throbber
Case: 21-1974 Document: 38 Page: 1 Filed: 12/21/2022
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CLIFFORD T. HANSER,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2021-1974
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 19-5382, Senior Judge William A.
`Moorman.
`
`______________________
`
`Decided: December 21, 2022
`______________________
`
`KENNETH M. CARPENTER, Law Offices of Carpenter
`Chartered, Topeka, KS, argued for claimant-appellant.
`
` ELIZABETH MARIE PULLIN, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, argued for respondent-appellee.
`Also represented by BRIAN M. BOYNTON, PATRICIA M.
`MCCARTHY, LOREN MISHA PREHEIM; Y. KEN LEE,
`SAMANTHA ANN SYVERSON, Office of General Counsel,
`United States Department of Veterans Affairs, Washing-
`ton, DC.
`
`

`

`Case: 21-1974 Document: 38 Page: 2 Filed: 12/21/2022
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`2
`
`HANSER v. MCDONOUGH
`
` ______________________
`
`Before MOORE, Chief Judge, LOURIE and STARK, Circuit
`Judges.
`Opinion for the court filed by Circuit Judge STARK.
`Opinion dissenting filed by Chief Judge MOORE.
`STARK, Circuit Judge.
`Clifford T. Hanser seeks review of the decision of the
`United States Court of Appeals for Veterans Claims (“Vet-
`erans Court”) affirming the Board of Veterans’ Appeals’
`(“Board”) denial of Hanser’s challenge to the reduction of
`his disability rating. The Veterans Court, like the Board,
`determined that Hanser’s rating reduction was not subject
`to 38 C.F.R. § 3.344, which sets out procedural require-
`ments that must be followed before certain longstanding
`disability ratings are reduced. We, too, conclude that
`§ 3.344(c) makes the procedures of §§ 3.344(a) and (b) ap-
`plicable only to disability ratings which have continued at
`the same level for five years or more. Because Hanser’s
`ratings do not satisfy this condition, we agree with the Vet-
`erans Court that § 3.344(c) does not apply to him, and,
`thus, we affirm.
`
`I
` Hanser served in the U.S. Army from October 1979 to
`October 1999. In April 2012, he was assigned 20% service-
`connected disability ratings, effective July 26, 2011, for his
`left leg radiculopathy and his bilateral arm radiculopathy.
`Thereafter, in March 2014 and November 2015, lumbar
`and cervical spine examinations showed improvement in
`his conditions. Consequently, Hanser’s Department of Vet-
`erans Affairs (“VA”) regional office proposed reducing his
`disability ratings. On March 7, 2016, the VA reduced his
`disability ratings to 0% for both his left leg and bilateral
`arm radiculopathy, effective June 1, 2016.
`
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`Case: 21-1974 Document: 38 Page: 3 Filed: 12/21/2022
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`HANSER v. MCDONOUGH
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`3
`
`Hanser timely filed a notice of disagreement. Follow-
`ing examinations in October 2017, the VA issued a state-
`ment of the case, confirming the disability ratings
`reductions on December 6, 2017. Hanser subsequently ap-
`pealed to the Board, which concluded that the procedural
`protections of 38 C.F.R. § 3.344 did not apply to Hanser
`and, therefore, affirmed the VA’s ratings reductions on
`April 16, 2019. His subsequent appeal to the Veterans
`Court ended with a Memorandum Decision affirming the
`Board’s decision on February 23, 2021.
`Hanser then timely appealed to our Court. We have
`jurisdiction pursuant to 38 U.S.C. § 7292(c).
`II
` We have exclusive, but limited, jurisdiction to review
`decisions of the Veterans Court. See 38 U.S.C. § 7292(c);
`Sullivan v. McDonald, 815 F.3d 786, 788-89 (Fed. Cir.
`2016). “We may review legal questions, including the va-
`lidity of any statute or regulation or any interpretation
`thereof.” Sullivan, 815 F.3d at 788-89. Such legal deter-
`minations are reviewed de novo. See Cushman v. Shinseki,
`576 F.3d 1290, 1296 (Fed. Cir. 2009). We may not, how-
`ever, review (1) “a challenge to a factual determination” or
`(2) “a challenge to a law or regulation as applied to the facts
`of a particular case,” unless the challenge presents a con-
`stitutional issue. 38 U.S.C. § 7292(d)(2).
`“We may set aside any regulation or interpretation
`thereof if we find it: (1) arbitrary, capricious, an abuse of
`discretion, or otherwise not in accordance with law; (2) con-
`trary to constitutional right, power, privilege, or immunity;
`(3) in excess of statutory jurisdiction, authority, or limita-
`tions, or in violation of a statutory right; or (4) without ob-
`servance of procedure required by law.” Sullivan, 815 F.3d
`at 789 (citing 38 U.S.C. § 7292(d)(1)).
`
`“When construing a regulation, it is appropriate first to
`examine the regulatory language itself to determine its
`
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`HANSER v. MCDONOUGH
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`plain meaning.” Goodman v. Shulkin, 870 F.3d 1383, 1386
`(Fed. Cir. 2017). Regulatory interpretation, like statutory
`interpretation, “is a holistic endeavor that requires consid-
`eration of a [regulatory] scheme in its entirety.” Meeks v.
`West, 216 F.3d 1363, 1366 (Fed. Cir. 2000) (citing U.S. Nat’l
`Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,
`454-55 (1993)); Boeing Co. v. Sec’y of Air Force, 983 F.3d
`1321, 1327 (Fed. Cir. 2020) (applying same interpretive
`rules to regulations and statutes). “[W]e attempt to give
`full effect to all words contained within [a] statute or regu-
`lation, thereby rendering superfluous as little of the statu-
`tory or regulatory language as possible.” Glover v. West,
`185 F.3d 1328, 1332 (Fed. Cir. 1999). “If the regulatory
`language is clear and unambiguous, the inquiry ends with
`the plain meaning.” Goodman, 870 F.3d at 1386.
`III
`A
`Hanser’s contentions require us to examine 38 C.F.R.
`§ 3.344(c), which identifies the circumstances under which
`the procedural requirements of §§ 3.344(a) and (b) apply.
`Therefore, we set out the pertinent portions of these para-
`graphs:
`(a) Examination reports
`im-
`indicating
`provement. Rating agencies will handle cases
`affected by change of medical findings or di-
`agnosis, so as to produce the greatest degree
`of stability of disability evaluations consistent
`with the laws and Department of Veterans Af-
`fairs regulations governing disability compen-
`sation and pension. . . . Examinations less full
`and complete than those on which payments
`were authorized or continued will not be used
`as a basis of reduction. . . . Rating boards en-
`countering a change of diagnosis will exercise
`caution in the determination as to whether a
`
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`HANSER v. MCDONOUGH
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`5
`
`change in diagnosis represents no more than
`a progression of an earlier diagnosis, an error
`in prior diagnosis or possibly a disease entity
`independent of the service-connected disabil-
`ity. . . .
`
`(b) Doubtful cases. If doubt remains, after
`according due consideration to all the evi-
`dence developed by the several items dis-
`cussed in paragraph (a) of this section, the
`rating agency will continue the rating in effect
`. . . .
`
`
`
`(c) Disabilities which are likely to improve.
`The provisions of paragraphs (a) and (b) of
`this section apply to ratings which have con-
`tinued for long periods at the same level (5
`years or more). They do not apply to disabili-
`ties which have not become stabilized and are
`likely to improve. Reexaminations disclosing
`improvement, physical or mental, in these
`disabilities will warrant reduction in rating.
`B
`Resolution of this appeal turns on the first sentence of
`§ 3.344(c): “The provisions of paragraphs (a) and (b) of this
`section apply to ratings which have continued for long pe-
`riods at the same level (5 years or more).” The parties are
`in agreement that § 3.344(c) is unambiguous. They disa-
`gree, of course, as to the substance of that unambiguous
`meaning. Hanser contends that the provision’s parenthe-
`tical reference to “5 years or more” is not a definition but
`is, instead, merely a guideline, so a disability rating may
`qualify as having been unchanged for a “long period” even
`if it has persisted for less than five years. See Appellant
`Br. at 16. The Secretary, by contrast, argues that the par-
`enthetical is a definition, so for purposes of this regulation
`
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`HANSER v. MCDONOUGH
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`a “long period” means five years or more. See Appellee Br.
`at 10-12.
` We agree with the parties that § 3.344(c) is unambigu-
`ous.1 We further agree with the Secretary that the paren-
`thetical here is definitional, so the requirements of
`paragraphs (a) and (b) only apply to ratings that are un-
`changed for at least five years.
`There is no general rule or presumption that a paren-
`thetical is always definitional. Instead, as in many areas
`of law (and life), context is crucial. Hence, to determine
`whether a particular parenthetical provides a definition or
`is “merely an illustrative example,” Novacor Chems., Inc.
`v. United States, 171 F.3d 1376, 1381 (Fed. Cir. 1999), we
`must consider the specific language at issue in the statu-
`tory or regulatory context in which it appears and then
`draw the most sensible conclusion about its meaning. See,
`e.g., Becerra v. Empire Health Found., 142 S. Ct. 2354,
`2362 (2022) (construing parenthetical contained in Medi-
`care payment provision by considering “[t]he text and con-
`text”); Boechler, P.C. v. Comm’r of Internal Revenue, 142 S.
`Ct. 1493, 1498 (2022) (construing parenthetical in tax code
`by considering “the provision’s text [and] structure” and
`
`
`1 The Veterans Court’s inconsistent statements as to
`whether the parenthetical is a definition do not render the
`regulation ambiguous. Compare Simon v. Wilkie, 30 Vet.
`App. 403, 410 (2018) (“[A] rating becomes entitled to
`heightened procedural protections under § 3.344(c) only
`when it has existed at the exact same percentage for at
`least 5 years.”) with Lehman v. Derwinski, 1 Vet. App. 339,
`342 (1991) (describing § 3.344(c) in a case in which the rat-
`ing had been in effect for five years – counting leap days –
`as a “guideline”). We are not bound by the Veterans Court’s
`decisions. See Harris v. West, 203 F.3d 1347, 1350 (Fed.
`Cir. 2000).
`
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`HANSER v. MCDONOUGH
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`7
`
`“the broader statutory context”); Chickasaw Nation v.
`United States, 534 U.S. 84, 90 (2001) (noting that tax ex-
`emptions are ordinarily enacted explicitly, not suggestively
`in parentheticals).
`We followed this same approach in Novacor, 171 F.3d
`at 1380-81. After describing the parties’ competing posi-
`tions – that the parenthetical at issue was a definition or
`just an example – we noted that “general principles of con-
`struction support the view that a parenthetical is the defi-
`nition of the term which it follows” and then considered the
`specific regulatory language involved. Recognizing that
`context is key, in Novacor we rejected the view that the
`specific parenthetical was definitional, concluding that the
`“argument that the parenthetical is merely an illustrative
`example makes sense.” Id. at 1381; see also United States
`v. Monjaras-Castaneda, 190 F.3d 326, 330 (5th Cir. 1999)
`(“We read the parenthetical descriptively based on the gen-
`eral context and structure . . . .”).
`We do not read our statement in Novacor as establish-
`ing a presumption that parentheticals are definitions or
`that a party arguing for a contrary outcome bears a burden
`greater than that of a party on the other side of the dispute.
`Again, there is no such presumption.2 Courts often, but far
`
`2 Nor, we would add, is there a presumption that
`parentheticals are not definitional, notwithstanding Su-
`preme Court cases that have found particular parentheti-
`cals, in particular contexts, to be not definitional. See
`Becerra, 142 S. Ct. at 2365 (concluding that where statute
`employed “consistent meaning” for term “entitled to bene-
`fits,” Congress would have not changed that meaning
`“simply by adding ‘(for such days)’”); Boechler, 142 S. Ct. at
`1499 (construing whether provision was jurisdictional and
`thus applying “the clear-statement rule,” imposing extra
`burden on party seeking definitional reading of parenthe-
`tical to show its position is “not only better, but also clear”);
`
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`Case: 21-1974 Document: 38 Page: 8 Filed: 12/21/2022
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`8
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`HANSER v. MCDONOUGH
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`from always, determine that a specific parenthetical pro-
`vides a definition. See, e.g., Pinellas Ice & Cold Storage Co.
`v. Commissioner, 287 U.S. 462, 469-70 (1933) (concluding
`that parenthetical “expand[s]” meaning of “merger” and
`“consolidation” beyond their ordinary meaning); Parkway
`1046, LLC v. U.S. Home Corp., 961 F.3d 301, 314 (4th Cir.
`2020) (concluding that parenthetical served “a defining
`function”). On other occasions, courts that concluded the
`parenthetical they were evaluating was not definitional
`still recognized the principle that parentheticals often do
`provide definitions. See, e.g., Telecare Corp. v. Leavitt, 409
`F.3d 1345, 1353 (Fed. Cir. 2005) (“Statutes frequently de-
`fine words in a manner that diverges from ordinary mean-
`ing. And this can be done through a parenthetical as well
`as a specific definitional provision . . . .”); United States v.
`Coscia, 866 F.3d 782, 792 (7th Cir. 2017) (“The Supreme
`Court has read parenthetical language like the language
`before us today as definitional instead of illustrative.”) (cit-
`ing Lopez v. Gonzales, 549 U.S. 47, 52-53 (2006)); see also
`B. Garner, Modern English Usage 752 (4th ed. 2016) (ex-
`plaining that “parentheses are used in four ways,” one of
`which is to “specify, in one’s own running text, an author-
`ity, definition, explanation, reference, or translation”) (em-
`phasis added). The key point, supported by all these
`authorities, is that a parenthetical sometimes, but not al-
`ways, supplies a definition, and discerning the effect of any
`parenthetical requires an assessment of the specific lan-
`guage in context, an analysis we turn to now with respect
`to § 3.344(c).
`
`C
`
`
`Chickasaw Nation, 534 U.S. at 95 (construing parenthe-
`tical in context of tax exemption, which “must be unambig-
`uously proved”) (internal quotation marks omitted).
`
`
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`HANSER v. MCDONOUGH
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`9
`
`We conclude that the parenthetical contained in
`§ 3.344(c) is definitional. Again, the language we are con-
`sidering is: “The provisions of paragraphs (a) and (b) of this
`section apply to ratings which have continued for long pe-
`riods at the same level (5 years or more).” Read in context,
`we conclude that this provision directs the VA to accord the
`procedural protections of paragraphs (a) and (b) to any vet-
`eran whose disability rating has lasted for a “long period[],”
`which the regulation precisely defines as “(5 years or
`more).” For a veteran to be entitled to the protections of (a)
`and (b), the veteran’s disability rating must have continued
`at the same level for five years or more.
`Section 3.344(c) guides the VA’s determinations as to
`whether procedures that make it more difficult to reduce a
`rating need to be followed, and it provides that such proce-
`dures apply when a rating has been in place, unchanged,
`for a long period; when these circumstances are present,
`the regulation makes it harder for the VA to disrupt the
`veteran’s expectations.3 Without the parenthetical defini-
`tion, the VA would have to evaluate, on a case by case basis,
`how long a rating must persist before a veteran is to be
`
`
`3 The premise that longstanding ratings should be
`harder to disturb than more recently-determined ratings is
`itself longstanding. The regulatory provision that is now
`§ 3.344(c) appeared as early as in 38 C.F.R. § 2.1172(c)
`(1946), and provided, in part, as follows:
`The above provisions apply to permanent rat-
`ings or to those which on account of their long
`continuance at the same level (five years or
`more) are on a parity with permanent ratings.
`Such provisions of regulations and procedure
`are not for application in the cases of veterans
`so recently discharged from the service that
`their disability has not been stabilized.
`
`

`

`Case: 21-1974 Document: 38 Page: 10 Filed: 12/21/2022
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`10
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`HANSER v. MCDONOUGH
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`accorded the procedural benefits of (a) and (b). This total-
`ity of the circumstances approach may require it to con-
`sider, for example, whether “long” is determined in relation
`to the age of the veteran, the amount of time the disability
`has persisted, its prognosis, or some combination of these
`(and perhaps other) factors. Our nation benefits from the
`service of millions of veterans, who (like the civilian popu-
`lation) suffer from all manner of disabilities, arising in
`countless, dynamic combinations. By clearly defining the
`length of time a disability rating must persist before the
`procedures of (a) and (b) apply, the Secretary has provided
`a simple rule for VA regional offices to implement in the
`vast array of circumstances they encounter. For a veteran
`to be guaranteed the heightened protections of paragraphs
`(a) and (b), he or she must have a disability rating that re-
`mains at the same level for at least five years.
`The parenthetical in § 3.344(c) does not include the
`term “e.g.” or “for example” or any other indication that it
`is merely illustrative. Moreover, unlike the situation we
`confronted in Novacor, the remaining language of § 3.344
`does not limit or alter what constitutes a “long period.” Nor
`has Hanser identified any reason why the Secretary would
`have included the parenthetical in the regulation as merely
`a guideline – especially when “long periods” is already a
`guideline – and we have been unable to conceive of any
`such reason ourselves.
`Contrary to the dissent’s contention, Dissent at 6-7, our
`conclusion that “5 years or more” is definitional does not
`render any portion of the first sentence of § 3.344(c) super-
`fluous. “Long periods,” although not strictly necessary, is
`not superfluous. Its presence gives further context to what
`the regulation is accomplishing: making it more difficult
`for the VA to reduce disability ratings that have persisted
`for what the Secretary has deemed to be a sufficient length
`of time. On this point, we agree with the Secretary: “the
`regulation uses parentheticals to add precision, i.e., ‘long
`
`

`

`Case: 21-1974 Document: 38 Page: 11 Filed: 12/21/2022
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`HANSER v. MCDONOUGH
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`11
`
`periods at the same level’ is parenthetically and more fully
`explained as five years or more.” Appellee Br. at 12.4
` We agree with Hanser that the regulation could have
`been written more clearly. See Appellant Br. at 16-17. Be-
`cause “5 years or more” is the definition of a “long period”
`for purposes of § 3.344(c), it would have been preferable if
`the drafters had simply stated: “The provisions of para-
`graphs (a) and (b) of this section apply to ratings which
`have continued for 5 years or more.” But the law does not
`require regulations to be written perfectly and deviations
`from the ideal do not render them ambiguous. See Caraco
`Pharma. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 416
`(2012) (“[T]he mere possibility of clearer phrasing cannot
`defeat the most natural reading of a statute; if it could
`(with all due respect to Congress), we would interpret a
`great many statutes differently than we do.”).
`Here, the unambiguous meaning of § 3.344(c) is that
`the requirements of paragraphs (a) and (b) only apply when
`a disability rating has continued at the same level for five
`years or more.
`
`D
` Hanser contends, and the dissent agrees, that our con-
`clusion that a “long period” is “five years or more” renders
`the second sentence of § 3.344(c) superfluous. Appellant
`Br. at 20-22; Dissent at 7-8. This second sentence provides
`that paragraphs (a) and (b) “do not apply to disabilities
`which have not become stabilized and are likely to im-
`prove.” In Hanser’s view, if a disability rating that is un-
`changed for five years always guarantees a veteran the
`protections of paragraphs (a) and (b), while a disability rat-
`ing that has persisted for less than five years never gives
`rise to these protections, the further directive that (a) and
`
`4 Neither party argues that the parenthetical con-
`tained in § 3.344(c) is a mere afterthought or aside.
`
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`Case: 21-1974 Document: 38 Page: 12 Filed: 12/21/2022
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`12
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`HANSER v. MCDONOUGH
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`(b) do not apply to disabilities that are not stabilized and
`are likely to improve will never determine the applicability
`of (a) and (b). This reality, he insists, must mean that our
`understanding of the first sentence of § 3.344(c) is incor-
`rect.
` We are unpersuaded. Whereas the first sentence of
`§ 3.344(c) is concerned with disability ratings, the second
`sentence addresses disabilities. Disability ratings are the
`rating agency’s assessments of the degree to which a vet-
`eran suffers from a particular disability. See 38 C.F.R.
`§ 4.1 (“The percentage ratings represent as far as can prac-
`ticably be determined the average impairment in earning
`capacity resulting from such diseases and injuries and
`their residual conditions in civil occupations.”). Disabili-
`ties “result[] from all types of diseases and injuries encoun-
`tered as a result of or incident to military service.” Id.
`Together, then, the first two sentences of paragraph (c) pro-
`vide that the procedures of (a) and (b) apply when ratings
`have continued unchanged for five years or more but do not
`apply to disabilities that are not stable and are likely im-
`prove.
`There may well be ambiguity as to what a rating
`agency should do if a veteran presents with a continuous
`rating of five years or more but also a disability that is not
`stable and is likely to improve.5 This case does not require
`
`In Simon, 30 Vet. App. at 410, the Veterans Court
`5
`stated that the second sentence clarifies that the height-
`ened protections of paragraphs (a) and (b) are not applica-
`ble to “disabilities where slight improvement is shown, or
`expected in the future, but when such improvement does
`not reach a level that warrants a lower rating in terms of a
`percentage on the rating scale.” On this view, without the
`second sentence, the heightened protections of paragraphs
`(a) and (b) would still apply to disabilities that may im-
`prove slightly but have not yet resulted in a lower rating.
`
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`HANSER v. MCDONOUGH
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`13
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`us to dictate to the VA how to resolve such a conflict, should
`it arise, because Mr. Hanser’s disability rating did not per-
`sist unchanged for five years.6 Nor was the issue presented
`or briefed. It is enough for our purposes to observe that in
`the absence of the second sentence there would not even be
`an arguable conflict between the first and second sen-
`tences, which tells us that the second sentence is doing
`something and is not superfluous. Again, we conclude that
`the first sentence of § 3.344(c) has the unambiguous mean-
`ing we have explained above.
`The dissent faults our construction for being less pro-
`veteran than its own. Dissent at 8-9. Our reading of the
`VA’s regulation means that a veteran whose disability rat-
`ing has been unchanged for five years or more, and whose
`disability is also stable and not likely to improve, is guar-
`anteed the procedural protections of (a) and (b) before his
`or her rating can be reduced. Were the dissent’s view to
`prevail, by contrast, veterans with disability ratings that
`have continued at the same level for five years or more
`
`
`See id. Such a view would seem to gain support from the
`third sentence of § 3.344(c), which provides that reexami-
`nations disclosing improvement in unstable disabilities
`“will warrant reduction in rating,” while if the provisions
`of paragraph (a) applied in such circumstances “[e]xamina-
`tions less full and complete than those in which payments
`were authorized or continued” could not be used to reduce
`a rating.
`
` At oral argument, counsel for the Secretary as-
`serted that if such a scenario were to arise, paragraphs (a)
`and (b) would apply. Oral Arg. at 27:12-29:24. She did not
`elaborate on her reasoning. Nothing in our decision today
`should be understood as precluding the VA from adhering
`to this position and providing the benefits of (a) and (b) to
`such veterans.
`
` 6
`
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`14
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`HANSER v. MCDONOUGH
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`could still be found by the VA to have a disability rating
`that has not “continued for long periods” and, hence, would
`not obtain the benefits of (a) and (b). The dissent would
`require all veterans to await the VA’s case-by-case review
`before knowing whether (a) and (b) will be deemed applica-
`ble. On our view, the only veterans who lack certainty as
`to whether (a) and (b) apply are those who have both an
`unchanged rating for five years and also a disability which
`has not become stabilized and is likely to improve. We do
`not think it obvious which result, ours or the dissent’s, is
`more or less favorable to veterans. Moreover, as already
`noted, we are leaving it open for the VA to determine
`whether the protections of (a) and (b) apply to veterans who
`have both a stable rating for five or more years and also a
`disability that is not stable and is likely to improve – if such
`a veteran presents this issue, as Hanser’s case does not.
`The “anti-veteran” position, which we do not endorse,
`would be to direct the VA that, under the current regula-
`tion, it may not apply (a) and (b) to such a veteran.
`E
`We can easily dispose of Hanser’s remaining argu-
`ments. He contends that our interpretation of § 3.344 con-
`flicts with 38 C.F.R. § 3.103(a), which requires the VA to
`“render a decision which grants [the veteran] every benefit
`that can be supported in law while protecting the interests
`of the Government.” Appellant Br. at 17-18. This state-
`ment of policy cannot contradict the plain meaning of a reg-
`ulation. See generally First Interstate Bank v. United
`States, 61 F.3d 876, 879 (Fed. Cir. 1995) (“The govern-
`ment’s policy argument, however, cannot override the plain
`language of the agreement and the implementing regula-
`tions.”). As we have held, there are no ambiguities here to
`be resolved in anyone’s favor. Hanser also argues that the
`second sentence of § 3.344(c) is arbitrary and capricious be-
`cause it does not provide a standard for determining when
`a disability is “stabilized” or “likely to improve.” Appellant
`
`

`

`Case: 21-1974 Document: 38 Page: 15 Filed: 12/21/2022
`
`HANSER v. MCDONOUGH
`
`15
`
`Br. at 18-22. Hanser forfeited this argument by not raising
`it with the Board or Veterans Court. See Emenaker v.
`Peake, 551 F.3d 1332, 1337 (Fed. Cir. 2008). Finally, the
`Veterans Court did not defer to the Board’s interpretation
`of § 3.344(c), which Hanser unpersuasively accused it of do-
`ing before seemingly abandoning this contention in his re-
`ply brief. See Reply Br. at 17, 26.
`We have considered Hanser’s additional arguments
`and find they lack merit.
`
`IV
`
`It is undisputed that none of Hanser’s disability ratings
`continued unchanged for “5 years or more.” App. 4. Thus,
`Hanser does not meet the required minimum period pursu-
`ant to § 3.344(c) and is not subject to the provisions of §
`3.344(a) and (b). For the foregoing reasons, we affirm the
`Veterans Court’s decision.
`AFFIRMED
`COSTS
`
`No costs.
`
`

`

`Case: 21-1974 Document: 38 Page: 16 Filed: 12/21/2022
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CLIFFORD T. HANSER,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2021-1974
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 19-5382, Senior Judge William A.
`Moorman.
`
`______________________
`
`MOORE, Chief Judge, dissenting.
`The majority interprets § 3.344(c)’s parenthetical as
`unambiguously definitional. As the government concedes,
`however, that interpretation renders much of the regula-
`tion’s language superfluous. That cannot be right. Con-
`sistent with the language of the regulation and general
`principles of construction, “(5 years or more)” is an exam-
`ple, not a definition. I respectfully dissent.
`The majority’s regulatory interpretation begins with a
`flawed premise that “general principles of construction
`support the view that a parenthetical is the definition of
`the term which it follows.” Maj. at 7 (quoting Novacor
`Chems., Inc. v. United States, 171 F.3d 1376, 1381 (Fed.
`
`

`

`Case: 21-1974 Document: 38 Page: 17 Filed: 12/21/2022
`
`2
`
`HANSER v. MCDONOUGH
`
`Cir. 1999)). Although the majority purports to recognize
`that “there is no presumption” that parentheticals are def-
`initional, Maj. at 7, and that context is crucial—to which I
`am in violent agreement—its analysis of the regulation at
`issue makes clear the majority’s undeniable starting posi-
`tion is nevertheless that parentheticals are presumptively
`definitional. Lest there was any doubt as to the majority’s
`approach to this canon of construction, the majority con-
`cludes that the parenthetical is definitional because “The
`parenthetical does not include the terms ‘e.g.’ or ‘for exam-
`ple’ or any other indication that it is merely illustrative.”
`Maj. at 10. Then, it faults Mr. Hanser for failing to “iden-
`tif[y] any reason why the Secretary would have included
`the parenthetical in the regulation as merely a guideline.”
`Id.
`This is a beautifully simple case of construction, and
`the majority is in error as to principles of construction. It
`is important to note that there are literally thousands of
`parentheticals in the U.S. Code—so the majority’s inter-
`pretative approach, in which the person asserting a paren-
`thetical is not definitional bears the burden, is a profoundly
`broad and flawed method of statutory/regulatory construc-
`tion which would impact every conceivable area of law. The
`majority’s starting point was clearly that the parenthetical
`was definitional—there is no such general principle. The
`majority claims it has not imposed any burden on Mr.
`Hanser. Maj. at 7. But in faulting Mr. Hanser for failing
`to identify affirmative indications the parenthetical is not
`definitional, the majority has placed the burden upon him.
`And in concluding the parenthetical is a definition despite
`the absence of any textual support for that interpretation,
`the majority gives its unstated presumption dispositive ef-
`fect. The majority’s claim that there is no presumption
`feels a lot like Obi-Wan’s claim, “These aren’t the droids
`you’re looking for.” And I am no Stormtrooper.
`Novacor, the only case cited by the majority for its gen-
`eral principle that parentheticals are definitional, cites no
`
`

`

`Case: 21-1974 Document: 38 Page: 18 Filed: 12/21/2022
`
`HANSER v. MCDONOUGH
`
`3
`
`authority for that proposition and actually held the paren-
`thetical at issue was “merely an illustrative example.” 171
`F.3d at 1381. That dicta, uttered 20 years ago in a single
`case, has not been followed.1 And recently, two Supreme
`Court cases have made clear that “a parenthetical is typi-
`cally used to convey an aside or afterthought,” not a bind-
`ing definition. Becerra v. Empire Health Found., for Valley
`Hosp. Med. Ctr., 142 S. Ct. 2354, 2365 (2022). After noting
`that parentheticals are usually an “aside or afterthought,”
`the Supreme Court concluded “nothing about the ‘(for such
`days)’ parenthetical signals anything different.” Id. The
`Supreme Court did not begin, as the majority has, from the
`proposition that there exists a general principle applicable
`to parentheticals
`that requires
`treating
`them as
`
`
`1 The only other cases cited by the majority do not
`assert a general rule, but rather conclude, based on other
`language in the statute and context, that the parentheti-
`cals in those statutes were definitional. See Parkway 1046,
`LLC v. U. S. Home Corp., 961 F.3d 301, 314 (4th Cir. 2020)
`(interpreting a contractual parenthetical to be definitional
`where the parenthetical included “i.e.”

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