Webb v. McDonough

Case: 22-1243 Document: 37 Page: 1 Filed: 06/29/2023

United States Court of Appeals
for the Federal Circuit
______________________

JOHN W. WEBB,
Claimant-Appellant

v.

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

2022-1243
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-8064, Judge Michael P. Allen.
______________________

Decided: June 29, 2023
______________________

JENNIFER TRACY SHANNON HEALY, Veterans Legal Ad-
vocacy Group, Arlington, VA, argued for claimant-appel-
lant. Also represented by HAROLD HAMILTON HOFFMAN,
III, MEGAN EILEEN HOFFMAN.

ANDREW JAMES HUNTER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, DEBORAH ANN
BYNUM, PATRICIA M. MCCARTHY; AMANDA BLACKMON,
BRIAN D. GRIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
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2 WEBB v. MCDONOUGH

______________________

Before TARANTO, CHEN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Some veterans have service-connected conditions that
are not listed in the Department of Veterans Affairs’ (VA)
Schedule of Disability Ratings. In those circumstances, the
VA can choose an appropriate disability rating for the vet-
eran’s unlisted condition by analogizing it to a listed one.
This appeal involves the framework for how the VA per-
forms such a rating by analogy.
John W. Webb appeals a decision of the U.S. Court of
Appeals for Veterans Claims (Veterans Court) affirming
the Board of Veterans’ Appeals’ determination that he was
not entitled to a compensable disability rating for his un-
listed service-connected condition because he did not meet
all the criteria of the analogous condition’s diagnostic code.
Because the Veterans Court misinterpreted the require-
ments of the applicable regulation, 38 C.F.R. § 4.20, we va-
cate its decision and remand for further consideration.
BACKGROUND
The VA promulgates a Schedule for Rating Disabilities
that provides an extensive list of disabilities identified by
unique diagnostic codes, each of which has at least one cor-
responding disability rating. 38 U.S.C. § 1155; 38 C.F.R.
pt. 4. Although the Schedule is extensive, it is possible that
a particular veteran’s disability does not clearly fall under
one of the delineated diagnostic codes. VA regulations ad-
dress this possibility:
When an unlisted condition is encountered it will
be permissible to rate under a closely related dis-
ease or injury in which not only the functions af-
fected, but the anatomical localization and
symptomatology are closely analogous.
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WEBB v. MCDONOUGH 3

38 C.F.R. § 4.20. In other words, this regulation provides
that a veteran having an “unlisted” condition, i.e., one that
is not included on the Schedule, can be rated analogously
to—and given the associated disability rating of—a listed
disease or injury, provided that the affected functions, an-
atomical location, and symptomatology of the veteran’s
condition are “closely analogous” to those of the listed dis-
ease or injury. For example, “a veteran’s non-migraine
headaches could be rated as analogous to migraine head-
aches.” Jeffrey D. Parker, Getting the Train Back on Track:
Legal Principles to Guide Extra-Schedular Referrals in
U.S. Department of Veterans Affairs Disability Rating
Claim Adjudications, 28 FED. CIR. B.J. 175, 192 (2019).
In Lendenmann v. Principi, the Veterans Court elabo-
rated on this regulatory guidance, explaining that, “[i]n de-
ciding whether a listed disease or injury is ‘closely related’
to the veteran’s ailment, the VA may take into considera-
tion three factors” when determining which diagnostic code
is most “closely analogous” to a given unlisted disabil-
ity: “(1) whether the ‘functions affected’ by ailments are
analogous; (2) whether the ‘anatomical localization’ of the
ailments is analogous; and (3) whether the ‘symptomatol-
ogy’ of the ailments is analogous.” 3 Vet. App. 345, 350
(1992) (quoting 38 C.F.R. § 4.20). 1
With this brief legal background in mind, we now turn
to the facts of this case. Mr. Webb served in the Army from
1968 to 1970, receiving an honorable discharge. After the
conclusion of his service, Mr. Webb developed, among other
ailments, service-connected prostate cancer, the treatment

1 We note that Lendenmann requires that each of
these three factors be “analogous,” while § 4.20 requires
that these factors be “closely analogous.” To the extent this
inconsistency is meaningful, however, we need not address
it further here, as it makes no difference to our opinion in
this case.
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4 WEBB v. MCDONOUGH

for which caused him to develop erectile dysfunction (ED).
In 2015, after Mr. Webb reopened an earlier claim request-
ing disability benefits for his ED, a Regional Office (RO) of
the VA issued a decision assigning Mr. Webb a noncompen-
sable (i.e., zero percent) rating for his disability. At that
time, the Schedule did not include a diagnostic code for ED.
See 38 C.F.R. § 4.115b (2015). 2 As a result, the RO rated
Mr. Webb’s disability by analogy to diagnostic code (DC)
7522, which provides for a 20 percent disability rating for
“[p]enis, deformity, with loss of erectile power.” Id.
DC 7522. With little discussion, the RO determined that
Mr. Webb’s particular disability entitled him only to a non-
compensable rating. See J.A. 774–75, 780.
Mr. Webb appealed to the Board, which affirmed the
RO’s determination. J.A. 13–20. The Board acknowledged
that Mr. Webb’s disability had been rated by analogy, as
provided for by 38 C.F.R. § 4.20, but explained that
DC 7522 required Mr. Webb to show “deformity of the pe-
nis with loss of erectile power.” J.A. 18–19. Because
Mr. Webb did not have such a deformity, the Board deter-
mined that he was not entitled to a compensable disability
rating. J.A. 19 (“As no penile deformity has been shown, a
separate compensable rating for erectile dysfunction under
DC 7522 is not warranted . . . .”).

2 The Schedule has since been revised to provide for
a zero percent, i.e., noncompensable, disability rating for
ED alone. See 38 C.F.R. § 4.115b, DC 7522 (2021) (provid-
ing a zero percent rating for “[e]rectile dysfunction, with or
without penile deformity”). The government properly notes
that this revised version of DC 7522 does not apply to
Mr. Webb’s case because nothing in the revised rule indi-
cates that it was intended to apply retroactively. See
38 U.S.C. § 5110(g); see also Appellee’s Br. 7 n.3 (agreeing
that the revised version of DC 7522 does not apply to
Mr. Webb’s case).
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WEBB v. MCDONOUGH 5

The Veterans Court affirmed. In its brief opinion, the
Veterans Court determined that a prior Veterans Court de-
cision, Williams v. Wilkie, 30 Vet. App. 134 (2018), was “fa-
tal to [Mr. Webb]’s argument.” Webb v. McDonough,
No. 20-8064, 2021 WL 3625395, at *1 (Vet. App. Aug. 17,
2021). The court explained its view that “[i]mplicit in the
[c]ourt’s holding in Williams is that[,] when ED is rated un-
der DC 7522, a claimant must establish a penile deformity
to be entitled to” benefits, and thus that Mr. Webb’s argu-
ment “is foreclosed by” Williams. Id. at *2.
Mr. Webb appeals. We have jurisdiction under
38 U.S.C. § 7292(c).
DISCUSSION
On appeal, Mr. Webb challenges the Veterans Court’s
interpretation of 38 C.F.R. § 4.20. We review the Veterans
Court’s interpretation of a regulation de novo. See
38 U.S.C. § 7292(c); Pickett v. McDonough, 64 F.4th 1342,
1345 (Fed. Cir. 2023).
In its brief analysis affirming the Board’s conclusion
that Mr. Webb was not entitled to benefits, the Veterans
Court addressed neither the explicit requirements of § 4.20
nor the Lendenmann factors. See Webb, 2021 WL 3625395,
at *1–3. In other words, the court did not address whether
the functions affected, anatomical location, and sympto-
matology of Mr. Webb’s condition are closely analogous to
the functions affected, anatomical location, and sympto-
matology of the condition listed under DC 7522. The Vet-
erans Court was not alone—indeed, at no point in
Mr. Webb’s case, including before the RO and the Board,
did any agency or court substantively discuss the text of
§ 4.20 (or even the related guidance in Lendenmann) and
analyze its application to Mr. Webb’s unlisted condition.
Rather, instead of engaging with the explicit language of
this regulation, the VA and the Veterans Court required
Mr. Webb to strictly meet the requirements of DC 7522 as
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6 WEBB v. MCDONOUGH

if he were being directly rated under that code. J.A. 18–19,
774–76, 780; Webb, 2021 WL 3625395, at *1–2.
We conclude that the Veterans Court erred by requir-
ing Mr. Webb, to be eligible for benefits, to show that his
unlisted condition identically matched the criteria of the
listed condition to which his condition was rated by anal-
ogy. In doing so, the Veterans Court imposed a require-
ment not stated in § 4.20, the sole regulation governing
rating by analogy. We hold that, when rating by analogy
under § 4.20, the VA must adhere to the requirements of
that regulation. The listed disease or injury to which a vet-
eran’s unlisted condition is being rated by analogy must be
only “closely related,” not identical, to the unlisted condi-
tion. That regulation provides guidance for determining
whether a listed condition is “closely related” to the un-
listed condition: it is one “in which not only the functions
affected, but the anatomical localization and symptomatol-
ogy are closely analogous” to the unlisted condition.
38 C.F.R. § 4.20; see also Lendenmann, 3 Vet. App. at 350–
51. Further, once the VA has concluded that a listed dis-
ease or injury is “closely analogous” to a veteran’s unlisted
condition, we see no source of law directing the VA to with-
hold the rating based on the qualifying criteria associated
with that listed disease or injury’s diagnostic code.
The regulatory text supports our conclusion. Sec-
tion 4.20 provides that when “an unlisted condition is en-
countered,” the VA can rate that disability “under a closely
related disease or injury in which not only the functions af-
fected, but the anatomical localization and symptomatol-
ogy are closely analogous.” 38 C.F.R. § 4.20 (emphases
added). The regulation thus contemplates that it will be
applied to certain conditions that are unlisted, i.e., not
identical to those that are listed and assigned a specific di-
agnostic code. When such an unlisted condition is encoun-
tered, the VA may choose a “closely related”—again, not
identical—listed condition to which it will rate the vet-
eran’s unlisted condition by analogy. As a matter of plain
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WEBB v. MCDONOUGH 7

language, it would be nonsensical to require a veteran’s un-
listed disability to precisely meet the criteria for a listed
disease or injury’s diagnostic code. After all, if a veteran’s
condition did precisely meet the requirements of a listed
condition, that condition could simply be rated under that
listed condition’s diagnostic code; there would be no need
to rate by analogy. See, e.g., Ulysses Copeland v. McDon-
ald, 27 Vet. App. 333, 336 (2015) (“Where, however, a con-
dition is listed in the schedule, rating by analogy is not
appropriate.”). Concluding otherwise—and requiring a
veteran’s unlisted condition to satisfy each of the criteria of
a listed condition—would eviscerate the text and purpose
of § 4.20, which explicitly allows for rating by analogy.
Our conclusion aligns not only with the regulatory text
but also with Veterans Court precedent. In Stankevich
v. Nicholson, for example, the Veterans Court determined
that the Board erred by requiring a veteran with an un-
listed condition to demonstrate that his disability satisfied
each requirement of a listed condition to which his disabil-
ity was being rated by analogy. 19 Vet. App. 470, 472–73
(2006). Specifically, the Board rated a veteran’s undiag-
nosed, chronic joint pain by analogy to DC 5003, for arthri-
tis. Id. at 471. The Board found that the veteran could not
be awarded benefits because he had not been diagnosed
with arthritis, a requirement listed in the schedule for
DC 5003. Id. at 472. The Veterans Court explained this
was error, because “[t]he function affected, anatomical lo-
calization, or symptomatology of an undiagnosed illness
cannot be analogous if the Board applies that rating crite-
ria to require objective evidence of a diagnosed disability.”
Id. Strictly applying the criteria of the analogous diagnos-
tic code, the Veterans Court explained, was “arbitrary and
capricious because the analogy is, at best, illusory.” Id.
at 472–73.
Similarly, in Lendenmann, the Veterans Court set
forth factors that the Board must consider to determine
which listed disease or injury is most analogous to the
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8 WEBB v. MCDONOUGH

veteran’s unlisted condition. 3 Vet. App. at 350–51 (quot-
ing 38 C.F.R. § 4.20). Lendenmann thus clearly contem-
plates that such an unlisted condition would, by definition,
not perfectly match the symptoms of any one listed condi-
tion. Id. 3
The Veterans Court determined it was bound by what
it viewed as an implicit holding in Williams requiring a vet-
eran seeking to be rated by analogy to DC 7522 to meet the
criteria of that diagnostic code. Contrary to the Veterans

3 And, as Mr. Webb highlights in his briefing, the
Veterans Court has, in nonprecedential decisions, repeat-
edly concluded similarly in cases specifically involving rat-
ing by analogy to DC 7522. Appellant’s Br. 2 & n.4. For
example, in Hernandez v. McDonough, No. 20-0665,
2021 WL 3285043 (Vet. App. Aug. 2, 2021), the Veterans
Court explained that “[u]nder an analogous rating code,
the disability being rated is not expected to manifest all the
objective criteria of the analogous rating.” Id. at *4 (citing
Stankevich, 19 Vet. App. at 472). Similarly, in Ellis
v. McDonald, No. 15-1264, 2016 WL 3541006 (Vet. App.
June 29, 2016), the Veterans Court reversed the Board,
stating that “the Board itself rated ED by analogy,” and
“therefore a veteran [did] not necessarily have to show” all
the requirements of the analogous diagnostic code. Id.
at *3 (cleaned up). In another example, the Veterans Court
vacated the Board’s decision in Wilkins v. McDonald,
No. 13-3260, 2015 WL 9463256 (Vet. App. Dec. 28, 2015),
explaining that, “[i]n its attempt to rate by analogy, it ap-
pears that the Board explains that Mr. Wilkins is not enti-
tled to a compensable disability rating . . . because he fails
to meet the requirements for a listed [condition].” Id. at *3.
In the Wilkins court’s view, the Board’s “discussion [was]
troubling because, if Mr. Wilkins had the symptoms of Di-
agnostic Code 7522, then rating by analogy would not be
necessary.” Id.
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WEBB v. MCDONOUGH 9

Court’s conclusion, Williams requires no such thing.
There, a veteran simply sought a rating under DC 7522,
arguing that he had both ED and a deformity. Williams,
30 Vet. App. at 135–36. The Williams court remanded for
the Board to determine, in the first instance, whether the
veteran’s internal deformity was indeed a “deformity” as
contemplated by DC 7522. Id. at 138. In other words, the
veteran in Williams explicitly claimed that he met each of
the requirements of the diagnostic code under which he
sought benefits. This case is readily distinguishable—all
parties agree that Mr. Webb does not meet each of the re-
quirements of DC 7522. That is, of course, why he seeks to
be rated by analogy and not directly under a listed code.
The government cites to Green v. West for the proposi-
tion that, “[o]nce a diagnostic code [is] assigned for an anal-
ogous rating . . . , application of the criteria and the ratings
for that code [is] required.” 11 Vet. App. 472, 475 (1998);
see Appellee’s Br. 11–12. In the government’s view, Green
counsels in favor of affirmance. But just as Williams does
not support the government’s and Veterans Court’s posi-
tion, neither does this one isolated sentence in Green. The
context of this sentence is instructive. In Green, the VA
had erroneously applied an outdated version of the Rating
Schedule to a veteran’s case. Id. at 475. In the cited para-
graph, the Veterans Court explained to the Board that, on
remand, it had to apply the rating schedule as currently
written, i.e., as amended, which would be more favorable
to the veteran. Id. (“The [Board is] required to reevaluate
the veteran’s claim using the amended rating schedule.”).
In other words, this sentence in Green was not speaking
broadly about how rating by analogy should be accom-
plished in all instances. Rather, properly taken in context,
this statement simply informs the VA that, when deter-
mining which listed condition should be used to rate a vet-
eran’s condition by analogy, it must apply the relevant
version of the rating schedule.
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10 WEBB v. MCDONOUGH

In this case, Mr. Webb seeks to have his unlisted con-
dition rated by analogy under § 4.20, which explicitly does
not require that he demonstrate that his condition is iden-
tical to a listed one. But no agency or court has yet appro-
priately applied the explicit requirements of § 4.20 to
Mr. Webb’s case. Instead, the Veterans Court concluded
that he is not entitled to benefits because his unlisted con-
dition did not meet each of the criteria of a listed condi-
tion—a requirement not present in the words of the
regulation. Because the Veterans Court thus misinter-
preted the requirements of § 4.20, we vacate and remand
for that court to “suit the action to the word, the word to
the action,” 4—in other words, to reconsider Mr. Webb’s
case under a proper understanding of § 4.20 as informed by
this opinion.
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.

4 WILLIAM SHAKESPEARE, HAMLET act 3, sc. 2, ll. 18–
19.