Michael D. Vancott v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL D. VANCOTT,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2331
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-7375, Judge Joseph L. Toth.
______________________
Decided: July 24, 2026
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant. Also represented by
J OHN D. N ILES .
MOLLIE L ENORE G ROPP , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by MARTIN F. HOCKEY , J R., BORISLAV K USHNIR,
P ATRICIA M. MC CARTHY , BRETT SHUMATE; RICHARD
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VANCOTT v. COLLINS 2
STEPHEN HUBER, D EREK SCADDEN, Office of General Coun-
sel, United States Department of Veterans Affairs, Wash-
ington, DC.
______________________
Before D YK, REYNA, and STARK, Circuit Judges.
S TARK, Circuit Judge.
Michael Vancott appeals a judgment of the U.S. Court
of Appeals for Veterans Claims (“Veterans Court”) finding
no clear and unmistakable error (“CUE”) in a 2012 United
States Department of Veterans Affairs (“VA”) rating deci-
sion, which assigned Mr. Vancott a 10% service-connection
disability rating for his left knee. We affirm.
I
Mr. Vancott served in the U.S. Air Force from 1998 to
2012. In 2000, he tore the medial meniscus of his left knee,
which was surgically repaired in 2003. In May 2011, while
still on active duty, Mr. Vancott filed a disability compen-
sation claim for a “[l]eft knee condition.” On June 10, 2011,
a VA physician conducted an examination and observed
that Mr. Vancott had “intermittent pain and swelling,”
“painful motion,” and knee flexion limited to “130 degrees
with pain at the end range.” Appx18-20. The physician’s
diagnosis was “[l]eft knee medial meniscus tear status post
surgical repair.” Appx21.
In May 2012, the VA Regional Office (“RO”) assigned
Mr. Vancott a 10% rating for his left knee condition, apply-
ing hyphenated diagnostic code (“DC”) 5260-5020. Finding
that “medial meniscus tear post surgical repair” is “not spe-
cifically listed in the rating schedule,” the RO rated by
analogy to other conditions. Appx28; see also 38 C.F.R.
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VANCOTT v. COLLINS 3
§ 4.27 (“When an unlisted disease, injury, or residual con-
dition is encountered, [it] requir[es] rating by analogy.”).1
Specifically, the VA rated Mr. Vancott’s left knee disability
by applying DC 5003, which provides, in pertinent part:
[1] When . . . the limitation of motion of the specific
joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 pct
is for application for each such major joint or group
of minor joints affected by limitation of motion . . . .
[2] Limitation of motion must be objectively con-
firmed by findings such as swelling, muscle spasm,
or satisfactory evidence of painful motion.
38 C.F.R. § 4.71a (bracketed numbering added).
In assigning a 10% rating for Mr. Vancott’s left knee
disability, the RO relied on the results of the VA physi-
1 As the Veterans Court explained:
Hyphenated DCs are used when an unlisted condi-
tion requires rating by analogy and when a rating
under one DC requires reference to another DC to
fully explain the rating. Here, VA rated Mr. Van-
cott’s condition under DC 5020 as “[s]ynovistis,”
which is “inflammation of the synoval membrane”
that surrounds a joint (in this case, the knee joint)
and that “is usually painful [] on motion” and “char-
acterized by fluctuating swelling.” . . . Because
synovitis was rated “on limitation of motion of af-
fected parts, as arthritis, degenerative,” VA turned
to the DC for limitation of flexion in the leg, DC
5260 (making up the other part of his hyphenated
DC) and the DC for degenerative arthritis, DC
5003.
Appx3 (internal citations omitted).
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VANCOTT v. COLLINS 4
cian’s June 2011 examination, concluding “[t]here was ob-
jective evidence of pain on motion, but no additional func-
tional loss after repeated movement. Due to decreased and
painful motion, a 10 percent evaluation is assigned.”
Appx28. In other words, Mr. Vancott’s left knee limitation
of motion was appropriately rated at 10% under DC 5003
“based on the objective results demonstrated” on examina-
tion: the “intermittent pain that is associated with swell-
ing.” Id. Mr. Vancott did not appeal the RO’s decision, so
it became final.
In May 2020, Mr. Vancott filed a motion to revise the
2012 rating decision based on his contention that the RO
had committed CUE. Mr. Vancott argued that the RO
clearly and unmistakably erred when it failed to assign
him, in addition to the 10% rating under DC 5003, an ad-
ditional 10% rating under DC 5259 for “symptomatic resid-
uals” of orthopedic surgery. Appx34. After the RO denied
the CUE claim, Mr. Vancott appealed to the Board of Vet-
erans Appeals (“Board”).
The Board affirmed the RO. It explained that while
“separate ratings for the knee are permitted,” this is only
“if the separate ratings are based on manifestations of the
[claimant’s] disability that are separate and distinct from
manifestations for which the [claimant] has already been
rated.” Appx47. The Board determined that Mr. Vancott
qualified for his DC 5003 rating based on “objective find-
ings [of] swelling, painful motion, and decreased motion,”
so an award under DC 5929 based on those same manifes-
tations would “constitute improper pyramiding” in viola-
tion of 38 C.F.R. § 4.14. Appx48. Thus, there was no CUE.
Mr. Vancott appealed to the Veterans Court, which af-
firmed the Board. Echoing the Board, the Veterans Court
observed that “separate ratings were available [to Mr. Van-
cott] in 2012 [but only] so long as those ratings did not vio-
late the rule against pyramiding.” Appx6 (citing 38 C.F.R.
§ 4.14). It reasoned that “DC 5003 is clear – to earn a 10%
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VANCOTT v. COLLINS 5
rating, a veteran must show objective findings of swelling,
spasms, or other satisfactory evidence of painful motion,”
and, here, “the RO assigned [Mr. Vancott] a rating because
his limitation of motion . . . was objectively confirmed by
his pain and swelling.” Appx6-7. “[B]ecause symptoms like
pain and swelling cannot be compensated twice, . . . pain
and swelling could not be rated a second time under DC
5259.” Appx7.
Mr. Vancott timely appealed the judgment of the Vet-
erans Court. We have jurisdiction under 38 U.S.C.
§ 7292(c).
II
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See Goodman v. Shulkin, 870
F.3d 1383, 1385 (Fed. Cir. 2017). Pursuant to 38 U.S.C.
§ 7292(d)(2), we “may not review (A) a challenge to a fac-
tual determination, or (B) a challenge to a law or regulation
as applied to the facts of a particular case.” “We may set
aside the Veterans Court’s interpretation of a regulation
only if it is unconstitutional, violative of statute, procedur-
ally defective, or otherwise arbitrary.” Blubaugh v.
McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014) (citing 38
U.S.C. § 7292(d)(1)).
Where, as here, a veteran claims that there has been a
clear and unmistakable error, he must identify an error
(1) “based on the record and the law that existed at the time
of the prior adjudication in question,” (2) that is “undebat-
able,” and (3) “would have manifestly changed the outcome
at the time it was made.” George v. McDonough, 991 F.3d
1227, 1233 (Fed. Cir. 2021) (internal quotation marks and
emphasis omitted), aff’d, 596 U.S. 740 (2022). The claim-
ant bears the burden of proving each of these CUE ele-
ments. See Pierce v. Principi, 240 F.3d 1348, 1355 (Fed.
Cir. 2001).
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VANCOTT v. COLLINS 6
III
Mr. Vancott asserts that the VA committed clear and
unmistakable error when it failed to assign him an addi-
tional 10% disability rating for symptomatic residuals of
his orthopedic surgery, pursuant to DC 5259. In Mr. Van-
cott’s view, such an additional rating would not violate the
rule against “pyramiding” because DC 5003 – under which
the limited range of motion in his left knee was already
compensated at a 10% rating – does not “require[] more
than actual limited flexion to provide for a rating.” Reply
Br. at 1; see also Open. Br. at 28 (“[I]f there is actually lim-
ited motion then we don’t need other objective findings to
confirm the obvious.”). We have jurisdiction to review this
question of law. See Szemraj v. Principi, 357 F.3d 1370,
1375 (Fed. Cir. 2004) (“We do have jurisdiction to deter-
mine whether the legal requirement of the statute or regu-
lation has been correctly interpreted in a particular context
where the relevant facts are not in dispute.”). Exercising
that jurisdiction, we conclude that Mr. Vancott has not
shown an “undebatable” error in the 2012 rating decision.
Thus, we affirm the Veterans Court’s decision finding no
CUE.
The regulation at issue here, 38 C.F.R. § 4.71a DC
5003, reproduced above, consists of two pertinent sen-
tences: the first makes “limitation of motion” compensable,
while the second requires “objective evidence” demonstrat-
ing that limited range of motion. The Veterans Court de-
termined that “DC 5003 does not serve as a basis to award
any limitation of motion,” but, rather, only limitation of
motion that is confirmed objectively. Appx6.
As with statutes, regulations are “to be so construed
that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.” TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks
omitted); see also Sullivan v. McDonald, 815 F.3d 786, 790
(Fed. Cir. 2016) (applying this canon to regulations). Mr.
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VANCOTT v. COLLINS 7
Vancott’s interpretation of DC 5003 appears to run afoul of
this canon against surplusage. By allowing limited range
of motion to serve as the objective confirmation of limited
range of motion, it is not clear that the second sentence of
DC 5003 is anything but superfluous.
But we need not decide whether Mr. Vancott could
have been rated under DC 5003 without regard to pain and
swelling. Having in fact been rated under DC 5003 based
on pain and swelling, Appx28, he cannot receive another
rating for the same symptoms under DC 5259. The VA was
correct in rating Mr. Vancott’s left knee disability at 10%
under DC 5003 and not awarding him any further rating
under DC 5259. The examining physician, and therefore
the RO, Board, and Veterans Court, relied on Mr. Vancott’s
reported pain and swelling as the objective evidence con-
firming his limited range of motion. Providing him any fur-
ther compensation based on that same left knee pain or
swelling would constitute improper pyramiding. See 38
C.F.R. § 4.14 (“The evaluation of the same disability under
various diagnoses is to be avoided. . . . Both the use of man-
ifestations not resulting from service-connected disease or
injury in establishing the service-connected evaluation,
and the evaluation of the same manifestation under differ-
ent diagnoses are to be avoided.”); see also Amberman v.
Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (“[T]wo de-
fined diagnoses constitute the same disability for purposes
of section 4.14 if they have overlapping symptomology.”).
Thus, we agree with the Veterans Court that “the Board
was not arbitrary or capricious in concluding that it was
not undebatable that separate ratings were available in
2012” for Mr. Vancott’s limited range of motion and his
pain and swelling. Appx6.
Mr. Vancott’s arguments for a contrary conclusion are
unavailing. He asks us to apply the pro-veteran canon, and
defer to his interpretation of DC 5003’s “ambiguous” re-
quirement for objective evidence in addition to the limita-
tion of motion. See, e.g., Open. Br. at 10-13. But we need
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VANCOTT v. COLLINS 8
not decide this interpretative issue because, as already
noted, the examining physician did in fact rely on pain and
swelling in diagnosing Mr. Vancott, making that pain and
swelling part of the basis for the RO’s rating under DC
5003. Appx28. Thus, Mr. Vancott cannot receive another
rating for the same symptoms under DC 5259 without run-
ning afoul of the rule against pyramiding.
Nor do 38 C.F.R. § 4.25(b) or 38 U.S.C. § 1110 – which
Mr. Vancott asserts permit compensation for multiple dis-
abilities have any application, as Mr. Vancott was diag-
nosed with just a single disability (left knee medial
meniscus tear post surgical repair). Mr. Vancott also notes
in passing that the VA has a duty to maximize benefits,
Open Br. at 4, but he makes no cognizable argument that
he failed to receive the maximum benefits for that single
disability.
IV
We have considered Mr. Vancott’s additional argu-
ments and find them unpersuasive. Accordingly, for the
reasons given above, the judgment of the Veterans Court is
affirmed.
AFFIRMED
COSTS
No costs.
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