J.A. 6–7.
Mr. Roane appeals.
II
We review de novo the Veterans Court’s interpretation
of law. Bazalo v. West, 150 F.3d 1380, 1382 (Fed. Cir. 1998).
Unless an appeal from the Veterans Court decision pre-
sents a constitutional issue, this Court may not 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)–(B).
Because Mr. Roane argues that the Veterans Court
wrongly interpreted 38 U.S.C. §§ 5107 and § 7261(b)(1), we
have jurisdiction to review these narrow issues.
A
Mr. Roane first argues that the Veterans Court misin-
terpreted 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, which re-
late to how the Board determines whether the benefit of
the doubt rule applies. He argues that § 5107(b) and
§ 3.102 require the Board to: “1) identify which evidence is
positive or negative; 2) explain why with adequate reasons
and bases; and 3) explain why the benefit of the doubt was
not afforded” because, according to him, without such safe-
guards, the Veterans Court “is unable to determine
whether evidence was either persuasively positive or neg-
ative.” Appellant’s Br. 16–17. Mr. Roane alleges that the
Board legally erred by just summarizing the record as a
whole, rather than identifying each evidence as positive or
negative.
Mr. Roane’s argument finds no support in the plain
language of either the cited statute or regulation. The
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ROANE v. MCDONOUGH 5

statute provides that “[w]hen there is an approximate bal-
ance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary
shall give the benefit of the doubt to the claimant.” 38
U.S.C. § 5107(b). Similarly, the regulation provides that
“[w]hen, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding ser-
vice origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant.” 38 C.F.R.
§ 3.102. Although these provisions require the Secretary to
carefully consider all evidence and determine whether
there’s an approximate balance of positive and negative ev-
idence, they do not specify in what manner that review
must be performed and certainly not to the degree of spec-
ificity requested by Mr. Roane.
We recently addressed the same issue in Mattox v.
McDonough, 56 F.4th 1369 (Fed. Cir. 2023). There, the vet-
eran also argued that the Board was required to specifi-
cally identify and list each piece of positive and negative
evidence. Id. at 1376–77. Although we agreed that the
Board was required to identify and consider the relevant
evidence, we specifically rejected the argument that it was
required to “give a precise and comprehensive listing of
positive and negative evidence.” Id. at 1377–78. Rather, we
held that it is sufficient for the Board to identify key evi-
dence and assign probative weight in its benefit of the
doubt analysis. Id. And we observed that the Board had
fulfilled its duty by noting the competing reports of the VA
examiners, which were clearly negative, and Mr. Mattox’s
doctor, which was clearly positive. Id.
Similarly, the Board here fulfilled its duty by identify-
ing positive and negative evidence and assigning probative
weight in its benefit of the doubt analysis. In particular,
the Board considered the competing evidence of the VA ex-
aminers’ medical reports, which were negative evidence,
and Mr. Roane’s private vocational assessment, which was
positive evidence. The Board thus properly interpreted the
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6 ROANE v. MCDONOUGH

law. And the Veterans Court did not legally err by declin-
ing to impose the heightened requirements suggested by
Mr. Roane.
B
Mr. Roane next argues that the Veterans Court incor-
rectly interpreted the standard of review it should apply to
the Board’s application of the benefit of the doubt rule un-
der § 7261(b)(1).
Section 7261 provides in relevant part that:
(a) In any action brought under this chapter, the
Court of Appeals for Veterans Claims . . .
shall—
...
(4) in the case of a finding of material fact
adverse to the claimant . . . hold unlawful
and set aside or reverse such finding if the
finding is clearly erroneous.
(b) In making the determinations under subsection
(a), the Court shall review the record of proceedings
before the Secretary and the Board of Veterans’ Ap-
peals pursuant to section 7252(b) of this title and
shall—
(1) take due account of the Secretary’s ap-
plication of section 5107(b) of this title; and
(2) take due account of the rule of prejudi-
cial error.
(c) In no event shall findings of fact made by the
Secretary or the Board of Veterans’ Appeals be sub-
ject to trial de novo by the Court.
38 U.S.C. § 7261(a)–(c) (emphases added).
Mr. Roane argues that the “take due account” language
in § 7261(b) requires the Veterans Court to conduct an
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ROANE v. MCDONOUGH 7

“additional and independent non[-]deferential review” of
the Board’s application of the benefit of the doubt rule, be-
cause a deferential review that is constrained by the stand-
ard of review in § 7261(a) would be “meaningless.”
Appellant’s Br. 23–24. But Mr. Roane’s argument is not
supported by the text or structure of 38 U.S.C. § 7261, and
we decline to adopt this far-reaching interpretation of the
phrase “take due account.”
We begin with the text of the statute and “give effect to
that clear language without rendering any portion of it
meaningless.” Sharp v. United States, 580 F.3d 1234, 1237
(Fed. Cir. 2009). Although only § 7261(b)(1) is at issue in
this appeal, the “take due account” language on which
Mr. Roane relies must be read in context of the rest of the
statute, including subsections (a) and (c). King v. Burwell,
576 U.S. 473, 486 (2015) (“Our duty [in statutory construc-
tion] is to construe statutes, not isolated provisions.” (in-
ternal quotation marks omitted)).
Section 7261(a) sets the scope and the relevant stand-
ards of review the Veterans Court must apply. Bowling v.
McDonough, 38 F.4th 1051, 1057 (Fed. Cir. 2022); Euzebio
v. McDonough, 989 F.3d 1305, 1318 (Fed. Cir. 2021). Rele-
vant here, § 7261(a)(4) provides that the Veterans Court
can set aside or reverse a finding of material fact only if
“the finding is clearly erroneous.” Since the Veterans
Court’s review under § 7261(b) is tied to § 7261(a), the Vet-
erans Court can review facts only under the clearly erro-
neous standard when considering the Board’s benefit of the
doubt determination. And if subsection (a) were not enough
to conclude that the Veterans Court could not make de novo
factual findings, § 7261(c) makes clear that “[i]n no event”
can the Veterans Court conduct a de novo review of mate-
rial facts. By including subsection (c), Congress expressly
limited the Veterans Court’s jurisdiction to exclude de novo
fact-finding. Therefore, when considering subsection (b)(1)
alongside its neighboring subsections, not only is the type
of non-deferential review Mr. Roane asked for not
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8 ROANE v. MCDONOUGH

authorized in subsection (a), but it is also expressly prohib-
ited in subsection (c). Indeed, we have repeatedly held that
the Veterans Court can only “review the Board’s weighing
of the evidence; it may not weigh any evidence itself.” E.g.,
Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013).
Based on the text of § 7261 and our precedent, the Veterans
Court cannot conduct its own independent and non-defer-
ential review of the facts to take due account of the Board’s
application of the benefit of the doubt rule.
This understanding of the phrase “take due account” is
also consistent with our interpretation of the phrase “take
due account” in the parallel provision, § 7261(b)(2), which
directs the Veterans Court to “take due account of the rule
of prejudicial error.” We generally give identical words and
phrases within the same statute the same meaning, espe-
cially when they appear within the same statutory sen-
tence. FCC v. AT&T Inc., 562 U.S. 397, 408 (2011).
Although we have not directly addressed the meaning of
“take due account” in the context of § 7261(b)(1), we have
addressed the meaning of that phrase in § 7261(b)(2). Tad-
lock v. McDonough, 5 F.4th 1327, 1332–36 (Fed. Cir. 2021).
In Tadlock, the Veterans Court affirmed a Board’s decision
even though the Board had made a clearly erroneous fac-
tual finding because the court found the error to be non-
prejudicial. In reaching this conclusion, the Veterans Court
made new factual determinations that had not been con-
sidered by the Board. Id. at 1332. We vacated the Veterans
Court’s decision after observing that § 7261(c) explicitly
prohibits the Veterans Court, an appellate tribunal, from
engaging in de novo fact finding. Id. at 1334 (citation omit-
ted). We further concluded that “§ 7261(b)’s command that
the Veterans Court ‘give due account of the rule of prejudi-
cial error’ does not give it the right to make de novo find-
ings of fact or otherwise resolve matters that are open to
debate.” Id. at 1337. Similarly, the phrase “take due ac-
count” in § 7261(b)(1) cannot provide the Veterans Court
the authority to deviate from the standards of review
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ROANE v. MCDONOUGH 9

articulated in § 7261(a), or to directly contradict Congress’s
explicit instruction that the Veterans Court refrain from de
novo fact-finding, as required under subsection (c).
By asking for an “additional and independent
non[-]deferential review” of the Board’s application of the
benefit of the doubt rule, Appellant’s Br. 24, Mr. Roane es-
sentially asks us to allow the Veterans Court to reweigh
evidence de novo. But this understanding would impermis-
sibly expand the scope of the Veterans Court’s review be-
yond what is specified in § 7261(a) and would directly
violate § 7261(c). We will not expand the interpretation of
§ 7261(b) so broadly. The Veterans Court did not misinter-
pret the statutory requirements of § 7261 by reviewing the
Board’s factual determinations for clear error while taking
due account of the Board’s application of the benefit of the
doubt rule. 2
III
Because we conclude that the Veterans Court properly
interpreted the benefit of the doubt rule under 38 U.S.C.
§ 5107 and applied the appropriate standard of review to
the Board’s application of the benefit of the doubt rule un-
der § 7261(b)(1), we affirm.
AFFIRMED
COSTS
No costs.

2 To the extent that Mr. Roane argues that the Vet-
erans Court erred in its factual determination that the
Board provided adequate bases for denying his TDIU
claim, that is an application of law to fact that we cannot
review. 38 U.S.C. § 7292(d)(2).