Veteranclaims’s Blog

May 19, 2016

Hudgens v. McDonald, No. 2015-7030(Decided: May 18, 2016); Compensation for prosthetic; DC 5055; Rating by Analogy; Appeal of Remand;

Excerpt from decision below:

“The issue before us on appeal is whether Mr. Hudgens is entitled to compensation for his prosthetic knee replacement under DC 5055. For the reasons below, we reverse and remand for further proceedings consistent with this opinion.”

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“Instead, Mr. Hudgens’s case falls within the jurisdictional exception for separate remanded claims, as explained in Joyce.”

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“While we are not prepared to say that DC 5055 unambiguously includes partial knee replacements, we agree with Mr. Hudgens that (1) DC 5055 does not unambiguously exclude such replacements; (2) the VA’s interpretation of DC 5055 is not entitled to deference under Auer; and (3) Gardner compels the conclusion that the Veterans Court erred in its judgment that DC 5055 is limited to instances of full knee replacement. With respect to the first point, it is undisputed that the regulation does not expressly state that the only prosthetic implants covered are those for full knee replacements.
While the Veterans Court in this case cited a dictionary for the proposition that the “knee joint” is generally considered to be made up of a number of component parts, there is nothing in the regulation that expressly states that all of those component parts must be replaced by a
prosthesis before DC 5055 applies.”

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“Accordingly, we hold that Mr. Hudgens may be compensated under DC 5055 based on his partial knee replacement.”

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United States Court of Appeals for the Federal Circuit
______________________
MICHAEL A. HUDGENS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7030
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-0370, Chief Judge Bruce E.
Kasold, Judge Alan G. Lance, Sr., Judge Robert N. Davis.
______________________
Decided: May 18, 2016
______________________
THOMAS EDWARD ANDREWS III, Andrews Law Office
LLC, Columbia, SC, argued for claimant-appellant.
IGOR HELMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR., COURTNEY D. ENLOW; DAVID J.
BARRANS, AMANDA BLACKMON, Office of General Counsel,
United States Department of Veterans Affairs, Washington,
DC.
HUDGENS 2 v. MCDONALD
______________________
Before O’MALLEY, PLAGER, and WALLACH, Circuit Judges.
O’MALLEY, Circuit Judge.
Mr. Hudgens appeals from the judgment of the Court of Appeals for Veterans Claims (“Veterans Court”). That court (1) held that Mr. Hudgens is not entitled to compensation for his prosthetic knee replacement under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (“DC 5055”);
(2) vacated and remanded the decision of the Board of Veterans’ Appeals (“Board”) denying Mr. Hudgens a disability rating of greater than 10 percent for degenerative joint disease in the right knee; (3) vacated and remanded the decision of the Board denying entitlement to a compensable disability rating for instability in the right
knee for a prior time period; and (4) remanded to the Board for a determination of whether Mr. Hudgens’s partial knee replacement can be rated by analogy to DC 5055. Hudgens v. Gibson, 26 Vet. App. 558 (2014). The issue before us on appeal is whether Mr. Hudgens is entitled to compensation for his prosthetic knee replacement under DC 5055. For the reasons below, we reverse
and remand for further proceedings consistent with this opinion.
BACKGROUND
Mr. Hudgens injured his right knee while serving on
active duty in the U.S. Army. Joint Appendix (“JA”) 2. In
2003, Mr. Hudgens had partial knee replacement surgery
on his right knee. Id. On August 16, 2006, Mr. Hudgens
sought benefits with the Department of Veterans Affairs
(“VA” or “Secretary”) for his service-connected knee injury.
JA 105.
A. Regional Office Decisions
Mr. Hudgens filed claims for (1) degenerative joint
disease in the right knee; (2) instability in the right knee;
HUDGENS v. MCDONALD 3
and later (3) an evaluation for his prosthetic knee replacement.
On December 29, 2006, the VA Regional
Office (“RO”) granted Mr. Hudgens’s claim for benefits
based on his degenerative joint disease of the right knee
and assigned a 10 percent evaluation. JA 105. On September
28, 2007, Mr. Hudgens filed a claim for an increased
evaluation for instability in his right knee. JA
260. On November 21, 2007, the RO assigned an additional
10 percent evaluation for Mr. Hudgens’s instability
in his right knee. JA 260, 263.
On February 3, 2009, after receiving the results of Mr.
Hudgens’s then-recent VA orthopedic exam, the RO
reduced the rating for Mr. Hudgens’s right knee instability
from 10 to 0 percent. JA 267. The RO still continued
the previously assigned 10 percent evaluation for degenerative
joint disease. JA 266. After filing a second claim
for increased evaluation of his knee instability and having
it denied by the RO on April 22, 2009, Mr. Hudgens filed a
Notice of Disagreement. JA 275. Mr. Hudgens underwent
another VA orthopedic exam, but the RO again
found that the 0 percent evaluation for right knee instability
was warranted. JA 288.
On March 16, 2010, Mr. Hudgens filed a second Notice
of Disagreement, this time arguing that he should be
awarded 100 percent evaluation for his prosthetic knee
replacement under DC 5055. Under the heading “Prosthetic
Implants” DC 5055 states:
5055 Knee replacement (prosthesis).
Prosthetic replacement of knee joint:
For 1 year following implantation of prosthesis………………………………………………
100
With chronic residuals consisting of severe
painful motion or weakness in the affected
extremity…………………………………………60
HUDGENS 4 v. MCDONALD
With intermediate degrees of residual
weakness, pain or limitation of motion
rate by analogy to diagnostic codes 5256,
5261, or 5262.
Minimum rating…………….……………..30
On March 31, 2010, the RO denied the increase in evaluation,
finding that DC 5055 applied only to total knee
replacements, not partial knee replacements. JA 305.

B. Board Decision
Mr. Hudgens appealed the RO’s rating decisions to
the Board. JA 70. On December 26, 2012, the Board
denied Mr. Hudgens: (1) a disability rating of greater than 10 percent for degenerative joint disease of the right knee;
(2) a disability rating of greater than 10 percent for instability in the right knee; and (3) entitlement to a compensable
disability rating for instability in the right knee for
the time period between the two VA orthopedic exams.
JA 79. The Board additionally concluded that DC 5055 does not apply to Mr. Hudgens because he “underwent only a ‘partial’ knee replacement, and not the total prosthetic replacement of the knee joint contemplated [by DC 5055].” JA 77. The Board did not address whether DC 5055 can be applied to Mr. Hudgens by analogy. Id.

C. Veterans Court Decision
On January 30, 2013, Mr. Hudgens appealed the
Board’s decision to the Veterans Court. JA 16. Mr.
Hudgens argued that the Board erred in finding that DC
5055 does not apply to partial knee replacements. Hudgens,
26 Vet. App. at 560. The Veterans Court disagreed.
Id. at 565. In rendering its decision, the Veterans Court
considered the plain meaning of the term “knee joint” in
DC 5055. Id. at 561. After looking to a medical dictionary
for guidance, the Veterans Court concluded that DC
5055 is unambiguous and applies to the prosthetic replacement
of the whole knee joint, which must include all
HUDGENS v. MCDONALD 5

three components of the knee. Id. The Veterans Court
also concluded that such a definition was “consistent with
the overall statutory scheme.” Id. In particular, the
Veterans Court looked to a related regulation, DC 5054,
which addresses prosthetic hip replacements. Hudgens,
26 Vet. App. at 561. The Veterans Court reasoned that,
since DC 5054 explicitly includes language relating to a
partial hip replacement, the VA Secretary “knew how to
provide benefits for a prosthesis replacing part of a joint,
as opposed to the entire joint, when he intended to.” Id.
Finally, because the Veterans Court found DC 5055 to be unambiguous, it was not swayed by the fact that the majority of prior Board decisions were inconsistent with the Veterans Court’s current interpretation of this regulation. Id. at 562–63.
After disposing of this interpretive issue, the Veterans
Court remanded several of Mr. Hudgens’s other claims to the Board. Id. at 565. The Veterans Court asked the Board to address whether Mr. Hudgens’s partial knee replacement can be rated by analogy to DC 5055.1 Id. at 564. The Veterans Court also vacated the Board’s decision
on the issues of right knee instability and degenerative
joint disease, remanding these matters to the Board for further adjudication. Hudgens, 26 Vet. App. at 565.
Specifically, the Veterans Court found that the Board
“failed to address the evidence of right knee dislocation,
swelling, and pain or explain why they are not evidence of
‘cartilage, semilunar, removal of, symptomatic.’” Id. at
564–65 (citing DC 5259).
Chief Judge Kasold dissented with respect to the majority’s
holding that DC 5055 does not apply to partial
1 38 C.F.R. § 4.20 allows the VA to evaluate specific
disorders not listed in the regulations under codes for
similar disorders. Hudgens, 26 Vet. App. at 563.
HUDGENS 6 v. MCDONALD

knee replacements, finding the regulation to be ambiguous. Id. (Kasold, C.J., dissenting). In particular, Chief Judge Kasold pointed out that the majority of Board decisions to address DC 5055 had found that the regulation does apply to partial knee replacements. Id. In addition, Chief Judge Kasold argued that, in view of the
inconsistent interpretation of the regulation by the agency, the Secretary’s current interpretation does not warrant deference. Id. at 567. Instead, Chief Judge Kasold insisted that the ambiguity “be interpreted in the light most favorable to the veteran.” Id. (citing, inter alia, Brown v. Gardner, 513 U.S. 115, 118 (1994)).
On July 17, 2014, Mr. Hudgens filed a motion for reconsideration regarding the Veterans Court’s interpretation of DC 5055. Hudgens v. McDonald, No. 13-0370,
2014 U.S. App. Vet. Claims LEXIS 1769, at *1 (Vet. App. Oct. 20, 2014). On October 20, 2014, the Veterans Court
denied the motion, with Chief Judge Kasold again dissenting.
Id. at *3. Mr. Hudgens timely appealed to this
court.
D. New Agency Interpretation of DC 5055
On July 16, 2015, twelve days before the Secretary’s
final brief was due with this court, the VA published a final informal rule relevant to this litigation. Appellant Reply Br. at 1 (citing Agency Interpretation of Prosthetic Replacement of Joint, 80 Fed. Reg. 42,040 (Dep’t of Veterans
Affairs July 16, 2015) [hereinafter Agency Interpretation]).
The regulation explains that “[i]n view of the . . .
VA’s longstanding interpretation, VA is amending its
regulations to clarify that the language of § 4.71a, Prosthetic
Implants, which refers to replacement of the named
joint, refers to replacement of the joint as a whole, except
where it is otherwise stated under DC 5054.” Agency
Interpretation at 42,040–41.
HUDGENS v. MCDONALD 7

STANDARD OF REVIEW
“We have the authority to decide all relevant questions
of law and can set aside a regulation or an interpretation
of a regulation relied upon by the Court of Appeals
for Veterans Claims when we find it to be arbitrary,
capricious, and an abuse of discretion, or otherwise not in
accordance with law; contrary to constitutional right,
power, privilege, or immunity; in excess of statutory
jurisdiction, authority, or limitations, or in violation of a
statutory right; or without observance of procedure required
by law.” Bustos v. West, 179 F.3d 1378, 1380 (Fed.
Cir. 1999); see 38 U.S.C. § 7292(d)(1). “We review statutory
and regulatory interpretations of the Veterans Court
de novo.” Johnson v. McDonald, 762 F.3d 1362, 1364
(Fed. Cir. 2014); accord DeLaRosa v. Peake, 515 F.3d
1319, 1321 (Fed. Cir. 2008).

DISCUSSION
Mr. Hudgens asks that we reverse the Veterans
Court’s judgment that an evaluation for DC 5055 is
limited to instances in which a claimant undergoes a full knee replacement. The VA argues that we do not have jurisdiction to hear Mr. Hudgens’s appeal, and that, if we do, the Veterans Court’s judgment should be affirmed.
We first address the parties’ jurisdictional dispute before turning to the merits of Mr. Hudgens’s appeal.
A. Jurisdiction
Mr. Hudgens argues that, although the Veterans
Court’s remand order means that its decision is not final
as to all issues presented, this court has jurisdiction
because this appeal satisfies the Williams standard for
finality on discrete and separable claims. See Williams v.
Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002).
This court’s review of Veterans Court decisions is governed
by 38 U.S.C. § 7292. Although the statute does not
explicitly impose a finality requirement, this court has
HUDGENS 8 v. MCDONALD
generally declined on prudential grounds to review decisions
of the Veterans Court where any issues have yet to
be decided. Joyce v. Nicholson, 443 F.3d 845, 849 (Fed.
Cir. 2006). Williams established an exception to this rule:
[W]e will depart from the strict rule of finality
when the Court of Appeals for Veterans Claims
has remanded for further proceedings only if three
conditions are satisfied: (1) there must have been
a clear and final decision of a legal issue that (a) is
separate from the remand proceedings, (b) will directly
govern the remand proceedings or, (c) if reversed
by this court, would render the remand
proceedings unnecessary; (2) the resolution of the
legal issues must adversely affect the party seeking
review; and, (3) there must be a substantial
risk that the decision would not survive a remand,
i.e., that the remand proceeding may moot the issue.
275 F.3d at 1364 (footnotes omitted).
There is no question that Mr. Hudgens meets factors
(1)(a) and (2) of the Williams test. The Veterans Court’s
interpretation of DC 5055 was a clear and final decision
that is separable from the remanded issues, which relate
to separate claims for relief. And, Mr. Hudgens will be
harmed because the Board on remand will not address his
rating under DC 5055, and “rather than receiving the
automatic minimum rating under DC 5055 for having a
knee replacement, he [will have] to seek a rating under
Section 4.20 [rating by analogy] and meet the requirements called for by it.” Appellant Reply Br. at 13. The parties dispute, however, whether Mr. Hudgens meets the third Williams factor.
Mr. Hudgens argues that his case meets the third factor of Williams, asserting that “the applicability of Diagnostic Code 5055 will not be addressed in the remand,”
and there is a substantial risk that the resolution of the
HUDGENS v. MCDONALD 9

remaining issues will moot the currently-appealed issue.
Appellant Br. at 10. The VA disagrees, contending that this case is akin to Myore, Donnellan, and Joyce, where this court held that it lacked jurisdiction over the appealed
remand orders of the Veterans Court. See Myore v.
Principi, 323 F.3d 1347 (Fed. Cir. 2003); Donnellan v.
Shinseki, 676 F.3d 1089 (Fed. Cir. 2012); Joyce v. Nicholson,
443 F.3d 845, 850 (Fed. Cir. 2006). We briefly review
these cases.
In Myore, a widow of a deceased veteran claimed veterans
benefits under 38 U.S.C. § 1310(a), which provides
dependency benefits to spouses of deceased veterans. 323
F.3d at 1348. The Board found that Mrs. Myore was not
entitled to benefits because of her husband’s willful
misconduct in causing his own death. Id. at 1349. On
appeal, she urged the Veterans Court to reverse the
Board’s decision, proposing a different interpretation of 38
U.S.C. § 1310(a)—that the statute does not bar recovery
due to willful misconduct. Id. at 1349–50. The Veterans
Court rejected Mrs. Myore’s interpretation of the statute
but remanded the case because the Board needed to
decide if it had properly assisted the claimant in defeating
the finding of willful misconduct. Id. Mrs. Myore appealed
to this court, contending that she met the Williams
exception because the Veterans Court misinterpreted the
statute at issue and, if that finding were reversed, Mrs.
Myore would be entitled to benefits. Myore, 323 F.3d at
1352. This court rejected her argument, holding that
“[t]he mere fact that the Veterans Court as part of a
remand decision may have made an error of law that will
govern the remand proceeding . . . does not render that
decision final.” Id. Although the statutory interpretation
issue would not be addressed again on remand in Myore,
we did not find that the issue “evade[d] further review”
because “[i]f Myore loses before the Board [on remand],
and [the statute] is applied against her, and the Board’s
decision is affirmed by the Veterans Court, then Myore
HUDGENS 10 v. MCDONALD

may seek review of that court’s interpretation of [the
statute] on what will then be a final judgment.” Id.
Likewise, in Donnellan, the Veterans Court remanded
the case to the Board after finding that Mr. Donnellan
was not entitled to a statutory presumption of aggravation.
676 F.3d at 1091. Mr. Donnellan appealed to this
court, arguing that this remand order was final because
“he may be able to meet the burden imposed by the Veterans
Court and prevail on his claim; if he does, the legal
issue [of the statutory presumption] he seeks to present to
this court will not reach this court in his case.” Id. This
court rejected Mr. Donellan’s argument, holding that
“[t]he risk that a decided issue will not survive a remand
does not include the possibility that the appellant will
prevail on remand and therefore will not need to take
another appeal.” Id. at 1092. In particular, we noted in
Donnellan that the “test for whether [an] issue may evade
review is whether, if the claimant loses on remand, the
claimant will not be able to raise the issue on appeal from
an adverse final judgment.” Id. (citing Myore, 323 F.3d at 1352).
Finally, in Joyce, we clarified that there is a distinction
between veterans cases in which a single claim is
being adjudicated and cases in which multiple claims are being adjudicated. 443 F.3d at 850. In cases involving a
single veteran’s claim, if a claimant loses on remand and
the Veterans Court upholds the Board, the claimant will
be able to “raise any objections to the judgment that was
entered [on appeal], whether the errors arose from the
original Court of Appeals for Veterans Claims decision or
the second and final decision.” Id. (emphases added). On
the other hand, if a veteran’s case involves separate
claims for relief, “under some circumstances review is
available for a claim for which final judgment has been
entered even if other, separate claims have been remanded.”
Id. at 850 (discussing Elkins v. Gober, 229 F.3d 1369,
1376 (Fed. Cir. 2000)). In particular, in Elkins, we held
HUDGENS v. MCDONALD 11
that ‘‘[b]ecause . . . each ‘particular claim for benefits’ may
be treated as distinct for jurisdictional purposes, a veteran’s
claims may be treated as separable on appeal.’’
Elkins, 229 F.3d at 1376 (quoting Maggitt v. West, 202
F.3d 1370, 1376 (Fed. Cir. 2000)). We cautioned, however,
that “we will not review final judgments on separable
claims where other claims are still pending if our review
would ‘disrupt the orderly process of adjudication’—for
example, where the appealed claim is ‘inextricably intertwined’
with the remanded claim.” Joyce, 443 F.3d at 850.
Here, we conclude that Mr. Hudgens’s case is distinguishable
from those at issue in Myore and Donnellan,
each of which involved appeals from remand orders in
cases involving a single claim for veterans’ benefits.
Instead, Mr. Hudgens’s case falls within the jurisdictional exception for separate remanded claims, as explained in Joyce. Here, the claims remanded by the Veterans Court
are separate claims for right knee disability distinct from
the non-remanded claim of whether Mr. Hudgens is
entitled to an evaluation for prosthetic knee replacement
under DC 5055. Mr. Hudgens’s path to achieving a rating under DC 5055 is thus a separate claim that cannot be reviewed by the Board on remand. Nor does Mr. Hudgens’s appeal fall within the category of cases in which a non-remanded claim is “inextricably intertwined” with a remanded claim such that “both claim compensation for
the same disability.” Joyce, 443 F.3d at 850. As Mr.
Hudgens correctly notes, his “claim for a rating under DC 5055 was not [remanded],” and the Veterans Court’s remand for a determination of whether Mr. Hudgens meets that regulation by analogy “is not the same” as remanding to determine whether he meets the rating
directly under that specific regulation. Appellant Reply
Br. at 12. Accordingly, we hold that we have jurisdiction
to review whether Mr. Hudgens is entitled to an evaluation under DC 5055.
HUDGENS 12 v. MCDONALD

B. Whether DC 5055 Covers
Partial Knee Replacement
We now address whether the Veterans Court erred in
holding that DC 5055 is limited to instances where a
claimant has undergone a full knee replacement. The VA
argues that the Veterans Court did not err in concluding
that DC 5055 unambiguously applies only to full knee
replacements, and if ambiguous, the Secretary’s interpretation
of DC 5055 is entitled to deference under Auer v.
Robbins, 519 U.S. 452 (1997). Appellee Br. at 40. Mr.
Hudgens argues that the Veterans Court’s interpretation
of DC 5055 must be reversed. He contends that the rule
unambiguously does apply to all knee replacements, even
partial ones, and that, under Gardner any “interpretive
doubt is to be resolved in the veteran’s favor.” Appellant
Br. at 45 (citing Gardner, 513 U.S. at 118). Mr. Hudgens
argues that Auer deference is not warranted in this case
and, thus, cannot displace the rule of Gardner.
While we are not prepared to say that DC 5055 unambiguously includes partial knee replacements, we agree with Mr. Hudgens that (1) DC 5055 does not unambiguously exclude such replacements; (2) the VA’s interpretation of DC 5055 is not entitled to deference under Auer; and (3) Gardner compels the conclusion that the Veterans Court erred in its judgment that DC 5055 is limited to instances of full knee replacement. With respect
to the first point, it is undisputed that the regulation
does not expressly state that the only prosthetic
implants covered are those for full knee replacements.
While the Veterans Court in this case cited a dictionary for the proposition that the “knee joint” is generally considered to be made up of a number of component parts, there is nothing in the regulation that expressly states that all of those component parts must be replaced by a
prosthesis before DC 5055 applies. And, the government
does not seem to dispute Mr. Hudgens’s contention that
even total knee replacements rarely replace or alter all of
HUDGENS v. MCDONALD 13

the components of the knee referenced in the Veterans
Court’s cited dictionary definition, such that the practical effect of reliance on that definition would exclude almost all knee replacements from the reach of DC 5055.2 It is notable, moreover, that 11 out of 14 of the Board’s decisions regarding DC 5055 found that DC 5055 is applicable to partial knee replacements, largely because it does not expressly exclude that form of prosthetic implant. Indeed
the Veterans Court itself previously has held that DC 5055 applies to partial knee replacements because it does not unambiguously state the contrary. Taylor v. Shinseki, No. 10-2588, 2012 U.S. App. Vet. Claims LEXIS 1219
(June 18, 2012) (nonprecedential). Where a majority of
the decisions to consider this question have found that
partial knee replacements are covered by DC 5055, it
seems a stretch to conclude that the ambiguities those
decision makers perceived can all be clarified by reference to one dictionary not cited in the regulation.3
Turning to the second question—whether Auer deference requires that we accept the Secretary’s current
2 We are similarly unpersuaded by the Veterans
Court’s reference to DC 5054. That the Secretary may
have used different language when referring to hip replacements
tells us very little in light of the anatomical
difference between hips and knees.
3 Mr. Hudgens asserts that the number of Board
decisions granting benefits under DC 5055 for partial
knee replacements is even higher—17 out of 21 according
to his count. The precise number is not important; what
is important is that it is undisputed that the vast majority
of Board decisions considering the question have concluded
either that DC 5055 unambiguously covers partial
knee replacements, or at least that it does not unambiguously
exclude them.
HUDGENS 14 v. MCDONALD

interpretation of DC 5055—we conclude it does not.
Under Auer, an agency’s interpretation of its own regulation
controls, unless the interpretation is “plainly erroneous
or inconsistent with the regulation.” Auer, 519 U.S.
at 461. Auer itself explained, however, that in order for this deference to apply, the interpretation must “reflect the agency’s fair and considered judgment on the matter in question.” Id. at 462. In Christopher v. Smithkline
Beecham, the Supreme Court further clarified that deference to an agency’s interpretation is “unwarranted” when “the agency’s interpretation conflicts with a prior [agency]
interpretation, or when it appears that the interpretation is nothing more than a ‘convenient litigating position,’ or a ‘post hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency action against attack.’” 132 S.
Ct. 2156, 2166 (2012) (citations omitted).
First, we reject the VA’s argument that “the Secretary has consistently interpreted DC 5055 as applying only to total knee replacements.” VA Br. at 36. In advancing
this argument, the VA cites to the Secretary’s arguments
in Taylor v. Shinseki and to the Agency Interpretation.
VA Br. at 37. The Secretary asks that we disregard the
numerous inconsistent rulings by the Board, stating that
“they are not synonymous with the VA’s position on an
issue” and that “if the Secretary disagrees with a board
decision, he is unable to assert this position because he
cannot appeal [it].” VA Br. at 31. These arguments are
unpersuasive. As Chief Judge Kasold explained, “[t]he
Board renders the final decision for the Secretary on all
questions in matters affecting the provision of benefits,
subject only to the statutes governing such benefits and
related judicial rulings, as well as VA regulations, instructions
of the Secretary, or VA General Counsel opinions.”
Hudgens, 26 Vet. App. at 566 (Kasold, C.J.,
dissenting) (citing 38 U.S.C. § 7104(c)).
If the Secretary is dissatisfied with the Board’s interpretation
of a regulation, the Secretary may instruct the
HUDGENS v. MCDONALD 15

Board regarding what the Secretary believes is the correct
interpretation, and such instructions are binding on the
Board. 38 U.S.C. § 7104(c) (“The Board shall be bound in
its decisions by the regulations of the Department, instructions
of the Secretary, and the precedent opinions of
the chief legal officer of the Department.”). As further
indication of the weight accorded to Board interpretations
of VA regulations, the Veterans Court has previously
looked to Board decisions in assessing the Secretary’s
interpretation. See, e.g., Fountain v. McDonald, 27 Vet.
App. 258, 270–71 (2015) (stating that prior Board interpretations
“provide[] information about the application of
the Secretary’s position” and accepting the Board’s interpretation
that tinnitus is an organic disease of the nervous
system). Despite the Veterans Court’s stated practice
of looking to prior Board decisions for guidance, here the
Veterans Court seems to have disregarded the fact that
the vast majority of Board decisions favor Mr. Hudgens’s
view of DC 5055. Because “the agency’s interpretation
conflicts with a prior [agency] interpretation,” it would be
inappropriate to afford Auer deference here. Christopher,
132 S. Ct. at 2166.
Second, we cannot ignore that, during the pendency of
this appeal, the agency found the need to clarify the
language of a regulation that it now argues has always
been clear on its face. In these circumstances, it is difficult
to avoid the conclusion that the regulation is sufficiently
ambiguous to lead to conflicting rulings and that
current agency interpretation of DC 5055 was conveniently
adopted to support the Veterans Court’s interpretation
in this case. Such “post hoc rationalization” does not
warrant deference under Auer, particularly when the
agency’s interpretation conflicts with the Veterans Court’s
prior decision in Taylor. See Christopher, 132 S. Ct. 2156
HUDGENS 16 v. MCDONALD

(finding “strong reasons for withholding the deference
that Auer generally requires”).4 We accordingly decline to
apply Auer deference to the VA’s interpretation of DC
5055 in this case.
Mr. Hudgens argues that we are bound to apply the
Gardner presumption to resolve any doubt in the interpretation
of DC 5055 in his favor. Appellant Br. at 45
(citing Gardner, 513 U.S. at 118). In these circumstances,
we agree.5 “[E]ven if the government’s asserted interpretation
of [DC 5055] is plausible, it would be appropriate
under Brown [v. Gardner] only if the statutory language
unambiguously [supported the government’s interpretation].”
Sursely v. Peake, 551 F.3d 1351, 1357 (Fed. Cir.
2009). Here, we find that Mr. Hudgens’s interpretation of
DC 5055 is permitted by the text of the regulation. DC
5055 is under the heading “Prosthetic Implants” and
4 We do not cite Taylor for its precedential effect—
since it has none. We cite it to emphasize how many
decision makers rejected the conclusion that DC 5055
unambiguously compels the reading given to it by the
Veterans Court majority in this case.
5 In many cases, the tension between Auer and
Gardner is difficult to resolve, since both seemingly direct
courts to resolve ambiguities in a VA regulation but
would, in many cases, counsel contrary outcomes. Where,
as here, however, there are firm grounds upon which to
conclude that Auer deference does not apply, there is no
need to resolve the tension between the two binding lines
of authority or to question whether one should be abandoned
in favor of the other. See Johnson v. McDonald,
762 F.3d 1362 (Fed. Cir. 2014) (O’Malley, J., concurring)
(citing Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct.
1326, 1339 (2013) (Roberts, C.J., concurring) (noting
“there is some interest in reconsidering [Auer]”)).
HUDGENS v. MCDONALD 17

merely lists a schedule of ratings for the condition “Knee
replacement (prosthesis),” without elaboration or limitation
of the condition. See 38 C.F.R. § 4.71a, Diagnostic
Code 5055. Mr. Hudgens’s interpretation of DC 5055 is
also consistent with the beneficence inherent in the
veterans’ benefits scheme and with the majority of Board
decisions that have interpreted this regulation. Accordingly, we hold that Mr. Hudgens may be compensated under DC 5055 based on his partial knee replacement.
We therefore reverse the judgment of the Veterans
Court holding that Mr. Hudgens is not entitled to an
evaluation for his prosthetic knee replacement under DC
5055. In light of our decision, it is unnecessary for the
Board to determine whether Mr. Hudgens’s partial knee
replacement can be rated by analogy to DC 5055. Our
decision today leaves intact the judgment of the Veterans
Court (1) vacating and remanding the Board’s decision
denying Mr. Hudgens a disability rating of greater than
10 percent for degenerative joint disease in the right knee;
and (2) vacating and remanding the decision of the Board
denying entitlement to a compensable disability rating for
instability in the right knee for a prior time period.

CONCLUSION
For the above reasons, we reverse the judgment of the
Veterans Court on the issue of whether DC 5055 covers
partial knee replacements, and we remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED

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