Slaughter: CAVC's prejudicial error analysis was too rigid; "combined nerve injuries" refers to service-connected nerves only

Slaughter v. McDonald, 29 F.4th 1351 (Fed. Circ. 2022)

HELD: The burden of proving prejudicial error is not an “onerous” one and the CAVC needs to look at the circumstances of the case to determine prejudice. “combined nerve injuries” under 38 C.F.R. § 4.124A refers to service-connected conditions only.

Summary: Veteran was service connected for ulnar nerve under 38 C.F.R. § 4.124, DC 8516. He later developed median nerve issues. VA examiner couldn’t distinguish symptoms related to the individual nerves - and VA increased his rating to 40% based on the symptoms of both nerve issues. Veteran argued for a higher rating under DC 8512 for combination of nerve injuries based on a note in § 4.124a regarding “combined nerve injuries.”

The Federal Circuit held that the phrase “combined nerve injuries” in the note unambiguously referred to service-connected conditions, relying on 38 C.F.R. § 4.1 and VA’s treatment of service-connected and nonservice-connected conditions in other regulations.

Regarding the CAVC’S prejudicial error analysis, the Federal Circuit found that the CAVC “applied too rigid of a prejudicial error standard and placed too heavy a burden on Mr. Slaughter to show prejudice.” While the burden is on the claimant, it’s not an “onerous” one - and the Court should look “to the circumstances of the case to see if the alleged error was harmful.” Prejudice can be shown if the error affected or could have affected the outcome.