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 Justice, 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, Washington, DC.
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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 (“Veterans 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 requirements 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) applicable 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 Veterans 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 Veterans 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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HANSER v. MCDONOUGH 3
Hanser timely filed a notice of disagreement. Following examinations in October 2017, the VA issued a statement of the case, confirming the disability ratings
reductions on December 6, 2017. Hanser subsequently appealed 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 validity of any statute or regulation or any interpretation
thereof.” Sullivan,
815 F.3d at 788-89. Such legal determinations are reviewed de novo. See Cushman v. Shinseki,
576 F.3d 1290, 1296 (Fed. Cir. 2009). We may not, however, 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 constitutional 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) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (4) without observance 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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4 HANSER v. MCDONOUGH
plain meaning.” Goodman v. Shulkin, 870 F.3d 1383, 1386
(Fed. Cir. 2017). Regulatory interpretation, like statutory
interpretation, “is a holistic endeavor that requires consideration 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 regulation, thereby rendering superfluous as little of the statutory 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 paragraphs:
(a) Examination reports indicating improvement. Rating agencies will handle cases
affected by change of medical findings or diagnosis, so as to produce the greatest degree
of stability of disability evaluations consistent
with the laws and Department of Veterans Affairs regulations governing disability compensation 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 encountering a change of diagnosis will exercise
caution in the determination as to whether a
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HANSER v. MCDONOUGH 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 disability. . . .
(b) Doubtful cases. If doubt remains, after
according due consideration to all the evidence developed by the several items discussed 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 continued for long periods at the same level (5
years or more). They do not apply to disabilities 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 periods at the same level (5 years or more).” The parties are
in agreement that § 3.344(c) is unambiguous. They disagree, of course, as to the substance of that unambiguous
meaning. Hanser contends that the provision’s parenthetical 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 parenthetical is a definition, so for purposes of this regulation
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6 HANSER v. MCDONOUGH
a “long period” means five years or more. See Appellee Br.
at 10-12.
We agree with the parties that § 3.344(c) is unambiguous. 1 We further agree with the Secretary that the parenthetical here is definitional, so the requirements of
paragraphs (a) and (b) only apply to ratings that are unchanged for at least five years.
There is no general rule or presumption that a parenthetical 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 statutory 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 Medicare payment provision by considering “[t]he text and context”); 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 rating 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).
Case: 21-1974 Document: 38 Page: 7 Filed: 12/21/2022
HANSER v. MCDONOUGH 7
“the broader statutory context”); Chickasaw Nation v.
United States,
534 U.S. 84, 90 (2001) (noting that tax exemptions 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 positions – that the parenthetical at issue was a definition or
just an example – we noted that “general principles of construction support the view that a parenthetical is the definition 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 general context and structure . . . .”).
We do not read our statement in Novacor as establishing 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 Supreme Court cases that have found particular parentheticals, 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 benefits,” 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 parenthetical to show its position is “not only better, but also clear”);
Case: 21-1974 Document: 38 Page: 8 Filed: 12/21/2022
8 HANSER v. MCDONOUGH
from always, determine that a specific parenthetical provides 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 define words in a manner that diverges from ordinary meaning. 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.”) (citing Lopez v. Gonzales,
549 U.S. 47, 52-53 (2006)); see also
B. Garner, Modern English Usage 752 (4th ed. 2016) (explaining that “parentheses are used in four ways,” one of
which is to “specify, in one’s own running text, an authority, definition, explanation, reference, or translation”) (emphasis added). The key point, supported by all these
authorities, is that a parenthetical sometimes, but not always, supplies a definition, and discerning the effect of any
parenthetical requires an assessment of the specific language in context, an analysis we turn to now with respect
to § 3.344(c).
C
Chickasaw Nation, 534 U.S. at 95 (construing parenthetical in context of tax exemption, which “must be unambiguously proved”) (internal quotation marks omitted).
Case: 21-1974 Document: 38 Page: 9 Filed: 12/21/2022
HANSER v. MCDONOUGH 9
We conclude that the parenthetical contained in
§ 3.344(c) is definitional. Again, the language we are considering is: “The provisions of paragraphs (a) and (b) of this
section apply to ratings which have continued for long periods 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 veteran 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 procedures 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 definition, 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 ratings 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.
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10 HANSER v. MCDONOUGH
accorded the procedural benefits of (a) and (b). This totality of the circumstances approach may require it to consider, 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 population) 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 remains 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) superfluous. “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
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HANSER v. MCDONOUGH 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. Because “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 paragraphs (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 conclusion 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 improve.” In Hanser’s view, if a disability rating that is unchanged for five years always guarantees a veteran the
protections of paragraphs (a) and (b), while a disability rating 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 contained in § 3.344(c) is a mere afterthought or aside.
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12 HANSER v. MCDONOUGH
(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 incorrect.
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 veteran suffers from a particular disability. See 38 C.F.R.
§ 4.1 (“The percentage ratings represent as far as can practicably be determined the average impairment in earning
capacity resulting from such diseases and injuries and
their residual conditions in civil occupations.”). Disabilities “result[] from all types of diseases and injuries encountered as a result of or incident to military service.”
Id.
Together, then, the first two sentences of paragraph (c) provide 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 improve.
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
5 In Simon, 30 Vet. App. at 410, the Veterans Court
stated that the second sentence clarifies that the heightened protections of paragraphs (a) and (b) are not applicable 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 improve slightly but have not yet resulted in a lower rating.
Case: 21-1974 Document: 38 Page: 13 Filed: 12/21/2022
HANSER v. MCDONOUGH 13
us to dictate to the VA how to resolve such a conflict, should
it arise, because Mr. Hanser’s disability rating did not persist 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 sentences, 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 meaning 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 rating has been unchanged for five years or more, and whose
disability is also stable and not likely to improve, is guaranteed 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 reexaminations disclosing improvement in unstable disabilities
“will warrant reduction in rating,” while if the provisions
of paragraph (a) applied in such circumstances “[e]xaminations less full and complete than those in which payments
were authorized or continued” could not be used to reduce
a rating.
6 At oral argument, counsel for the Secretary asserted 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.
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14 HANSER v. MCDONOUGH
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 applicable. 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 regulation, it may not apply (a) and (b) to such a veteran.
E
We can easily dispose of Hanser’s remaining arguments. He contends that our interpretation of § 3.344 conflicts 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 statement of policy cannot contradict the plain meaning of a regulation. See generally First Interstate Bank v. United
States,
61 F.3d 876, 879 (Fed. Cir. 1995) (“The government’s policy argument, however, cannot override the plain
language of the agreement and the implementing regulations.”). 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 because it does not provide a standard for determining when
a disability is “stabilized” or “likely to improve.” Appellant
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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 doing before seemingly abandoning this contention in his reply 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 pursuant 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 regulation’s language superfluous. That cannot be right. Consistent with the language of the regulation and general
principles of construction, “(5 years or more)” is an example, 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 definitional, 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 position 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 concludes that the parenthetical is definitional because “The
parenthetical does not include the terms ‘e.g.’ or ‘for example’ or any other indication that it is merely illustrative.”
Maj. at 10. Then, it faults Mr. Hanser for failing to “identif[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 interpretative approach, in which the person asserting a parenthetical is not definitional bears the burden, is a profoundly
broad and flawed method of statutory/regulatory construction 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 effect. 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 general 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 parenthetical 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 typically used to convey an aside or afterthought,” not a binding 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 parentheticals 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.” and “substantial
other textual evidence” supported the same conclusion);
United States v. Coscia,
866 F.3d 782, 792–93 (7th Cir.
2017) (holding statute which stated “commonly known to
the trade as, ‘spoofing’ (bidding or offering with the intent
to cancel the bid before execution)” was defining the word
spoofing); Telecare Corp. v. Leavitt,
409 F.3d 1345, 1353–
54 (Fed. Cir. 2005) (holding that where the parenthetical
actually gives the statutory term a broader meaning than
it would ordinarily have, then the term should be understood to include that broader meaning); Pinellas Ice & Cold
Storage Co. v. Comm’r,
287 U.S. 462, 469 (1933) (holding a
parenthetical was definitional where it expanded the
meaning of the preceding terms “beyond the[ir] ordinary
and commonly accepted” meanings).
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4 HANSER v. MCDONOUGH
definitional. And importantly, no other court in the country has done so either.
The Supreme Court, again in 2022, confronted a parenthetical and again faced the question of whether it was
definitional or merely illustrative. In Boechler, P.C. v.
Commissioner of Internal Revenue, the Supreme Court began with the proposition that “a parenthetical . . . is typically used to convey an ‘aside’ or ‘afterthought’.” 142 S. Ct.
1493, 1498 (2022) (citing B. Garner, Modern English Usage
1020 (4th ed. 2016)). 2 After acknowledging this premise,
the Supreme Court analyzed the remainder of the text and
held that “the broader statutory context confirms the lack
of any clear statement.”
Id. At a minimum, these cases
confirm that there is no general principle of construction
that parentheticals are presumed to be definitional. It was
2 Though nothing is better than two recent Supreme
Court decisions, these are not the first decisions which indicated that parentheticals are not generally definitional.
See, e.g., Chickasaw Nation v. United States, 534 U.S. 84,
89 (2001) (“The use of parentheses emphasizes the fact that
that which is within is meant simply to be illustrative,
hence redundant—a circumstance underscored by the lack
of any suggestion that Congress intended the illustrative
list to be complete.”); Cabell Huntington Hosp., Inc. v.
Shalala,
101 F.3d 984, 990 (4th Cir. 1996) (“A parenthetical is, after all, a parenthetical, and it cannot be used to
overcome the operative terms of the statute.”). The government has itself argued that parentheticals are not normally definitional. See Reply Br. of Plaintiff-Appellant,
United States v. Kassouf, No. 96-4381,
1997 WL 34609476,
at *18–19 (6th Cir. 1997) (arguing that “if Congress had
wanted to override the usual non-restrictive effect of a
phrase set off in parentheses, it could have used [different]
words”).
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HANSER v. MCDONOUGH 5
therefore error for the majority’s analysis to begin with
such a presumption.
To determine whether a parenthetical is definitional or
illustrative, context matters: we look to the provision’s text
and structure to ascertain the meaning of the parenthetical. Here, the structure and text of the regulation affords
only one conclusion: that “(5 years or more)” is illustrative,
not definitional. Indeed, as the Veterans Court recognized
in Lehman v. Derwinski, “the regulation is devoid of any
language which could be construed as intended to establish
an inflexible mandatory minimum time period.” 1 Vet.
App. 339, 342 (1991). 3 And it would have been so easy for
the VA to include such language. For example, it could
have simply used the abbreviation “i.e.” in the parenthetical. 4 It did not use i.e. or e.g., but the related text and
structure of the regulation advance the case for the parenthetical being merely illustrative or exemplary. The regulatory section at issue provides:
(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and
(b) of this section apply to ratings which have
3 I agree with the majority that the Veterans Court
has made inconsistent statements over time about whether
this parenthetical is definitional and that we are not bound
by these statements. Maj. at 6 n.1.
4 The majority relies upon the failure to use “e.g.” or
“for example” as its basis for concluding that the VA didn’t
mean this to be an example, but the VA could have just as
easily used “i.e.” if it intended the parenthetical to be definitional. This was raised by the parties, but the majority
never addresses it because it begins from the faulty premise that parentheticals are definitional, and it merely needs
to determine whether the VA clearly indicated they should
be treated otherwise.
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6 HANSER v. MCDONOUGH
continued for long periods at the same level (5
years or more). They do not apply to disabilities which have not become stabilized and are
likely to improve. Reexaminations disclosing
improvement, physical or mental, in these
disabilities will warrant reduction in rating.
Our first context clue is that the parenthetical follows
the phrase “long periods.” According to the government
and the majority, the parenthetical defines that phrase.
The government concedes, however, that such an interpretation renders “long periods” superfluous. Oral Arg. at
23:06–52. “The [majority’s] reading is thus at odds with
one of the most basic interpretive canons, that a statute
should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous,
void or insignificant.” Corley v. United States, 556 U.S.
303, 314 (2009) (emphasis added).
Unlike the government, the majority claims that “long
periods” is not superfluous because “although not strictly
necessary” it provides context, namely that in the Secretary’s view five years or more is a long period. Maj. at 10–
11. With all due respect, this just makes no sense. If the
government said five years or more, there is no need to let
the world know, “oh and by the way, we think five years is
long.” It adds absolutely nothing; it is unnecessary and entirely extra, the very definition of superfluous. The majority cites no regulatory text or context supporting its
interpretation and is content to find against the veteran on
this issue of construction because it is defaulting to its general principle: a parenthetical is a definition unless proven
otherwise.
The textual clues do not stop there. The second sentence of § 3.344(c) explains that whether a rating period
qualifies as a “long period” is impacted by other factors
such as whether the disability has “stabilized” or is “likely
to improve.” That clarification is meaningful only if “(5
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HANSER v. MCDONOUGH 7
years or more)” is exemplary. Indeed, the government
readily admits that, if the parenthetical is a definition, the
entire second sentence of this regulation is “entirely superfluous,” “irrelevant,” and has “absolutely no impact.” Oral
Arg. at 28:41–29:19 (Q: “So, if I’m not mistaken, then what
you’re saying is, if we interpret the ‘long period’ as five
years or more, that is absolute, it decides the question, and
the entire next sentence about ‘[t]hey do not apply to disabilities which do not become stabilized and are likely to improve’ is entirely superfluous? It has absolutely no impact
on whether the heightened scrutiny applies? That five
years is it and all the other language in [§ 3.344(c)] is irrelevant? Is that what you’re arguing?” A: “I think so, yes,
Your Honor.”). Again, this offends one of our “most basic
interpretive canons.” Corley, 556 U.S. at 314.
The majority concludes that the second sentence is not
superfluous because it deals with disabilities rather than
disability ratings. According to the majority, the second
sentence requires that the procedures of (a) and (b) do not
apply to disabilities that are not stable and are likely to
improve. Maj. at 12. As the majority all but concedes, its
interpretation would create situations in which the regulation is internally inconsistent. Maj. at 12 (“There may well
be ambiguity [under our construction] 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.”).
What is the VA to do if a veteran presents with a continuous disability rating of five or more years, but a disability that is not stable and likely to improve? According to
the majority, the first sentence of § 3.344(c) unambiguously
entitles the veteran to the procedures of § 3.344(a)–(b),
while the second would unambiguously take them away.
We ought not adopt a construction which would render the
regulation internally inconsistent and potentially unworkable, especially where there is a reasonable alternative.
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8 HANSER v. MCDONOUGH
As to the relationship between the two sentences, the
government itself argued that if the rating is in place for 5
years or more, the veteran gets the heightened procedures
of (a) and (b) and that the second sentence of (c) (relating
to stability and improvement) has no impact. Oral Arg. at
26:32–27:44; see also Oral Arg. at 27:45–28:40. The majority contends that its contrary construction of this second
sentence does not preclude the VA from adhering to its position and extending the protections of sections (a) and (b)
to a veteran with a disability that has not stabilized or is
likely to improve. Maj. at 13 n.6. In doing so, the majority
effectively disavows its only argument that the second sentence is not superfluous. The majority also contests
whether its construction is anti-veteran, arguing its construction provides more certainty for some veterans while
construing the term as exemplary would require a case-bycase determination. Maj. at 13–14. The majority’s interpretation may indeed provide more certainty, but certainty
that fewer veterans are eligible for the protections of (a)
and (b) is hardly a more pro-veteran approach. My construction would extend eligibility for these minimal procedural protections to all veterans, 5 enabling the VA to
determine whether an individual veteran’s circumstances
meet the regulatory criteria. The majority’s interpretation
5 The heightened procedures of (a) simply require
that a rating in place for a long period shall not be reduced
without looking at the medical history and that medical examinations which are relied upon to reduce a rating should
be as complete as those that justified the rating. 38 C.F.R.
§ 3.344(a). The heightened procedure of (b) simply provides
that in “doubtful cases” the higher rating shall be left in
place.
38 C.F.R. § 3.344(b). These procedures, which the
majority strips from this veteran, are quite minimal protections for a veteran already adjudicated to have been rendered disabled by his military service.
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HANSER v. MCDONOUGH 9
results in denying all veterans procedural protections if
their ratings have been in effect less than 5 years (including Mr. Hanser at 4 years and 10 months), and possibly
denying claims even when the ratings have been in effect
longer than five years if the disabilities have not stabilized
or are likely to improve. There is simply no question—the
majority’s construction of these two sentences and how
they work together is more anti-veteran than my construction or the government’s proffered construction.
Logical, consistent meaning for the entire regulation
requires the VA to consider the totality of the circumstances to determine, case by case, whether a veteran’s disability is likely to improve or has stabilized. The first
sentence sets out the standard: (a) and (b) apply to ratings
in place for “long periods.” The second sentence gives context: to determine whether a rating has been in place for a
sufficiently long period, take into account the nature of the
disability, namely whether the disability has stabilized and
is likely to improve. There is good reason to believe that
the VA purposefully adopted the vaguer “long periods”
standard so that it had the flexibility to look at conditions
such as whether the disease has stabilized or is likely to
improve in determining whether the procedures of (a) and
(b) ought to attach—considerations expressly mentioned in
the regulation and something the VA is well equipped to
do. In the vast array of veterans’ disabilities, no doubt
there are some that stabilize much sooner than five years
and some that will likely improve after five years.
The majority’s interpretation of § 3.344(c) leaves no
room for the VA to consider those circumstances if a rating
decision has, like Mr. Hanser’s, been in place for four years
and 10 months. Under the majority’s construction, if the
disability rating has been in place for less than five years,
the veteran is not entitled to the protections and if the rating has been in place for five years or more the veteran is
also not entitled to the protections if the VA then determines (after a multifactor analysis) that the disability is
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10 HANSER v. MCDONOUGH
likely to improve or has not stabilized. Given the diverse
spectrum of veterans’ disabilities, that approach is bad policy. And it is inconsistent with the plain language of the
regulation.
Though the majority cites nothing in the text to support its conclusion that five years or more is definitional, it
is no doubt drawn to the simplicity of the rule it adopts—
unless the rating has been in place for five years or more,
no procedural protections apply. The only justification offered by the majority is administrative ease of enforcement; there is no text or context which supports its
interpretation. But it is important to note that even under
the majority’s construction five years does not become a
bright line rule. The majority interprets the second sentence as requiring that the government determine whether
the disease has stabilized or is likely to improve anytime a
rating has been in place for five years or more. Thus, under
the majority’s construction there would be no case-by-case
analysis for ratings in place less than five years (all such
veterans lose the procedural protections), but there would
be exactly this sort of case-by-case analysis for any rating
in place five years or more. Under the majority’s interpretation, there is still a multi-factor analysis anytime a rating has been in place for five years or more. And
importantly, the majority’s policy-based ease of administration approach is not a substitute for textual analysis
of the regulation.
I dissent from the majority’s regulatory interpretation.
Mr. Hanser had a consistent, stable rating for his disability
for more than 4 years and 10 months; I would vacate and
remand for the VA to consider whether the heightened procedures of (a) and (b) apply to Mr. Hanser after considering
the factors in 38 C.F.R. § 3.344(c). The text of the regulation affords only one construction: five years is not a
Case: 21-1974 Document: 38 Page: 26 Filed: 12/21/2022
HANSER v. MCDONOUGH 11
definitional per se bar 6 and, importantly, there is no presumption that parentheticals are definitional. The majority’s approach to parentheticals—starting from its general
principle that they should be treated as definitional and requiring that the veteran prove otherwise—is simply at
odds with how any other court has approached this canon
of statutory/regulatory interpretation. This is not a good
place for us to be—and the consequences are far reaching.
6 If the VA prefers a one-time-fits-all period, it can
modify its own regulation at any time to make that clear.
It would need only insert the letters “i.e.” into the parenthetical and modify the second sentence such that the provision as a whole would not be internally consistent.
