United States Court of Appeals for the Federal Circuit
2008-7111
PATRICIA L. AMBERMAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.
L. Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent-appellee.
With him on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr.,
Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant
General Counsel, and Michael G. Daugherty, Attorney, Office of the General Counsel,
United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge William A. Moorman
United States Court of Appeals for the Federal Circuit
2008-7111
PATRICIA L. AMBERMAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-1160, Judge
William A. Moorman.
___________________________
DECIDED: June 29, 2009
___________________________
Before LOURIE, GAJARSA, and PROST, Circuit Judges.
GAJARSA, Circuit Judge.
This case involves the appropriate disability rating for a veteran, Patricia
Amberman, suffering from two service-connected mental disorders—bipolar affective
disorder and post-traumatic stress disorder (“PTSD”)—the symptoms of which may
overlap. Ms. Amberman appeals from a final decision of the Court of Appeals for
Veterans Claims (“Veterans Court”) which affirmed the finding of the Board of Veterans
Appeals (“Board”) that her disorders had properly been rated together. Because the
Veterans Court properly interpreted 38 C.F.R. § 4.14 to prohibit separately rating the
same symptoms merely because those symptoms have multiple causes, we affirm.
BACKGROUND
Ms. Amberman served on active duty in the Army from August 1977 to October
1980. In 1981, she was granted service-connection for manic depression, but assigned
a noncompensable disability rating. After Ms. Amberman was hospitalized in 1993, her
condition was reclassified as bipolar affective disorder with alcohol dependence, and
she was assigned a 30% disability rating. Ms. Amberman subsequently filed a claim for
service connection for PTSD in 1995. After undergoing a VA examination in 1998, Ms.
Amberman’s original bipolar diagnosis was confirmed, and she was also found to suffer
from PTSD. Her claim for service connection for PTSD was denied by the Regional
Office (“RO”) in 1999, but granted by the Board on appeal in 2001. The Board
remanded her claim to the RO for consideration of “the impairment from the PTSD in
[the RO’s] evaluation of the veteran’s service-connected psychiatric disability.”
On remand, the RO assigned a 70% disability rating for the bipolar disorder, and
a noncompensable rating for the PTSD. Ms. Amberman appealed, and the Board
remanded for the RO to “adjudicate the issue of whether the May 2002 rating decision
assigning a separate rating for PTSD was based on clear and unmistakable error.” In
November 2002, the RO determined that it had committed clear and unmistakable error
(“CUE”) by rating the two disorders separately. As a result, it revised its prior decision,
rated the two disorders together, and assigned a 70% disability rating. In March 2003,
the Board increased Ms. Amberman’s disability rating to 100% upon finding total
disability based on individual unemployability.
Ms. Amberman subsequently appealed both the effective date of the 100%
rating, and the RO’s conclusion that it constituted CUE to rate her disorders separately
2008-7111 2
and combine the ratings. In December 2005, the Board affirmed the CUE finding,
stating that “the record did not contain competent clinical evidence which distinguished
manifestations of the service-connected PTSD from the manifestations of the service-
connected bipolar affective disorder with alcohol dependence,” and remanded for an
evaluation of the appropriate effective date. Ms. Amberman appealed to the Veterans
Court, which affirmed the finding of CUE in the RO decision that had separately rated
her bipolar disorder and PTSD. The Veterans Court entered its judgment on April 1,
2008, and Ms. Amberman filed her notice of appeal on May 27, 2008. We have
jurisdiction over this appeal pursuant to 38 U.S.C. § 7292(c) (2006). 1
ANALYSIS
By statute, this court has limited authority to review the Veterans Court’s
interpretation of a regulation. See 38 U.S.C. § 7292(d)(1) (2006); Sursely v. Peake,
551 F.3d 1351, 1354 (Fed. Cir. 2009). In particular, this court may reverse regulatory
interpretations only if the interpretation is “(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B) contrary to constitutional right,
power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or
limitations, or in violation of a statutory right; or (D) without observance of procedure
required by law.” 38 U.S.C. § 7292(d)(1). We are also precluded from reviewing factual
1
This appeal concerns Ms. Amberman’s future access to benefits in the
event that certain rating decisions are changed. It is worth noting that she currently has
been assigned a 100% rating, and that this appeal does not affect the effective date of
that determination. She seeks separate ratings for her two service-connected disorders
because if her two disorders are rated separately, and each is rated at a sufficiently
severe level, she might become entitled to special monthly compensation under
38 U.S.C. § 1114(s) (2006).
2008-7111 3
determinations relied on by the Veterans Court absent a constitutional issue.
Id. § 7292(d)(2).
The regulation at issue here, 38 C.F.R. § 4.14, deals with the appropriate rating
to be assigned to a veteran whose service-connected disabilities are subject to multiple
classifications. It provides in full:
The evaluation of the same disability under various
diagnoses is to be avoided. Disability from injuries to the
muscles, nerves, and joints of an extremity may overlap to a
great extent, so that special rules are included in the
appropriate bodily system for their evaluation. Dyspnea,
tachycardia, nervousness, fatigability, etc., may result from
many causes; some may be service connected, others, not.
Both the use of manifestations not resulting from service-
connected disease or injury in establishing the service-
connected evaluation, and the evaluation of the same
manifestation under different diagnoses are to be avoided.
38 C.F.R. § 4.14 (2008). Ms. Amberman’s principal argument is that her separately
diagnosed bipolar affective disorder and PTSD do not constitute the “same disability” as
contemplated by section 4.14 and therefore should have been rated separately.
In general, the statutory structure of disability benefits for veterans seeks to
compensate veterans who are injured in service. 38 U.S.C. §§ 1110, 1131 (2006) (“For
disability resulting from personal injury suffered or disease contracted in line of duty, . . .
the United States will pay to any veteran thus disabled . . . compensation as provided in
this subchapter . . . .”). The Secretary of Veterans Affairs is charged with administering
these benefits, 38 U.S.C. § 1155 (2006), and has promulgated disability rating tables
that “represent as far as can practicably be determined the average impairment in
earning capacity resulting from such diseases and injuries and their residual conditions
in civil occupations.” 38 C.F.R. § 4.1 (2008). Pursuant to statute and regulation, each
2008-7111 4
disabled veteran receives a single disability rating, which determines the amount of
compensation the veteran will receive. 38 U.S.C. § 1155 (“The Secretary shall adopt
and apply a schedule of ratings of reductions in earning capacity from specific injuries or
combination of injuries.”); id. § 1114 (setting out the amount of compensation available
for each disability rating). “The basis of disability evaluations is the ability of the body as
a whole, or of the psyche . . . to function under the ordinary conditions of daily life
including employment.” 38 C.F.R. § 4.10. With respect to mental health disorders, the
amount of impairment is measured by the social and occupational difficulties caused by
the veteran’s disorder. See id. § 4.130. Although different diagnostic codes are used
for different disorders, almost all psychiatric disorders are rated based on the same
criteria. Id.
Ordinarily, separately diagnosed injuries are rated individually. Because
disability compensation is based on the entire person of the veteran, the ratings are
then combined into a single rating as set forth at 38 C.F.R. § 4.25 to determine the
overall impairment of the veteran. Consistent with that rationale, there is an exception
to the ordinary process of separately rating and then combining ratings: VA regulations
caution against making multiple awards for the same physical impairment simply
because that impairment could be labeled in different ways. Id. § 4.14. It is the
veteran’s overall disability that is relevant, not the name of the causative disorder or
disorders. When two ratings covering the same disability are combined, it is called
“pyramiding.” Id.
This court has had little opportunity to address the meaning of section 4.14. The
Veterans Court, however, has done so. In Esteban v. Brown, the Veterans Court was
2008-7111 5
presented with a veteran who had suffered a service-connected facial injury. 6 Vet.
App. 259 (1994). That injury resulted in (1) disfigurement, (2) painful scars, and
(3) muscle damage that made it difficult to chew. Id. at 261. Any of these three
problems, taken alone, would have been subject to a 10% disability rating, and each
would have been rated under a different diagnostic code. Id. at 260. The Board applied
section 4.14 and determined that Mr. Esteban could receive only a single rating. The
Veterans Court reversed. Because each diagnostic code dealt with different symptoms
(cosmetic issues, pain, and difficulty chewing, respectively), the Veterans Court held
that they did not constitute the “same disability” or “same manifestation,” and therefore
section 4.14 was inapplicable. Id. at 261–62. The Veterans Court explained that “[t]he
critical element is that none of the symptomatology for any one of these three conditions
is duplicative of or overlapping with the symptomatology of the other two conditions.”
Id. at 262. We agree with the Veterans Court that two defined diagnoses constitute the
same disability for purposes of section 4.14 if they have overlapping symptomatology.
We recognize that bipolar affective disorder and PTSD could have different
symptoms and it could therefore be improper in some circumstances for the VA to treat
these separately diagnosed conditions as producing only the same disability. In this
case, however, the Veterans Court found that there were no manifestations of one
mental disorder that were not also manifestations of the other. This is a factual finding
that is beyond our purview. To the extent Ms. Amberman believes that the facts are
otherwise, the Board expressly provided that if “the record ever subsequently contains
competent clinical evidence which distinguishes manifestations of the service-
connected PTSD from manifestations of the service-connected bipolar affective disorder
2008-7111 6
with alcohol dependence, the disabilities may be assigned separate ratings.” We agree
with the Veterans Court’s decision to affirm the Board’s finding of CUE, as it properly
applied the standard adopted above, and previously set out in Esteban.
Ms. Amberman argues that the two mental disorders cannot be the same
disability because “[b]ased on the undisputed facts concerning the timing of the
separate diagnoses and the very different circumstances which gave raise [sic] to these
different psychiatric diseases, there was no factual or legal basis for these separate
illnesses to be evaluated as producing only the same disability.” Appellant’s Br. 15–16.
This argument fails, because it focuses on the cause of the disorder, rather than the
manifestations of the disorder. Section 4.14 clearly contemplates that several
separately diagnosed disorders may have a single manifestation, and it clearly prohibits
the VA from rating that manifestation for each disorder. See 38 C.F.R. § 4.14 (“[T]he
evaluation of the same manifestation under different diagnoses [is] to be avoided.”).
Finally, at oral argument Ms. Amberman’s counsel presented an entirely new
theory of error. Oral Arg. 3:30–4:20, March 30, 2009, available at
http://oralarguments.cafc.uscourts.gov. Counsel argued that because section 4.14
depends on an evaluation of the symptoms—a question of weighing facts—the RO’s
decision whether to apply it can never constitute CUE. Ordinarily, we deem counsel’s
failure to raise an argument in its opening brief a waiver of that argument. SmithKline
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). In any case, we
find this argument unpersuasive—a misapplication of section 4.14 can constitute CUE.
CUE may be found based upon an error of fact or law. See 38 C.F.R. § 20.1404(b)
(2008) (explaining that when a veteran asserts CUE the motion must specifically identify
2008-7111 7
the error of fact or law). This court has held that to constitute CUE “the error must have
been made on the record as it existed at the time the decision was made.” Cook v.
Principi, 318 F.3d 1334, 1343 (Fed. Cir. 2002) (en banc). Therefore, any fact-based
CUE finding necessarily results from the VA identifying an error in how it initially
weighed evidence, based on the same record. Thus, Ms. Amberman’s argument fails.
CONCLUSION
For the foregoing reasons, the decision of the Veterans Court is affirmed.
AFFIRMED
COSTS
No costs.
2008-7111 8