George W. Breniser v. Eric K. Shinseki
25 Vet. App. 64
Vet. App.2011Background
- George W. Breniser, a U.S. Army veteran, seeks a higher rate of special monthly compensation (SMC) based on aid and attendance or housebound status while already in receipt of SMC for loss of use of both feet (38 U.S.C. § 1114(1)).
- In July 2008 the RO granted SMC for loss of use of both feet and other benefits; the Board denied additional SMC under § 1114(o) (aid and attendance) or § 1114(s) (housebound).
- The Board held that, under § 1114(o), two entitlements cannot be based on the same disability; the need for aid and attendance arising from the feet could not support a separate § 1114(o) award.
- The appellant argued that § 1114(o) allows two rates for two conditions, including the feet and the need for aid and attendance, and that § 3.350(e)(3) implements this separation.
- During appeal, Breniser received an award of higher SMC under § 1114(p) (intermediate or full step) based on additional service-connected hearing loss; the case was remanded for consideration of § 1114(p).
- The court’s decision remands for consideration of § 1114(p) and affirms in part the Board’s denial under § 1114(o) consistent with its reasoning on separate disabilities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can Breniser obtain § 1114(o) maximum SMC when aid/attendance arises from the same disability driving § 1114(1)? | Breniser argues that § 1114(o) allows two entitlements from separate conditions (feet loss and aid/attendance). | The Secretary argues § 1114(o) requires separate and distinct disabilities; cannot double-count the same disability, so aid/attendance tied to the feet is not a separate condition. | Ambiguous statute; agency regulation permissible; no second § 1114(o) award when aid/attendance stems from the same disability. |
| Is § 3.350(e)(3) a valid construction of § 1114(o)'s 'no condition being considered twice' requirement? | Argues § 3.350(e)(3) improperly construes 'condition' and blocks rightful entitlement. | Argues § 3.350(e)(3) reasonably requires separate disabilities for § 1114(o) entitlement and is consistent with Congress's intent. | Regulation is reasonable under Chevron; 'conditions' means separate and distinct disabilities; § 3.350(e)(3) valid. |
| Did the Board err by not considering § 1114(p) potential entitlement? | Breniser asserts § 1114(p) could provide an intermediate or full higher rate based on overall disability exceeding the current rate. | Argues § 3.350(f) lists enumerated instances and § 1114(p) not applicable here; no need to remand. | Remand appropriate to address § 1114(p) eligibility; the record did not clearly determine whether § 1114(p) applies. |
| Should a secondary service-connection theory (stroke aggravated by cold injury) be considered on remand? | Requests remand to determine if non-service-connected stroke, aggravated by service-connected cold injury, creates a second entitling condition under § 1114(o). | Records do not reasonably raise a secondary service-connection claim; no evidence of intent to file such a claim. | Court declines remand for secondary condition; no reasonable raise of secondary service connection found; issue not present. |
Key Cases Cited
- Brown v. Gardner, 513 U.S. 115 (1994) (statutory interpretation; agency deference to longstanding interpretation under Chevron)
- Lorillard v. Pons, 434 U.S. 575 (1978) (statutory interpretation; plain meaning and structure analysis)
- Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (agency deference and statutory interpretation in VA benefits context)
- Schafrath v. Derwinski, 1 Vet.App. 589 (1991) (prescribed duty to discuss all potentially applicable benefits on remand)
- Allen v. Brown, 7 Vet.App. 439 (1995) (secondary service-connection concepts and remand analysis)
- Howell v. Nicholson, 19 Vet.App. 535 (2006) (plain language interpretation and consequences for SMC decisions)