Appeal from the United States Court of Appeals for Veterans Claims in No. 12-2009, Judge Alan G. Lance, Sr.
GARTH BAER, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for claimant-appellant. With him on the brief were RONALD L. SMITH and BENJAMIN T. SIROLLY.
NICHOLAS JABBOUR, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, MARTIN F. HOCKEY, JR., Assistant Director, and JAMES SWEET, Trial Attorney. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and CHRISTINA GREGG, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel were CHRISTA A. SHRIBER and Y. KEN LEE.
Before LOURIE, CLEVENGER, and CHEN, Circuit Judges.
Lourie, Circuit Judge.
Donald Spicer appeals from the decision of the United States Court of Appeals for Veterans Claims (" Veterans Court" ) affirming the decision of the Board of Veterans' Appeals (" Board" ) finding that Stephen R. Spicer (" Spicer" ) was not entitled to an increased rating under 38 C.F.R § 4.71a, Diagnostic Code (" DC" ) 5003.[*] See Spicer v. Shinseki, No. 12-2009, 2013 WL 2902798 (Vet. App. June 14, 2013). Because the Veterans Court did not err in interpreting the governing regulation, we affirm.
Spicer served on active duty in the Navy from February 1984 to February 1987. In
1986, Spicer fractured his left little finger aboard a ship when a door closed on his hand. The fracture required surgery, which ultimately resulted in the finger joint fusing. In 2007, a Department of Veterans Affairs (" VA" ) examiner diagnosed Spicer as having degenerative arthritis of the distal interphalangeal (" DIP" ) joint in his left little finger. A VA regional office denied Spicer a compensable rating for his left finger disability, and Spicer appealed to the Board.
The Board denied Spicer's increased rating claim. It found that although Spicer's left finger disability was manifested by pain and limitation of motion, Spicer failed to meet the criteria for a compensable evaluation for a left finger disability under either DC 5227 or 5230.
Spicer then appealed to the Veterans Court, arguing that the Board failed to consider DC 5003. Spicer, 2013 WL 2902798, at *2. Spicer argued that DC 5003 assigns a 10% rating for either a single affected major joint or a group of affected minor joints and that 38 C.F.R. § 4.45(f) does not mandate that multiple minor joints be involved. Id.
The Veterans Court affirmed the Board's decision, holding that the Board did not err by failing to consider DC 5003. Id. The Veterans Court found that " the DIP joint is not a major joint or minor joint group for the purpose of rating disabilities from arthritis." Id. at 3 (citing 38 C.F.R. § 4.45(f)). The Veterans Court noted that, although the Board did not separately consider the applicability of DC 5003 to Spicer, any possible error was harmless because DC ...