Veteranclaims’s Blog

March 30, 2022

Slaughter v. McDonough, No. 2021-1367 (Decided: March 30, 2022); prejudicial error; Tadlock v. McDonough, 5 F.4th 1327, 1332–33 (Fed. Cir. 2021); In Shinseki v. Sanders, the Supreme Court explained that “the burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination” but that this is not “a particularly onerous requirement.” 556 U.S. 396, 409–10 (2009); The Supreme Court explained that an appellant may point to an allegedly erroneous ruling and “[o]ften the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said.” Id. at 410.; The Supreme Court also explained that because “Congress has expressed special solicitude for the veterans’ cause[,] . . . a reviewing court [might] consider harmful in a veteran’s case error that it might consider harmless in other circumstances.” Id. at 412.; The Veterans Court failed to comply with these instructions from the Supreme Court. Rather than looking to the circumstances of the case to see if the alleged error was harmful, the Veterans Court required Mr. Slaughter to specifically allege prejudice and “suggest or point to evidence showing that he would be entitled to a higher rating under DC 8512.” J.A. 7 (emphasis added). The Veterans Court should have looked to the circumstances of the case and not faulted Mr. Slaughter for insufficiently demonstrating prejudice;

Filed under: Uncategorized — veteranclaims @ 4:43 pm

United States Court of Appeals for the Federal Circuit


BILLY W. SLAUGHTER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1367


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2524, Judge Amanda L. Meredith.


Decided: March 30, 2022


KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
KELLY A. KRYSTYNIAK, Civil Division, Commercial Litigation
Branch, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by BRIAN M. BOYNTON, CLAUDIA BURKE,
MARTIN F. HOCKEY, JR., LIRIDONA SINANI; EVAN SCOTT
GRANT, BRIAN D. GRIFFIN, BRANDON A. JONAS, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 21-1367 Document: 44 Page: 1 Filed: 03/30/2022
2 SLAUGHTER v. MCDONOUGH


Before NEWMAN, REYNA, and CUNNINGHAM, Circuit
Judges.
CUNNINGHAM, Circuit Judge.
Billy W. Slaughter served on active duty in the United
States Navy for two decades from August 1975 to August 1995. J.A. 3. In June 2008, a Veterans Affairs (“VA”) Regional
Office determined that Mr. Slaughter, who is righthanded,
suffered right ulnar nerve1 entrapment as a result
of his service. J.A. 44. VA awarded him a 10% disability
rating under 38 C.F.R. § 4.124a, Diagnostic Code (“DC”)

J.A. 44; J.A. 35. Over the next several years, Mr.
Slaughter pursued a higher disability rating. During those
proceedings, which included several VA medical examinations,
examiners additionally diagnosed Mr. Slaughter
with a median nerve2 injury that has not been found to be
connected to his military service. J.A. 3–5.
Eventually, in December 2018, the Board of Veterans’
Appeals (“Board”) increased Mr. Slaughter’s rating for
right ulnar nerve entrapment to 40%. J.A. 32, 38. The
Board found that it could not distinguish the symptoms of
1 The ulnar nerve is a major nerve in the arm that
runs from the brachial plexus to the hand. It controls the
muscles that move the fingers and thumb and conveys sensation
from the fifth (little) finger, part of the fourth (ring)
finger, and the adjacent palm. Appellee’s Br. 3 n.3 (citing
Ulnar Nerve, Black’s Medical Dictionary (43rd ed. 2017)).
2 The median nerve also resides in the arm. It enervates
the outer side of the arm and hand, providing feeling
and movement to the thumb side of the hand, including the
thumb and first two fingers. Appellee’s Br. 5 n.7 (citing
Median Nerve, Black’s Medical Dictionary (43rd ed. 2017);
38 C.F.R. § 4.124a, DC 8515).
Case: 21-1367 Document: 44 Page: 2 Filed: 03/30/2022
SLAUGHTER v. MCDONOUGH 3
Mr. Slaughter’s service-connected ulnar nerve entrapment
from those of his non-service-connected median nerve injury.
J.A. 38. It, thus, attributed the entirety of the disability
to the service-connected right ulnar nerve injury and
awarded Mr. Slaughter a 40% disability rating for severe
incomplete paralysis of his right hand under DC 8516. J.A.

The Board determined that it would be inappropriate
to rate Mr. Slaughter under DC 8512, which provides ratings
for injuries to the lower radicular group,3 because only
Mr. Slaughter’s ulnar nerve entrapment was connected to
his service. J.A. 38.
On appeal, the Court of Appeals for Veterans Claims
(“Veterans Court”) affirmed the Board’s decision. J.A. 2–3.
The Veterans Court never addressed Mr. Slaughter’s substantive
argument that his disability should have been
rated under DC 8512. Rather, it found that Mr. Slaughter
had not shown prejudice stemming from the Board’s alleged
error in failing to consider a rating under DC 8512.
J.A. 7–8.
Mr. Slaughter appeals from the Veterans Court’s decision.
As we explain below, we have jurisdiction to hear his
appeal under 38 U.S.C. § 7292(c).
Although we hold that the Veterans Court legally erred
in its prejudicial error analysis, that error was itself harmless
because the Board correctly interpreted § 4.124a
.
Thus, we affirm.
I. DISCUSSION
Mr. Slaughter raises two arguments on appeal. He argues
that the Veterans Court applied the wrong standard
in its prejudicial error analysis. He also argues that the
3 The lower radicular group involves nerves enervating
“all intrinsic muscles of hand” and the flexors of the
wrist and fingers. 38 C.F.R. § 4.124a, DC 8512.
Case: 21-1367 Document: 44 Page: 3 Filed: 03/30/2022
4 SLAUGHTER v. MCDONOUGH
Board erred in its interpretation of 38 C.F.R. § 4.124a. We
address each argument in turn.
A. Prejudicial Error
As a preliminary matter, the government asserts that
the Veterans Court’s prejudicial error decision is a factual
decision outside of this court’s jurisdiction to review. Appellee’s
Br. 14. We disagree. We have expressly rejected
the proposition that we lack any jurisdiction to review the
Veterans Court’s prejudicial error determinations. Tadlock
v. McDonough, 5 F.4th 1327, 1332–33 (Fed. Cir. 2021)
.
As with all decisions from the Veterans Court, we have “jurisdiction
to review a ‘rule of law,’ including a rule established
by a judicial precedent of the Veterans Court,” but
we “may not review the application of law to the facts of a
particular case.” King v. Shinseki, 700 F.3d 1339, 1346
(Fed. Cir. 2012). Mr. Slaughter argues that the Veterans
Court applied the wrong standard when it required him to
show that the Board’s error resulted in lost benefits—a legal
error rather than a factual one. Appellant’s Opening
Br. 17–21. Thus, we have jurisdiction to address Mr.
Slaughter’s argument, and we do so here. We review the
issue of whether the Veterans Court applied the correct legal
standard without deference. Euzebio v. McDonough,
989 F.3d 1305, 1317–18 (Fed. Cir. 2021).
The Veterans Court applied too rigid of a prejudicial
error standard and placed too heavy a burden on Mr.
Slaughter to show prejudice. In Shinseki v. Sanders, the
Supreme Court explained that “the burden of showing that
an error is harmful normally falls upon the party attacking
the agency’s determination” but that this is not “a particularly
onerous requirement.” 556 U.S. 396, 409–10 (2009).
The Supreme Court explained that an appellant may point
to an allegedly erroneous ruling and “[o]ften the circumstances
of the case will make clear to the appellate judge
that the ruling, if erroneous, was harmful and nothing further
need be said.” Id. at 410.
The Supreme Court also
Case: 21-1367 Document: 44 Page: 4 Filed: 03/30/2022
SLAUGHTER v. MCDONOUGH 5
explained that because “Congress has expressed special solicitude
for the veterans’ cause[,] . . . a reviewing court
[might] consider harmful in a veteran’s case error that it
might consider harmless in other circumstances.” Id. at

The Veterans Court failed to comply with these instructions
from the Supreme Court. Rather than looking
to the circumstances of the case to see if the alleged error
was harmful, the Veterans Court required Mr. Slaughter
to specifically allege prejudice and “suggest or point to evidence
showing that he would be entitled to a higher rating
under DC 8512.” J.A. 7 (emphasis added).
The Veterans Court should have looked to the circumstances
of the case and not faulted Mr. Slaughter for insufficiently
demonstrating prejudice.
We note that the
circumstances here indicate that, if the Board erroneously
failed to consider a rating under DC 8512 rather than
DC 8516, the Board’s error likely caused prejudice. Mr.
Slaughter pointed out to the Veterans Court that DC 8512
and DC 8516 provide for different ratings for the same
symptoms. For example, a rating for severe incomplete paralysis
of a veteran’s dominant hand under DC 8516 (the
rating Mr. Slaughter received) is 40%. A rating for severe
incomplete paralysis of a veteran’s dominant hand under
DC 8512 is 50%. As the Veterans Court has previously
stated, “prejudice . . . can be shown by demonstrating that
the error . . . affected or could have affected the outcome of
the determination.” Simmons v. Wilkie, 30 Vet. App. 267,
279 (Vet. App. 2018), aff’d, 964 F.3d 1381 (Fed. Cir. 2020).
Although the Veterans Court erred in its prejudicial error
analysis, that error is, ultimately, harmless because the
Board did not err in finding that DC 8512 is not applicable
where the veteran’s only service-connected nerve injury is
to the ulnar nerve. We turn now to the Board’s interpretation
of the note in § 4.124a.
Case: 21-1367 Document: 44 Page: 5 Filed: 03/30/2022
6 SLAUGHTER v. MCDONOUGH
B. Interpretation of 38 C.F.R. § 4.124a
The government, again, argues that we lack jurisdiction
to entertain Mr. Slaughter’s arguments concerning the
Board’s interpretation of 38 C.F.R. § 4.124a as not permitting
a rating under DC 8512. Appellee’s Br. 11–14. The
government asserts that Mr. Slaughter’s appeal asks us to
review the Board’s selection of a certain diagnostic code
based on the facts of Mr. Slaughter’s diagnoses; something
we lack jurisdiction to do. Appellee’s Br. 12–14 (citing,
among other cases, Scott v. Wilkie, 920 F.3d 1375, 1378 n.1
(Fed. Cir. 2019)). We, again, disagree.
We have jurisdiction to “review and decide any challenge
to the validity of any statute or regulation or any interpretation
thereof” under 38 U.S.C. § 7292(c). We have
previously exercised jurisdiction in analogous cases where
a veteran has challenged the Board’s and Veterans Court’s
interpretations of regulations. For example, in Langdon v.
McDonough, we exercised jurisdiction to hear an appeal in
which a veteran challenged the Veterans Court’s interpretation
of a diagnostic code found in 38 C.F.R. § 4.71a.
1 F.4th 1008, 1009 (Fed. Cir. 2021). Similarly, we have jurisdiction
to review the interpretation of 38 C.F.R.
§ 4.124a.
Mr. Slaughter’s arguments on appeal are directed to
the interpretation of a note in 38 C.F.R. § 4.124a that
states “[c]ombined nerve injuries should be rated by reference
to the major involvement, or if sufficient in extent,
consider radicular group ratings.” He does not argue on
appeal that the Board erred in assigning a rating under DC
8516 rather than under DC 8512—a factual finding that
we would lack jurisdiction to review. Rather, he argues
that the Board legally erred in holding that DC 8512 is unavailable
where only one of two nerve injuries is serviceconnected.
Appellant’s Opening Br. 10–16. We have jurisdiction
to consider that legal issue.
Case: 21-1367 Document: 44 Page: 6 Filed: 03/30/2022
SLAUGHTER v. MCDONOUGH 7
That the Veterans Court did not address the Board’s
interpretation of 38 C.F.R. § 4.124a does not deprive us of
jurisdiction to decide the issue. “[A] question otherwise
permissible for our review under 38 U.S.C. § 7292 does not
fail the jurisdictional test simply because it was ignored or
silently rejected by the Court of Veterans Appeals.” Linville
v. West, 165 F.3d 1382, 1384–85 (Fed. Cir. 1999).
We review the Veterans Court’s interpretation of regulations
de novo. Hodge v. West, 155 F.3d 1356, 1361 (Fed.
Cir. 1998). As we find that the phrase “combined nerve injuries”
in the regulation at issue here, a note in § 4.124a,
unambiguously refers to service-connected injuries, we
need not defer to VA’s interpretation of the regulation. See
Kisor v. Wilkie, 139 S. Ct. 2400, 2414–15 (2019).
Mr. Slaughter argues that a service-connected injury to
one nerve (here, the ulnar nerve) and a non-service-connected
injury to a second nerve (here, the median nerve)
together constitute a “combined nerve injur[y]” under the
note in § 4.124a requiring that “[c]ombined nerve injuries
should be rated by reference to the major involvement, or
if sufficient in extent, consider radicular group ratings.” 38
C.F.R. § 4.124a; Appellant’s Opening Br. 10–16. We disagree
with Mr. Slaughter’s interpretation of “combined
nerve injuries.” We hold that “combined nerve injuries” in
the note refers to service-connected injuries, not to a combination
of service-connected and non-service-connected injuries.
Our conclusion is evidenced by the first sentence of 38
C.F.R. § 4.1, which states: “This rating schedule is primarily
a guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service.” 38 C.F.R. § 4.1 (emphasis
added). Nothing in the text of the note in § 4.124a indicates
that “injuries” in “combined nerve injuries” is meant to depart
from the understanding of the scope of the rating
schedule provided in § 4.1.
Case: 21-1367 Document: 44 Page: 7 Filed: 03/30/2022
8 SLAUGHTER v. MCDONOUGH
Where VA intends to refer to a non-service-connected
injury, or, more specifically, intends to treat a non-serviceconnected
injury as though it were service-connected, it
possesses the language to do so. In other regulations that
do not apply in this case, VA has articulated special provisions
for treating non-service-connected injuries as though
they were service-connected. For example, 38 C.F.R.
§ 3.383 provides that, where a veteran has “[l]oss or loss of
use of one kidney as a result of service-connected disability
and involvement of the other kidney as a result of nonservice-
connected disability,” “[c]ompensation is payable
for the combinations of service-connected and nonserviceconnected
disabilities . . . as if both disabilities were service-
connected.” 38 C.F.R. § 3.383(a)(2). Section 3.383 similarly
provides for treating non-service-connected injuries
as though they were service-connected for other paired organs,
such as the eyes, ears, lungs, or hands. We are aware
of no such provision providing for treating non-service-connected
nerve injuries as though they were service-connected.
4
4 At oral argument, Mr. Slaughter’s attorney identified
38 C.F.R. § 4.21 as providing for treating non-serviceconnected
nerve injuries as though they were service-connected.
Oral Arg. 30:20–30:50, https://oralarguments.
cafc.uscourts.gov/default.aspx?fl=21-1367_0110202
2.mp3. That provision provides:
In view of the number of atypical instances it is not
expected, especially with the more fully described
grades of disabilities, that all cases will show all
the findings specified. Findings sufficiently characteristic
to identify the disease and the disability
therefrom, and above all, coordination of rating
with impairment of function will, however, be expected
in all instances.
Case: 21-1367 Document: 44 Page: 8 Filed: 03/30/2022
SLAUGHTER v. MCDONOUGH 9
Section 3.383 shows that VA knew how to provide for
compensation of non-service-connected injuries as though
they were service-connected. It did not include any such
explicit provision in § 4.124a. In 38 C.F.R. § 4.14, VA
acknowledged that “[d]isability 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.” But, unlike
38 C.F.R. § 3.383(a)(2), those special rules do not provide
for treating non-service-connected injuries as though they
were service-connected. Rather, the relevant special rule
merely provides “[c]ombined nerve injuries should be rated
by reference to the major involvement, or if sufficient in extent,
consider radicular group ratings.” 38 C.F.R. § 4.124a.
As explained above, “injuries” in that note refers to serviceconnected
injuries.
Mr. Slaughter argues that the injury itself, and
whether that injury is or is not connected to military service,
is irrelevant because the law requires VA to rate disabilities,
not injuries. Appellant’s Reply Br. 6. We
disagree. Contrary to Mr. Slaughter’s assertion, a disability
rating, at least under § 4.124a, depends on both the injury
and the resulting disability. This is apparent in the
structure of the diagnostic codes themselves, which in
§ 4.124a are organized first by injured nerve or nerve group
and second by resultant disability. For example, DC 8516,
the diagnostic code under which the Board rated Mr.
Slaughter, reads as follows:
DC 8516: The Ulnar Nerve
Rating Major Minor
38 U.S.C. § 4.21. Section 4.21 is inapposite. It does not
provide for treating non-service-connected nerve injuries
as though they were service-connected.
Case: 21-1367 Document: 44 Page: 9 Filed: 03/30/2022
10 SLAUGHTER v. MCDONOUGH
Paralysis of:
Complete; the “griffin claw” deformity,
due to flexor contraction
of ring and little fingers, atrophy
very marked in dorsal interspace
and thenar and hypothenar eminences;
loss of extension of ring
and little fingers cannot spread the
fingers (or reverse), cannot adduct
the thumb; flexion of wrist weakened
60 50
Incomplete:
Severe 40 30
Moderate 30 20
Mild 10 10
As this diagnostic code and others like it make clear,
the regulation at issue requires reference to the injury that
causes a veteran’s disability, where such reference is possible.
This conclusion is confirmed by 38 C.F.R. § 4.120,
which states, inter alia: “In rating peripheral nerve injuries
and their residuals, attention should be given to the site
and character of the injury, the relative impairment in motor
function, trophic changes, or sensory disturbances.” 38
C.F.R. § 4.120 (emphasis added).
Because we find that the phrase “combined nerve injuries”
does not include a service-connected injury to one
nerve and a non-service-connected injury to another, we
need not reach Mr. Slaughter’s arguments about what it
means to “consider radicular group ratings” as required by
the inapplicable note in § 4.124a. The existence of a “combined
nerve injur[y]” is a condition precedent to such
Case: 21-1367 Document: 44 Page: 10 Filed: 03/30/2022
SLAUGHTER v. MCDONOUGH 11
consideration—where no “combined nerve injur[y]” exists,
as here, the Board need not consider a radicular group rating.
II. CONCLUSION
We have considered Mr. Slaughter’s other arguments
on appeal and find them unavailing. For the foregoing reasons,
we affirm.
AFFIRMED
COSTS
No costs.
Case: 21-1367 Document: 44 Page: 11 Filed: 03/30/2022

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