On June 27, 2014, the Court of Appeals for Veterans Claims (CAVC) published a decision in Hudgens v. Gibson. The critical operative regulation the CAVC was interpreting was 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055 (knee replacement (prosthesis)) and whether DC 5055 applies to partial knee replacement (PKR). This is a question commonly posed by veterans on popular veteran social media sites like Veterans Benefits Network, so it is important for both veteran and Veteran Service Officers (VSOs) to understand how DC 5055 applies to PKRs.
The majority held that “the plain language of DC 5055[] does not apply to partial knee replacements.” Therefore, a PKR can be appropriately rated under the diagnostic codes for Knee and Leg (DC 5256-5263), rather than the diagnostic codes for Prosthetic Implants. However, the majority reversed and remanded to the Board of Veterans’ Appeals to assess whether Mr. Hudgens should still be rated by analogy [38 C.F.R. § 4.20] under DC 5055, or whether Mr. Hudgens is entitled to a higher rating percentage under the various diagnostic codes affecting Knee and Leg.
Chief Judge Kasold, dissenting in part, held that the regulatory language of DC 5055 “is anything but clear . . . as to whether it covers only total knee replacements or whether it also covers partial knee replacements.” Chief Judge Kasold also noted that the Board of Veterans’ Appeals have, in the past, applied to DC 5055 to PKRs on at least eleven occasions. Given the fact that Chief Judge Kasold found there was some ambiguity in the regulatory language, he then considered the other canons of statutory/regulatory interpretation. While Chief Judge Kasold noted that deference is generally provided to an agency’s interpretation of its own regulations [commonly called “Chevron deference”], in light the inconsistent agency interpretations of DC 5055 “there is no basis to defer to the Secretary’s proffered interpretation.” Consequently, Chief Judge Kasold, citing to Brown v. Gardner, 513 U.S. 115, 118 (1994) (“[I]nterpretive doubt is to be resolved in the veteran’s favor [under Title 38]), opined that DC 5055 should apply to PKRs.
What should the average veteran take away from the decision in Hudgens v. Gibson . . . beyond think carefully if you are contemplating using your GI Bill to going to law school? Foremost, if you had a PKR in will likely be rated under Knee and Leg (DC 5256-5263) rather than DC 5055. Second, regardless of what stage you are in the VA adjudicative process, thorough and contemporaneous medical evidence documenting the level of disability is crucial so that the agency can apply the most operative diagnostic code to the disability picture.
What should attorneys and advocates for veterans take away from the decision in Hudgens v. Gibson? Unless resolved by the U.S. Supreme Court, there will always be a tension in regulatory interpretation in apply Chevron deference to veterans benefits under Title 38 when Gardner and its progeny provide for “interpretive doubt in the veteran’s favor.”