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March 28, 2009

FedCir. meaning of conjunctive "and", Boyle v. Nicholson, Non-precedential

Filed under: conjunctive "and"; Boyle; Watson v. Dept. Navy; — veteranclaims @ 7:20 pm

BOYLE v. NICHOLSON, No. 2007-7074 (CAFC May 23, 2007)
Note: This disposition is nonprecedential.

TAGS: Watson v. Dep’t of the Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001).
[The inclusion of the conjunctive “and” in sections 831.902 and 842.802 clearly indicates that all three criteria must be demonstrated in order for a position to be LEO-eligible.]

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The use of the conjunctive “and” means that there are three “elements” to the forty percent rating that Mr. Boyle had to meet. See Watson v. Dep’t of the Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001).

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United States Court of Appeals for the Federal Circuit
2007-7074
JOHN T. BOYLE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
John T. Boyle, of Hernando Beach, Florida, pro se.
Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division, UnitednStates Department of Justice, of Washington, DC, for respondent-appellee. With him on thenbrief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, andnSteven J. Gillingham, Assistant Director. Of counsel on the brief were Michael J. Timinski,nDeputy Assistant General Counsel, and Michael G. Daugherty, Attorney, United States
Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims
Judge Bruce E. Kasold.NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2007-7074
JOHN T. BOYLE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
DECIDED: May 23, 2007
Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.
PER CURIAM.
DECISION

John T. Boyle appeals from the September 20, 2006 decision of the United
States Court of Appeals for Veterans Claims (“Veterans Court”) that affirmed the
decision of the Board of Veterans’ Appeals (“Board”) denying his request (1) for revisionn of a May 1980 final rating decision based on clear and unmistakable error (“CUE”); (2) for revision of a November 1996 final rating decision based on CUE; and (3) for an.earlier effective date for his one hundred percent disability rating for diabetes mellitus. Boyle v. Nicholson, No. 05-0990 (Vet. App. Sept. 20, 2006). We affirm.

DISCUSSION
I.
Mr. Boyle served on active duty in the United States Army from August 1976 until
April 1980. His service ended when he was found unfit for duty because of insulin
dependent diabetes mellitus. After separation, Mr. Boyle filed for disability
compensation. In May 1980, the Veterans Administration (“VA”) found Mr. Boyle’s
diabetes service-connected and assigned a twenty percent rating, effective from April 11, 1980 (the day after separation). See 38 C.F.R. § 4.119, Diagnostic Code 7913 (1979). Mr. Boyle did not appeal the May 1980 rating decision. In September 1994, Mr. Boyle filed a claim for an increased rating for his service-connected diabetes mellitus.
In November 1996, the VA increased the diabetes rating to sixty percent and granted service connection for other medical problems associated with the diabetes, resulting in a combined rating of seventy percent. Mr. Boyle did not appeal the November 1996 rating decision.
In January 1998, Mr. Boyle filed another claim for an increased rating for service-connected diabetes mellitus. In August 1999, the VA assigned a one hundred percent rating, effective March 26, 1998. Mr. Boyle filed a notice of disagreement with the effective date, in response to which the VA amended the effective date to January 5, 1998. Mr. Boyle appealed the assignment of a January 5, 1988 effective date to the Board. In his appeal to the Board, Mr. Boyle also alleged clear and unmistakable error (“CUE”) in the May 1980 and the November 1996 rating decisions. The Board

2007-7074 2.

determined that there was not a CUE in either of the earlier rating decisions and that
there was no evidence to support an earlier effective date for the one hundred percent
rating for service-connected diabetes mellitus. Mr. Boyle appealed the Board’s decision
to the Veterans Court.
On September 20, 2006, the Veterans Court issued an order affirming the
decision of the Board. Boyle, No. 05-0990, slip op. at 3. The Veterans Court stated that
Mr. Boyle’s CUE arguments amounted to “a disagreement with how the facts were
weighed in the 1980 and 1996 rating decisions.” Id. at 1. For the 1980 rating decision,
the Veterans Court explained that even if it accepted Mr. Boyle’s view that he was
required to avoid strenuous occupational activities, that was only one factor for
consideration in determining his rating. Id. Further, the Board found that the evidence
at the time “included no assigned profile restriction on his activities and no evidence of
high insulin usage, also factors to be considered for a 40% rating.” Id.
Turning to the 1996 rating decision, the Veterans Court concluded that the
Board’s determinations that there was no evidence of record in November 1996
showing that Mr. Boyle was hospitalized three or more times per year for ketoacidosis
or hypoglycemic reactions or that he had weekly visits to a diabetic care provider were
supported by the record and not clearly erroneous. Id. at 2 (citing 38 C.F.R. § 4119,
Diagnostic Code 7913 (1996)). Had these matters been established, Mr. Boyle may
have been entitled to a one hundred percent rating. See 38 C.F.R. § 4119, Diagnostic
Code 7913, 100 rating (1996).
Finally, addressing Mr. Boyle’s request for an earlier effective date for his one
hundred percent rating, the Veterans Court concluded that the evidence did not support

2007-7074 3.

Mr. Boyle’s claim that he had made weekly visits for diabetic care prior to January 5,
1998. Id. The Veterans Court pointed out that, at most, the evidence supported
monthly visits, not weekly visits, and that the records did not show that “his visits were
the result of a hypoglycemic reaction, as required for the 100% disability rating.” Id.
Following the decision of the Veterans Court, Mr. Boyle timely appealed to this
court. We have jurisdiction over his appeal pursuant to 38 U.S.C. § 7292(a).
II.
Our jurisdiction to review Veterans Court decisions is limited by statute.
Specifically, except in an appeal involving a constitutional challenge, we “may not
review (A) a challenge to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). We
may, however, “review and decide any challenge to the validity of any statute or
regulation, or any interpretation thereof” by the Veterans Court. 38 U.S.C. § 7292(c);
see Forshey v. Prinicipi, 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en banc).
On appeal, Mr. Boyle challenges the decision of the Veterans Court sustaining (i)
the rulings of the Board that the 1980 and 1996 ratings decisions were not tainted by
CUE; and (ii) the Board’s affirmance of the VA’s award of a January 5, 1998 effective
date for the one hundred percent disability rating.
As indicated above, in May of 1980, the VA assigned Mr. Boyle a twenty percent
disability rating, and in November of 1996, it increased the rating to sixty percent. Mr.
Boyle argues that the 1980 rating was the product of CUE because the Board
incorrectly “weighed” the criteria in 38 C.F.R. § 4.119 Diagnostic Code 7913 (1979) for a
forty percent rating. He contends that the 1996 rating was the product of CUE and that

2007-7074 4.

the Board erred in refusing to find an earlier effective date for his one hundred percent
rating because the Board misinterpreted 38 C.F.R. § 4.119 Diagnostic Code 7913
(1998).1 We address these contentions in turn.
III.
Focusing on the 1980 rating decision, Mr. Boyle argues that under Diagnostic
Code 7913, 38 C.F.R. § 4.119, 20 rating (1979), a twenty percent rating for diabetes
mellitus requires that there be no limitation of physical activity. This, he asserts, is the
consequence of the word “without” in the Diagnostic Code. He argues that “without”
means “none-no limitation.”2 He continues that the only other difference between the
twenty percent rating he was assigned and the forty percent rating that he asserts he
should have been assigned is the insulin dosage, which is vague. In that regard, he
argues that the rater should have known what a large dosage is and that he was
receiving such a dosage.
Although Mr. Boyle’s arguments are close to the application of law to the facts of
his particular case, we recognize within his arguments possible purely legal challenges.
However, we discern no error by the Veterans Court with respect to the physical
activities limitation in the regulation. At the same time, as the Secretary correctly
argues, at the time of the 1980 rating decision, for a forty percent rating, the regulation
required a “large insulin dosage, restricted diet, and careful regulation of activities.” 38
C.F.R. § 4119 Diagnostic Code 7913, 40 rating (1979). The use of the conjunctive

1 Because the requirements for the one hundred percent rating and the sixty percent rating were the same in both 1996 and 1998, for convenience, we refer to the 1998 version of the regulation.

2 The twenty percent rating requires “moderate insulin . . . dosage,” while the forty percent rating requires a “large insulin dosage.”

2007-7074 5.

“and” means that there are three “elements” to the forty percent rating that Mr. Boyle had to meet. See Watson v. Dep’t of the Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001).
To the extent that the Board found that Mr. Boyle’s insulin dosage did not meet the requirement for a rating higher than twenty percent, we are presented with a factual question that is beyond the scope of our review. See In re Boyle, No. C29593793, slip op. at 9 (Apr. 6, 2005).
As far as the 1996 rating decision and the Board’s denial of an earlier effective
date are concerned, Mr. Boyle’s principal argument is that the Veterans Court erred because it misinterpreted 38 C.F.R. § 4.119, Diagnostic Code 7913, 100 rating (1998), when it required that his “weekly visits to the doctors must be the result of hypoglycemia.” According to Mr. Boyle, the regulation is properly read to mean that hospitalizations are required to be the result of hypoglycemia or ketoacidosis, but that regular diabetic care visits are not. The Board found (and the Veterans Court affirmed the finding as supported by the evidence of record) that there is no evidence of record showing weekly visits for diabetic care prior to 1998. Boyle, No. 05-0990, slip op. at 2.
This finding of fact, which is beyond the jurisdiction of this court to review, puts Mr. Boyle’s rating somewhere below the sixty percent rating that was assigned in the 1996 rating decision. Compare 38 C.F.R. § 4.119, Diagnostic Code 7913, 100 rating (1998) (“Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities)[,] with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider . . . .”) with id., 60 rating (“Requiring insulin, restricted diet, and regulation of activities with episodes of

2007-7074 6.

ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider . . . .”). Thus even under Mr. Boyle’s interpretation of the regulation (that the weekly diabetic visits are not required to be the result of hypoglycemia or ketoacidosis), Mr. Boyle’s challenge to the 1996 rating decision and his claim of an earlier effective date fails based upon findings of fact that we may not disturb.
We have considered Mr. Boyle’s other arguments (including his constitutional
claims) and have found them to be without merit. The decision of the court is therefore
affirmed.
Each party shall bear its own costs.

2007-7074 7

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