Spicer v. McDonough

61 F.4th 1360 (Fed. Cir. 2023), decided March 8, 2023. Court of Appeals for the Federal Circuit, No. 2022-1239, Circuit Judge Stoll. Precedential. Vacating Spicer v. McDonough, 34 Vet. App. 310 (2021). Vacated and remanded.

This is the most consequential of the six, and the one most likely to be missing from anything written before 2023. It held a VA regulation unlawful.

The theory the VA rejected

Mr. Spicer had service-connected leukemia. He had arthritis in both knees that his leukemia did not cause. His argument was not that it did. It was that the treatment for his leukemia prevented him from having the surgery that would have treated the arthritis — so his knees were worse than they would have been, and the service-connected disease was the reason.

The Board denied it. A divided Veterans Court panel affirmed, reading "resulting from" in 38 U.S.C. §1110 to carry an etiological component: unless the arthritis would not exist without the cancer, there was "no actual but-for causation." It also worried that Mr. Spicer's reading would make VA compensate the natural progression of conditions that arose independently of service, and would require speculation.

What the Federal Circuit held

Both. The court's analysis "begins and ends with the statutory text."

On §1110. "Resulting from" means but-for causation, which the parties agreed on — and but-for causation is broad, "undisputedly broader than proximate cause." It covers multi-link chains and it covers inaction: the court's own examples are failing to shovel snow, and failing to signal a turn. Congress knew how to narrow it and did so elsewhere: §1153 expressly excludes increases due to "natural progress," and §1110 contains no such qualifier. "We must give meaning to this difference."

The holding, in the court's words:

"§1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability. This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Stated another way, §1110 provides for compensation for a worsening of functionality—whether through an inability to treat or a more direct, etiological cause."

On the regulation. One sentence, at the end: "To the extent that the VA also applied 38 C.F.R. §3.310(b) to reject Mr. Spicer's theory of compensation, that regulation is unlawful as inconsistent with 38 U.S.C. §1110."

The court was unimpressed by the speculation objection. "Describing a but-for world necessarily requires imagining that which did not occur," and VA already does this routinely — under §1151 it assesses what would have happened but for medical negligence, including a failure to perform a corrective surgery, and it regularly weighs the ameliorative effect of medication in setting ratings.

What this means in practice

Two things, and the second is the trap.

One. If a service-connected condition made it impossible to get treatment for another condition — surgery you could not have, a medication you could not take, physical therapy you could not do — the resulting worsening is a compensable theory. It does not require that the service-connected condition caused the other condition at all.

Two. §3.310(b) has not been amended. VA's last amendment to §3.310 was in 2013. The text on eCFR today still reads as though the baseline-and-natural-progress arithmetic is the whole of it. A veteran reading the regulation, or a decision letter quoting it, will find no hint that a court held it unlawful in part in 2023. That is not unusual and it is not a mistake on anyone's part — courts strike down regulatory applications all the time without the text changing — but it means the regulation alone is not a safe guide to what the law requires.

The scope is "to the extent" of the inconsistency. The court did not erase §3.310(b); it held that VA cannot use it to defeat a but-for worsening theory that §1110 covers.

The two Spicers

There are two published decisions with this name in this case, and they reach opposite results.

• Spicer v. McDonough, 34 Vet. App. 310 (2021) — Veterans Court, Judge Toth, affirming the Board. Vacated by the decision above. Do not cite it as law.
• Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) — the one that governs.

If a source cites "Spicer" for the proposition that §1110 requires an etiological link, it is citing the vacated one.

Finding the opinion

The Federal Circuit's official PDF: 22-1239.OPINION.3-8-2023_2091586.pdf. Published at 61 F.4th 1360. The vacated Veterans Court opinion is at SpicerLD_18-4489.pdf.

Reviewed October 6, 2026