  United States Court of Appeals
      for the Federal Circuit
                 ______________________

              BIRDEYE L. MIDDLETON,
                 Claimant-Appellant,

                            v.

 ERIC K. SHINSEKI, Secretary of Veterans Affairs,
              Respondent-Appellee.
             ______________________

                       2013-7014
                 ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4222, Judge Alan G. Lance Sr.
                ______________________

   ON PETITION FOR PANEL REHEARING AND
            REHEARING EN BANC
             ______________________

    EINAR STOLE, Covington & Burling LLP, of Washing-
ton, DC, filed a petition for panel rehearing and rehearing
en banc for claimant-appellant. With him on the petition
was MICHAEL S. SAWYER. Of counsel on the petition were
BARTON F. STICHMAN and KATY SCHUMAN CLEMENS,
National Veterans Legal Services Program, of Washing-
ton, DC.

    MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, filed a response to
the petition for respondent-appellee. On the response
2                                      MIDDLETON   v. SHINSEKI



were STUART F. DELERY, Assistant Attorney General,
BRYANT G. SNEE, Acting Director, and SCOTT D. AUSTIN,
Assistant Director. Of counsel on the response were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
and MEGHAN ALPHONSO, Attorney, United States De-
partment of Veterans Affairs, of Washington, DC.

    DAVID J. LEWIS, Sidley Austin LLP, of Washington,
DC, for amici curiae The American Legion and Vietnam
Veterans of America. Of counsel on the brief was PHILIP
B. ONDERDONK, The American Legion, of Indianapolis,
Indiana, for amicus curiae The American Legion.
                 ______________________
    Before RADER, Chief Judge, NEWMAN, PLAGER 1, LOURIE,
     DYK, PROST, MOORE, REYNA, WALLACH, TARANTO, and
                   CHEN, Circuit Judges. 2
 NEWMAN, Circuit Judge, with whom WALLACH, Circuit
Judge, joins, dissenting from the denial of the petition for
                    rehearing en banc.
    PLAGER, Circuit Judge, dissenting from the denial of the
                 petition for panel rehearing.
PER CURIAM.
                          ORDER
     A combined petition for panel rehearing and rehear-
ing en banc was filed by claimant-appellant, and a re-
sponse thereto was invited by the court and filed by
respondent-appellee. The petition for rehearing was
referred to the panel that heard the appeal, and thereaf-
ter the petition for rehearing en banc and response were


      1 Circuit Judge Plager participated only in the deci-
sion on the petition for panel rehearing.
     2  Circuit Judges O’Malley and Hughes did not par-
ticipate.
MIDDLETON   v. SHINSEKI                                  3



referred to the circuit judges who are authorized to re-
quest a poll of whether to rehear the appeal en banc. A
poll was requested, taken, and failed.

   Upon consideration thereof,

   IT IS ORDERED THAT:

   (1) The petition of claimant-appellant for panel re-
hearing is denied.

    (2) The petition of claimant-appellant for rehearing
en banc is denied.

    (3) The mandate of the court will issue on February
10, 2014.
                                 FOR THE COURT

February 3, 2014                 /s/ Daniel E. O’Toole
       Date                      Daniel E. O’Toole
                                 Clerk of Court
  United States Court of Appeals
      for the Federal Circuit
                  ______________________

              BIRDEYE L. MIDDLETON,
                 Claimant-Appellant,

                             v.

 ERIC K. SHINSEKI, Secretary of Veterans Affairs,
              Respondent-Appellee.
             ______________________

                        2013-7014
                  ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4222, Judge Alan G. Lance Sr.
                ______________________

NEWMAN, Circuit Judge, dissenting from denial of the
petition for rehearing en banc.
    By decision issued August 15, 2013, a split panel of
this court announced a new rule for the assessment of
disability ratings under the Department of Veterans
Affairs Schedule for Rating Disabilities. According to this
new rule, “when a veteran does not satisfy all of the
required criteria of the higher rating but does satisfy all of
the criteria of the lower rating,” the veteran is only enti-
tled to receive the lower rating. The court thus discards
the flexibility that is expressly provided in the regula-
tions.
   This new judge-made rule was not presented by the
government on this appeal. It contravenes the policy of
2                                     MIDDLETON   v. SHINSEKI



the Schedule’s General Policy in Rating, and is incon-
sistent with VA regulation 38 C.F.R. §4.7, which requires
determination of which rating “the disability picture more
nearly approximates”:
    §4.7 Where there is a question as to which of two
    evaluations shall be applied, the higher evalua-
    tion will be assigned if the disability picture more
    nearly approximates the criteria required for that
    rating. Otherwise, the lower rating will be as-
    signed.
Instead, the court discards the flexibility of “more nearly
approximates” in favor of a bright-line rule, the panel
majority holding that:
    [T]here is no question as to which evaluation shall
    be applied when a veteran does not satisfy all of
    the required criteria of the higher rating but does
    satisfy all of the criteria of the lower rating.
Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir.
2013) (emphasis added). As here illustrated, the absence
of even one of the listed criteria leaves “no question” that
the lower rating must be applied. This judicial revision
negates not only the letter but also the policy of the
regulations.
    Section 4.7 directs the rater to the veteran’s “disabil-
ity picture” for application of the Schedule for Rating
Disabilities. The Schedule lists relevant criteria and
assigns lower ratings to lesser impairments, and higher
ratings when more severe criteria are present. The
criteria are medically-derived guidelines, not rules of law,
for §4.7 recognizes that precise correlations are not al-
ways present. The court’s new requirement of the lower
rating if all of the criteria listed for the higher rating are
not met eliminates the discretion, indeed the obligation, of
the rater to consider the veteran’s “disability picture”.
MIDDLETON   v. SHINSEKI                                    3



     The panel majority’s interpretation contradicts the
foundational policies of veterans law. For example, §4.1 of
the General Policy in Rating states that the “rating
schedule is primarily a guide in the evaluation of disabil-
ity,” and §4.21 recognizes that “atypical instances” will not
exhibit all of the listed criteria:
    §4.21 In view of the number of atypical instances
    it is not expected, especially with more fully de-
    scribed grades of disabilities, that all cases will
    show all the findings specified. Findings suffi-
    ciently characteristic to identify the disease and
    the disability therefrom, and above all, coordina-
    tion of rating with impairment of function will,
    however, be expected in all instances.
Section 4.3 of the General Policy requires that reasonable
doubt “be resolved in favor of the claimant”:
    §4.3 It is the defined and consistently applied pol-
    icy of the Department of Veterans Affairs to ad-
    minister the law under a broad interpretation,
    consistent, however, with the facts shown in every
    case. When after careful consideration of all pro-
    curable and assembled data, a reasonable doubt
    arises regarding the degree of disability such
    doubt will be resolved in favor of the claimant.
    The regulations require applying disability ratings
flexibly and in favor of the veteran. The court’s new
interpretation imposes a rigorous rule that does not
accommodate individual, case-specific variation.        The
General Policy’s principles require greater flexibility, as
recently observed in Vazquez-Claudio v. Shinseki. 713
F.3d 112, 115-16 (Fed. Cir. 2013) (“[W]e must read the
disputed language in the context of the entire regulation
as well as other related regulatory sections in order to
determine the language’s plain meaning. . . . Entitlement
to a 70 percent disability rating requires sufficient symp-
toms of the kind listed in the 70 percent requirements, or
4                                    MIDDLETON   v. SHINSEKI



others of similar severity, frequency or duration . . . .”).
The court in Vazquez-Claudio focused on the overall
“occupational and social impairment with deficiencies in
most areas such as those enumerated in the regulation,”
id. at 118, rather than the rule now adopted where the
absence of even one of the listed criteria will defeat the
higher rating.
    This new ruling thus conflicts with precedent as well
as with statute, policy, and regulation. From the court’s
denial of en banc review, I respectfully dissent.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

              BIRDEYE L. MIDDLETON,
                 Claimant-Appellant,

                            v.

 ERIC K. SHINSEKI, Secretary of Veterans Affairs,
              Respondent-Appellee.
             ______________________

                       2013-7014
                 ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4222, Judge Alan G. Lance Sr.
                ______________________

PLAGER, Circuit Judge, dissenting from denial of the
petition for panel rehearing.
    For the record, I dissent from the failure of the panel
to self-correct itself regarding the clearly erroneous posi-
tion taken in the majority opinion in this case. In the
interest of brevity, I adopt as the explanation for my
dissent from denial of the petition for panel rehearing, in
addition to my original dissent, Middleton v. Shinseki,
727 F.3d 1172 (Plager, J., dissenting), the opinion of
Judge Newman in her accompanying dissent from the
denial of the petition for rehearing en banc. 1


   1 The Chief Judge advises that the rule in this circuit,
recently pronounced by a majority of the judges of the
2                                    MIDDLETON   v. SHINSEKI




court in regular active service, is that judges in senior
status, of which I am one, are prohibited from joining
another judge’s dissent from a denial of en banc, or au-
thoring their own dissent expressing on record a criticism
of the judges in regular active service for the failure to
take a case en banc. This apparently is the rule even in
this case, though as a member of the original panel I am
expressly authorized by law to have sat on the en banc
panel if the court had agreed to have one, see 28 U.S.C. §
46(c), so that the failure to take the case en banc has
denied me an opportunity to try to correct what I consider
to be a miscarriage of justice. However, my compliance
with this rule, prohibiting circuit judges, because they are
in senior status, from expressing an opinion on this aspect
of the decisional work of the court, should not be taken as
agreement with this rule, its purpose, effect, or for that
matter its constitutionality.
