Veteranclaims’s Blog

April 6, 2015

Salberg v. McDonald, No. 2014-7049(Decided: April 6, 2015); 38 C.F.R. § 3.312(c)(1); Contributory Cause[s] of Death

Excerpt from decision below:

“This appeal from the judgment of the United States Court of Appeals for Veterans Claims (the “Veterans Court”) concerns whether posttraumatic stress disorder (“PTSD”) and malaria constitute “contributory cause[s] of
[the veteran’s] death” within the meaning of 38 C.F.R. § 3.312(c)(1). For the reasons set forth below, we dismiss the appeal in part and vacate the Veterans Court’s conclusion that the veteran’s PTSD was not a “contributory cause of death.” We remand to give the Veterans Court an opportunity to construe an arguably ambiguous portion of § 3.312(c)(1) in the first instance.”

=====================

Section 3.312(c)(1) defines “contributory cause of death”
as follows:
SALBERG v. MCDONALD 3
Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.

=====================

“We vacate the Veterans Court’s judgment to the extent that the judgment concluded that PTSD was not a “contributory cause of death,” and we remand to the Veterans Court for further proceedings consistent with this opinion.

=====================

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
______________________
ROSE SALBERG,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7049
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2483, Judge Margaret C. Bartley.
______________________
Decided: April 6, 2015
______________________
JANET PIOLI, Brinks Gilson & Lione, Chicago, IL,
argued for claimant-appellant. Also represented by LAURA
A. LYDIGSEN, DAVID HANNA.
JOSHUA SCHNELL, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by SONIA MARIE ORFIELD, JOYCE R. BRANDA,
ROBERT E. KIRSCHMAN, JR., SCOTT D. AUSTIN; Y. KEN LEE,
SALBERG 2 v. MCDONALD
CHRISTINA LYNN GREGG, Office of General Counsel, United
States Department of Veterans Affairs, Washington,
DC.
______________________
Before PROST, Chief Judge, TARANTO, Circuit Judge, and
FOGEL, District Judge.*
FOGEL, District Judge.
This appeal from the judgment of the United States
Court of Appeals for Veterans Claims (the “Veterans
Court”) concerns whether posttraumatic stress disorder
(“PTSD”) and malaria constitute “contributory cause[s] of
[the veteran’s] death” within the meaning of 38 C.F.R.
§ 3.312(c)(1). For the reasons set forth below, we dismiss
the appeal in part and vacate the Veterans Court’s conclusion
that the veteran’s PTSD was not a “contributory
cause of death.” We remand to give the Veterans Court an
opportunity to construe an arguably ambiguous portion of
§ 3.312(c)(1) in the first instance.
I
According to § 3.312(a):
The death of a veteran will be considered as having
been due to a service-connected disability
when the evidence establishes that such disability
was either the principal or a contributory cause of
death.
Section 3.312(c)(1) defines “contributory cause of death”
as follows:
* Honorable Jeremy Fogel, District Judge, United
States District Court for the Northern District of California,
and Director of the Federal Judicial Center, sitting by
designation.
SALBERG v. MCDONALD 3
Contributory cause of death is inherently one not
related to the principal cause. In determining
whether the service-connected disability contributed
to death, it must be shown that it contributed
substantially or materially; that it combined to
cause death; that it aided or lent assistance to the
production of death. It is not sufficient to show
that it casually shared in producing death, but rather
it must be shown that there was a causal
connection.
Appellant Rose Salberg is the surviving spouse of
Lawrence Salberg, a veteran who died in 2008 at the age
of 78. Mr. Salberg’s death certificate recites “respiratory
failure” as the immediate cause of death and “fungemia
sepsis,” “ARDS,”1 and “hypotension” as the conditions
“leading to the cause.” An examiner for the Department of
Veterans Affairs concluded separately that “[e]nd-stage
renal disease” and “[v]asculitis (p-ANCA positive),” an
autoimmune disease, were the “[m]edical disorders contributing
to primary cause of death.”
It is undisputed that Mr. Salberg’s service-connected
disabilities were not the “principal cause of death.” Mrs.
Salberg instead sought service connection under two
separate theories of “contributory cause of death.”
First, she pointed to an incident that occurred while
Mr. Salberg was serving as a guard in a psychiatric ward
of a military hospital. On March 15, 1949, one of the
patients “engaged him in a bear hug and bit his left ear
lobe.” The attack had a deep impact on Mr. Salberg; he
was eventually diagnosed with PTSD and was awarded
service connection for the condition. His original disability
rating in 2001 was 10%, but, as the PTSD worsened over
1 ARDS stands for “acute respiratory distress syndrome.”
SALBERG 4 v. MCDONALD
time, the rating was increased to 30% in 2003 and ultimately
to 70% in 2004. In Mrs. Salberg’s view, the vasculitis
which ultimately led to Mr. Salberg’s death in 2008
was at least exacerbated by the PTSD he suffered as a
result of the attack.
Second, Mrs. Salberg alleged that Mr. Salberg contracted
malaria while in service. In her view, this fact
constitutes a separate ground for the award of service
connection because of the “connection between malaria
and vasculitis.”
Mrs. Salberg was unable to able to convince the Board
of Veterans’ Appeals (the “Board”) that either PTSD or
malaria was a “contributory cause” of her husband’s
death. In re Salberg, No. 10-10 077 (Bd. Vet. App. June
21, 2012) [hereinafter Board Op.]. Her claims fared no
better in the Veterans Court. Salberg v. Shinseki, No. 12-
2483 (Vet. App. Nov. 8, 2013) [hereinafter Vet. Ct. Op.].
She timely appeals.
II
At the outset, the Secretary appropriately challenges
our jurisdiction to consider the portion of the appeal
concerning malaria as a “contributory cause of death.”
The Veterans Court concluded that Mr. Salberg never
contracted malaria while in service:
Despite her allegation that the Board’s findings
[that Mr. Salberg did not contract malaria] are erroneous,
Mrs. Salberg has not pointed to a medical
record or other piece of evidence, either inservice
or postservice, or before or after the veteran’s
death, that mentions, opines, or recounts that
he ever contracted malaria or that links any of his
medical conditions to malaria, and the Court’s review
of the record has found none.
Vet. Ct. Op. at 6.
SALBERG v. MCDONALD 5
As we have stated:
“Our jurisdiction to review the decisions of the
[Veterans Court] is limited by statute.” While this
court is authorized to “decide all relevant questions
of law, including interpreting constitutional
and statutory provisions,” we cannot adjudicate
“(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,” unless a constitutional
issue is presented.
Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir.
2011) (citation omitted).
That Mr. Salberg in fact had service-connected malaria
is a necessary precondition to the argument that service-
connected malaria was a “contributory cause” of his
death. We have no jurisdiction to review the factual
finding that he did not contract malaria in service, and,
accordingly, lack jurisdiction to reach the legal question of
whether malaria constituted a “contributory cause of
death.”
III
The remaining dispute about Mr. Salberg’s PTSD as a
“contributory cause” of his death centers on the proper
construction of § 3.312(c)(1):
In determining whether the service-connected
disability contributed to death, it must be shown
that it contributed substantially or materially;
that it combined to cause death; that it aided or
lent assistance to the production of death.
Mrs. Salberg takes the position that the semicolons in the
regulation should be understood in the disjunctive (in
other words, as the equivalent of “or”). The Secretary
asserts that the “semi-colons . . . delineate each clause, all
of which have related meanings, each serving to further
SALBERG 6 v. MCDONALD
clarify the meaning of contributory death.” We understand
the Secretary’s position to be the following: a “contributory
cause of death” is a “service-connected disability
. . . that . . . contributed substantially or materially” to
death, where the regulation’s “combined to cause death”
and “aided or lent assistance to death” clauses spell out
necessary, but not each sufficient, conditions for “substantial[]
and material[] contribution. This is the conjunctive
interpretation.
Mrs. Salberg faults the Veterans Court for defining
“contributory cause of death” as only those disabilities
which “contributed substantially or materially” to the
veteran’s death. She points to certain statements by the
Board that allegedly show that the Board considered Mr.
Salberg’s PTSD only under the “contributed substantially
or materially” prong of the regulation. See, e.g., Board Op.
at 5 (“For a service-connected disability to be a ‘contributory
cause’ of death, it must contribute substantially or
materially.”).2 In her briefing before this court, she appears
to argue that the Veterans Court, by quoting and
paraphrasing the factual findings of the Board, endorsed
the Board’s restrictive legal interpretation. In paraphrasing
the regulation, however, the Veterans Court used the
term “or”:
[A service-connected disability] is the primary
cause if it was “the immediate or underlying cause
of death or was etiologically related” to the death;
it is a contributory cause if it “contributed substan-
2 Mrs. Salberg never argued in the Veterans Court
that the Board failed to consider separately disabilities
that “combined to cause death” or “aided or lent assistance
to the production of death” as “contributory cause[s]
of death.” However, Mrs. Salberg appeared pro se in the
Veterans Court, and the Secretary states explicitly that
he does not argue waiver.
SALBERG v. MCDONALD 7
tially or materially” to the cause of death, “combined
to cause death,” or “aided or lent assistance
to the production of death.” [38 C.F.R.] § 3.312(b),
(c)(1).
Vet. Ct. Op. at 5 (emphasis added).
The Board also made at least one finding under which
Mrs. Salberg might lose for failure to satisfy the causation
requirement of the last sentence of § 3.312(c)(1):
It is not sufficient to show that [the disability alleged
to be a contributory cause of death] casually
shared in producing death, but rather it must be
shown that there was a causal connection.
See, e.g., Board Op. at 16 (“The two VA medical opinions
. . . establish by a preponderance that it is less than likely
that PTSD caused, contributed to, or was causally related
to the Veteran’s death.”) (emphasis added). That finding
might alone defeat her claim without the need to construe
the particular sentence disputed in this court. But the
Veterans Court did not appear to base its decision on that
finding.
In any case, despite these statements by the Veterans
Court, the Secretary does not argue that the Veterans
Court considered whether disabilities which “combined to
cause death” or which “aided or lent assistance to the
production of death” could support an award even if they
did not “contribute[] substantially or materially” to death.
He urges instead that this case be remanded to the Veterans
Court so that it may construe the regulation in the
first instance because, in his view, the proper construction
of § 3.312(c)(1) has not been presented there.
IV
Under these rather unusual circumstances, but with
an eye to providing clarity in the construction of this
regulation, we grant the Secretary’s request to remand for
SALBERG 8 v. MCDONALD
the Veterans Court to consider whether PTSD was a
“contributory cause” of Mr. Salberg’s death. We take no
position on the proper construction of § 3.312(c)(1) beyond
the following guidance.
Preliminarily, we note that the Veterans Court could
decide that no construction is necessary. As noted above,
the Board appears to have found that there was no causal
link at all between Mr. Salberg’s PTSD and his death. If
Mrs. Salberg fails to overcome these apparent findings,
the Veterans Court may conclude that there is simply no
“causal connection” within the meaning of § 3.312(c)(1)
and dispose of the case accordingly.
With punctuation, as with other aspects of language,
context matters. The Supreme Court has indicated that
punctuation alone is not “a reliable guide for discovery of
a statute’s meaning.” U.S. Nat. Bank of Oregon v. Indep.
Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993). For
example, in Elgin Nursing & Rehabilitation Center v. U.S.
Department of Health and Human Services, the Fifth
Circuit took a context-based approach to the use of semicolons.
718 F.3d 488 (5th Cir. 2013). The semicolons of
38 C.F.R. § 3.312(c)(1) that delineate conditions which
“contributed substantially or materially” to death, which
“combined to cause death,” and which “aided or lent
assistance to the production of death” indicate the close
relationship of the three types of conditions. The Veterans
Court therefore should look to the medical realities and
take care to construe the regulation in a way that “all
clauses [are] given effect.” Id. at 495.
Here, if all conditions that “contributed substantially
or materially” to death necessarily have “combined to
cause death” or “aided or lent assistance to the production
of death,” then construing the semicolons in the regulation
as equivalent to “or” would read “contributed substantially
or materially” out of the regulation. In that
case, the semicolons should be read in the conjunctive,
SALBERG v. MCDONALD 9
and “combined to cause” and “aided or lent assistance to
the production of” should be understood as elaborations
that stake out the minimum bounds of “contributed
substantially or materially.” But we leave it to the Veterans
Court to consider if this objection to a disjunctive
interpretation is sound.
The Veterans Court also should be mindful of the
teaching of the Supreme Court that a construction “must
account for a statute’s full text, language as well as punctuation,
structure, and subject matter.” U.S. Nat’l Bank of
Or., 508 U.S. at 455. The other portions of § 3.312(c)
include requirements that appear to speak to the materiality
of a condition that is the “contributory cause of
death.” See, e.g., § 3.312(c)(4) (“there is for consideration
whether there may be a reasonable basis for holding that
a service-connected condition was of such severity as to
have a material influence in accelerating death”) (emphasis
added). These clauses may indicate that a finding of
“substantial[] or material[]” contribution to death is
necessary for a condition to be considered a “contributory
cause of death” and may direct a conjunctive construction
of the semicolons. The Veterans Court also may consider
the regulatory history, the use of comparable language or
punctuation in any other regulations, and anything else
bearing on the permissibility of the “and” construction
urged by the Secretary.
Should the Veterans Court find it necessary to construe
the regulation, it should provide a detailed explanation
of its reasoning. As Mrs. Salberg has pointed out, for
more than a decade the Veterans Court consistently has
recited the phrases at issue here in the disjunctive. See,
e.g., Watson v. Brown, 4 Vet. App. 189, 192-93 (1993) (“A
contributory cause of death must be causally connected to
the death and must have ‘contributed substantially or
materially’ to death, ‘combined to cause death’, or ‘aided
or lent assistance to the production of death.’ 38 C.F.R.
§ 3.312(c)(1) (1992).”) It has relied on that formulation in
SALBERG 10 v. MCDONALD
at least two unpublished opinions. Roberson v. Shinseki,
2011 WL 1042179, at *2–3 (Vet. App. Mar. 22, 2011);
Flaming v. Principi, 2003 WL 21251694, at *1 (Vet. App.
May 6, 2003). But we have not been able to find an opinion
of the Veterans Court that squarely addresses the
interpretive issues. It may well be, as the Secretary
argues here, that the Veterans Court’s use of “or” in its
opinions is “casual[].” The importance of § 3.312(c)(1) is
clear from the large number of cases in the Veterans
Court that implicate it. It would assist our review of such
cases to have the benefit of the Veterans Court’s considered
reasoning, informed by its many years of experience
with the full range of relevant regulations and with their
medical applications.
Finally, we note that, where a regulation is ambiguous,
the agency is entitled to deference in its interpretation
unless that interpretation is “plainly erroneous or
inconsistent with the regulation.” Auer v. Robbins, 519
U.S. 452, 461 (1997) (internal quotation marks omitted).
V
Accordingly, we dismiss the portion of the appeal concerning
malaria as a “contributory cause” of Mr. Salberg’s
death. We vacate the Veterans Court’s judgment to the
extent that the judgment concluded that PTSD was not a
“contributory cause of death,” and we remand to the
Veterans Court for further proceedings consistent with
this opinion.
DISMISSED IN PART, VACATED IN PART,
AND REMANDED
COSTS
No costs.

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