Veteranclaims’s Blog

March 17, 2022

Martinez-Bodon v. McDonough, No. 2021-1328 (Decided: March 15, 2022); 38 C.F.R. §§ 4.125(a) and 4.130 require a DSM–5 diagnosis as a precondition to compensate a mental condition; In Saunders, we held that pain that reaches the level of a “functional impairment of earning capacity” could constitute a “disability” under 38 U.S.C. § 1110. Saunders, 886 F.3d at 1367–68;

United States Court of Appeals for the Federal Circuit


LUIS A. MARTINEZ-BODON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1328


Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3721, Chief Judge Margaret C.
Bartley, Judge Joseph L. Falvey Jr., Judge Michael P. Allen.


Decided: March 15, 2022


CHRISTIAN ARTHUR MCTARNAGHAN, Chisholm
Chisholm & Kilpatrick, Providence, RI, argued for claimant-
appellant. Also represented by BARBARA J. COOK,
APRIL DONAHOWER, ZACHARY STOLZ; MEGAN BRITTNEY
HALL, Disabled American Veterans, Cold Spring, KY.
MEEN GEU OH, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.; JONATHAN
Case: 21-1328 Document: 40 Page: 1 Filed: 03/15/2022
MARTINEZ-2 BODON v. MCDONOUGH
KRISCH, Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.


Before REYNA, CLEVENGER, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Luis Martinez-Bodon appeals the decision of the
United States Court of Appeals for Veterans Claims affirming
a Board of Veterans’ Appeals decision that Mr. Martinez-
Bodon is not entitled to service connection for a
mental condition. Because we agree with the Veterans
Court that 38 C.F.R. §§ 4.125(a) and 4.130 require a
DSM–5 diagnosis as a precondition to compensate a mental
condition
, we affirm.
I
Mr. Martinez-Bodon served on active duty in the U.S.
Army from August 1967 to March 1969. In April 2016, he
filed a claim for benefits for diabetes and for anxiety secondary
to his diabetes. At his Veterans Affairs psychiatric
examination in September 2016, Mr. Martinez-Bodon reported:
“I can’t sleep well, my right eye trembles too much
and that bothers me and I get very anxious about it.”
Appx31. He denied having other symptoms. The VA examiner
found that these symptoms did not meet the “criteria
for a mental condition as per DSM–5” and thus concluded
that she could not establish a relationship between
Mr. Martinez-Bodon’s diabetes and anxiety. Appx29, 34.
The VA therefore granted him service connection for diabetes
but denied him service connection for a mental condition.
Mr. Martinez-Bodon appealed that denial to the Board
of Veterans’ Appeals, but the Board reached the same result.
He then appealed to the United States Court of Appeals
for Veterans Claims, arguing that even without a
formal diagnosis, his symptoms constitute a disability for
Case: 21-1328 Document: 40 Page: 2 Filed: 03/15/2022
MARTINEZ-BODON v. MCDONOUGH 3
service-connection purposes under this court’s definition of
“disability” in Saunders v. Wilkie, 886 F.3d 1356, 1363
(Fed. Cir. 2018). The Veterans Court rejected Mr. Martinez-
Bodon’s argument and affirmed the Board’s decision,
interpreting two regulations, 38 C.F.R. §§ 4.125(a)
and 4.130, “to require a DSM–5 diagnosis as a precondition
to compensate mental conditions.” Martinez-Bodon v.
Wilkie, 32 Vet. App. 393, 401 (Vet. App. 2020) (Veterans
Court Decision). Mr. Martinez-Bodon appeals.
II
Under 38 U.S.C § 7292(a), we have jurisdiction to review
a Veterans Court decision “with respect to the validity
of a decision of the Court on a rule of law or of any statute
or regulation . . . or any interpretation thereof . . . that was
relied on by the Court in making the decision.” We review
statutory and regulatory interpretations of the Veterans
Court de novo. Gazelle v. Shulkin, 868 F.3d 1006, 1009
(Fed. Cir. 2017). Unless an appeal from a Veterans Court
decision presents a constitutional issue, we lack jurisdiction
to 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
We first address the role of Saunders in this case. In
Saunders, we held that pain that reaches the level of a
“functional impairment of earning capacity” could constitute
a “disability” under 38 U.S.C. § 1110. Saunders, 886
F.3d at 1367–68
. Before the Veterans Court, Mr. Martinez-
Bodon argued that requiring a formal diagnosis of a mental
condition to establish service connection is inconsistent
with that holding. Specifically, Mr. Martinez-Bodon asserted
“that the holding in Saunders extends to more than
just pain and ‘encompasses any undiagnosed disability
that results in functional loss.’” Veterans Court Decision at
396.
Case: 21-1328 Document: 40 Page: 3 Filed: 03/15/2022
MARTINEZ-4 BODON v. MCDONOUGH
Saunders does not apply in these circumstances. As we
recently explained in Larson v. McDonough, “Saunders articulated
a definition of ‘disability’ for § 1110 purposes that
is distinct from and not coextensive with disabilities listed
on the rating schedule.” 10 F.4th 1325, 1329 (Fed. Cir.
2021). The question raised in Saunders was whether conditions
not on the rating schedule may still be considered
for service connection purposes under § 1110. That is not
the question raised here. Here, we have a specific ratings
table for mental conditions, § 4.130, and the veteran is
seeking a rating under that table. Because §§ 4.125
and 4.130 speak precisely to the issue raised, they must
govern. To the extent Mr. Martinez-Bodon asks us to review
the actual contents of that ratings table, we lack jurisdiction
to do so. See Wanner v. Principi, 370 F.3d 1124,
1129 (Fed. Cir. 2004); Wingard v. McDonald, 779 F.3d
1354, 1357 (Fed. Cir. 2015).
B
Mr. Martinez-Bodon argues that the Veterans Court
wrongly interpreted 38 C.F.R. §§ 4.125(a) and 4.130, and
we have jurisdiction to review the Board’s interpretation of
those regulations. We must determine whether § 4.125(a)
and the rating schedule in § 4.130 require a mental condition
to be formally diagnosed in order for compensation to
be awarded. We hold that they do.
We begin with the relevant regulations. “In construing
regulatory language, we must read the disputed language
in the context of the entire regulation as well as other related
regulatory sections in order to determine the language’s
plain meaning.” Vazquez-Claudio v. Shinseki, 713
F.3d 112, 115 (Fed. Cir. 2013). The preamble to the schedule
of ratings for mental disorders in § 4.130 reads:
The nomenclature employed in this portion of the
rating schedule is based upon the American Psychiatric
Association’s Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition (DSM–
Case: 21-1328 Document: 40 Page: 4 Filed: 03/15/2022
MARTINEZ-BODON v. MCDONOUGH
5) (see§ 4.125 for availability information). Rating
agencies must be thoroughly familiar with this
manual to properly implement the directives in
§ 4.125 through § 4.129 and to apply the general
rating formula for mental disorders in § 4.130.
5
38 C.F.R. § 4.130 (2020) (emphasis added). The preamble
emphasizes the centrality of the DSM-5 to diagnosing and
rating mental disorders for service connection and requires
examiners to be familiar with its contents. Section 4.130
then goes on to list diagnostic codes for over 30 mental disorders
and provides a general 1·ating formula for mental
disorders, as excerpted below:
Occupational and social impairment with occasional
decrease in work efficiency and intermittent
periods of inability to perform
occupational tasks (although gene1·ally functioning
satisfactorily, with routine behavior,
self-care, and conversation nm·mal), due to
such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less
often), chronic sleep impaii·ment, mild
memm·y loss (such as forgetting names, directions,
recent events). 1
Occupational and social impairment due to
mild or transient symptoms which decrease
wm·k efficiency and ability to perform occupational
tasks only during periods of significant
sti·ess, or symptoms controlled by
continuous medication.
A mental condition has been formally diagnosed,
but symptoms are not severe enough
eithe1· to interfere with occupational and social
functioning 01· to require continuous
medication.

  • I
    Rating
    30
    10
    0
    Case: 21-1328 Document: 40 Page: 5 Filed: 03/15/2022
    MARTINEZ-6 BODON v. MCDONOUGH
    Id. (emphasis added)
    38 C.F.R. § 4.125, entitled “Diagnosis of mental disorders,”
    reads:
    (a) If the diagnosis of a mental disorder does not
    conform to DSM–5 or is not supported by the findings
    on the examination report, the rating agency
    shall return the report to the examiner to substantiate
    the diagnosis. Diagnostic and Statistical Manual
    of Mental Disorders, Fifth Edition (DSM–5),
    American Psychiatric Association (2013), is incorporated
    by reference into this section . . . .
    38 C.F.R. § 4.125(a) (2020) (emphasis added).
    Section 4.125(a) must be read in conjunction with
    § 4.130 because “regulations that precede the rating schedule
    for [a condition] explain how to arrive at proper evaluations
    under the [diagnostic codes] appearing in the
    disability rating schedule.” Petitti v. McDonald, 27 Vet.
    App. 415, 424 (2015). Thus, § 4.125(a) instructs that a veteran
    must first have a mental disorder diagnosis consistent
    with the DSM–5 before the veteran can proceed to rating
    under § 4.130. Again, both regulations emphasize the importance
    of the DSM–5 to diagnosis and rating, incorporating
    the manual by reference and indicating that a DSM–5
    diagnosis is required for service connection.
    The zero percent rating level explicitly requires that
    “[a] mental condition has been formally diagnosed.”
    § 4.130. Mr. Martinez-Bodon argues that the absence of
    that language from the other rating levels means that no
    diagnosis is required above the 0% level. However, the ratings
    regime must be read as a whole. And the structure of
    the entire ratings table indicates that each higher level includes
    the same baseline requirement: a diagnosis. Each
    rating level is based on severity, with symptoms and occupational
    and social impairments increasing in severity
    with each step up in rating. As the Veterans Court
    Case: 21-1328 Document: 40 Page: 6 Filed: 03/15/2022
    MARTINEZ-BODON v. MCDONOUGH 7
    reasoned, “[t]his upwardly cascading nature of the rating
    criteria, when read in the context of the introductory paragraph’s
    emphasis on the DSM–5, plainly supports that
    § 4.130 requires a DSM–5 diagnosis in order to rate mental
    conditions at every rating level.” Veterans Court Decision
    at 400.
    Mr. Martinez-Bodon’s interpretation would mean that
    “a veteran would have to meet a more stringent requirement—
    a DSM–5 diagnosis—for a noncompensable rating
    than he or she would for a 30, 50, or 100% rating.” Id. We
    agree with the Veterans Court that such an absurd result
    should be avoided. See United States v. Turkette, 452 U.S.
    576, 580 (1981). If a DSM–5 diagnosis were required only
    at the zero percent level, then the regulations’ repeated emphasis
    on the DSM–5 would be rendered largely insignificant,
    if not superfluous. But “[i]t is our duty to give effect,
    if possible, to every clause and word” of the regulations.
    Duncan v. Walker, 533 U.S. 167, 174 (2001) (cleaned up). It
    cannot be that the DSM–5 is critical to rating and diagnosis
    at the noncompensable level but discarded at levels that
    could provide significant compensation.
    Mr. Martinez-Bodon next argues that the “if” at the beginning
    of § 4.125(a) indicates that the regulation is “conditional
    and applies only when a diagnosis is at issue in a
    case,” that is, “cases where a mental health disorder has
    been diagnosed.” Appellant’s Br. 16. In Mr. Martinez-Bodon’s
    view, if there has not been a diagnosis, then § 4.125
    does not apply, and the agency should proceed to rate a veteran’s
    symptoms anyway. But this interpretation is at odds
    with the regulatory framework, as discussed above. “If psychiatric
    symptoms without a DSM–5 diagnosis could be
    rated, then § 4.125(a) would be eliminated from consideration
    at all compensable rating levels under § 4.130 and
    would only apply at the noncompensable disability level.”
    Veterans Court Decision at 401. To give full effect to the
    regulation, § 4.125(a) is best read not as conditioned on
    Case: 21-1328 Document: 40 Page: 7 Filed: 03/15/2022
    MARTINEZ-8 BODON v. MCDONOUGH
    diagnoses, but as a requirement that a diagnosis be made
    for any rating to apply under § 4.130, which directly follows
    it.
    Other regulations for service connection also recognize
    § 4.125 as requiring a diagnosis in order for a veteran to
    proceed to rating. For example, the regulation governing
    service connection for posttraumatic stress disorder states
    that “[s]ervice connection for posttraumatic stress disorder
    requires medical evidence diagnosing the condition in accordance
    with § 4.125(a) of this chapter.” 38 C.F.R.
    § 3.304(f) (emphasis added). Mr. Martinez-Bodon argues
    that this shows that the Secretary knows how to explicitly
    require a diagnosis when intended and failed to do so at the
    compensable levels in § 4.130. However, the PTSD regulation
    makes specific reference to § 4.125(a) only because it
    is in a separate part of the chapter. Because § 4.130 directly
    follows § 4.125, there is no need to restate the requirement.
    C
    Responses made to comments on 1996 amendments of
    the regulations show that the VA understood them to unambiguously
    require a diagnosis. Before the amendments,
    §§ 4.125 and 4.126 included language similar to that in
    § 4.130’s preamble, stating that “it is imperative that rating
    personnel familiarize themselves thoroughly with [the
    DSM]” in order to rate psychiatric conditions. 38 C.F.R.
    § 4.125 (1996). Section 4.126 explicitly stated that “[i]t
    must be established first that a true mental disorder exists.
    The disorder will be diagnosed in accordance with the APA
    manual. A diagnosis not in accord with this manual is not
    acceptable for rating purposes and will be returned
    through channels to the examiner.” 38 C.F.R. § 4.126(a)
    (1996). Revisions effective in 1996 removed that language
    because it was already included in § 4.130, and thus need
    not be repeated:
    Case: 21-1328 Document: 40 Page: 8 Filed: 03/15/2022
    MARTINEZ-BODON v. MCDONOUGH 9
    [A] note in § 4.130 states that the nomenclature in
    the schedule is based on DSM–IV and that rating
    agencies must be thoroughly familiar with this
    manual to properly implement the directives in
    § 4.125 through § 4.129 and to apply the general
    rating formula for mental disorders in § 4.130. This
    information is direct and unambiguous, and therefore
    there is no need to include the same material in
    §§ 4.125 and 4.126.
    Schedule for Rating Disabilities; Mental Disorders, 61 Fed.
    Reg. 52,695, 52,696 (Oct. 8, 1996) (emphasis added).
    The DSM–5, incorporated by reference and subject to
    notice-and-comment rulemaking, provides a standardized
    guide for diagnosis upon which agency raters can rely. The
    plain language of the regulations, their structure, and their
    consistent emphasis on the DSM–5 lead us to conclude that
    a DSM–5 diagnosis is required for service connection to be
    awarded under § 4.130.
    III
    We have considered Mr. Martinez-Bodon’s remaining
    arguments and find them unpersuasive. Because 38 C.F.R.
    §§ 4.125(a) and 4.130 require a formal diagnosis as a precondition
    to compensate mental conditions, we affirm the
    Veterans Court’s decision denying Mr. Martinez-Bodon
    service connection for an anxiety disorder.
    AFFIRMED
    No costs.
    Case: 21-1328 Document: 40 Page: 9 Filed: 03/15/2022

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