Bradley v. PeakeBradley v. Peake
- Reporters:
- , ,
- Before:
- Kasold, Moorman, Davis
Vietnam War veteran Gary D. Bradley appeals through counsel two separate March 3, 2006, decisions of the Board of Veterans’ Appeals (Board) that (1) determined that there was no clear and unmistakable error (CUE) in an August 1994 regional office (RO) rating decision assigning an effective date of December 16, 1987, for the grant of a separate compensable rating for shell fragment wounds of the right knee and the left axillary/shoulder area; (2) denied an earlier effective date of November 21, 1969, for residual scarring of the left buttock, the right buttock, the right thigh, the right wrist, and injuries to muscle group (MG) XIII for the left thigh, MG VII for the distal left forearm, MG VII for the right lower arm/wrist, MG XII for the left ankle, MG II for the left shoulder/axillary area, MG XXI for the left chest, and MG XI for the right lower leg; (3) denied an earlier effective date of June 8, 1992, for residual scarring of the right elbow, the left elbow, left forearm, right inner leg, left ankle, and left lower chest; (4) denied a disability compensation rating in excess of 10% for residual scarring of the right buttock, left buttock, right thigh, left forearm/wrist, left thigh, left lower leg/ankle/left foot, right lower leg, right knee area, left lateral chest wall, left shoulder/axillary area, and right lower arm/wrist; (5) denied a disability compensation rating in excess of 10% for injuries to MG XII right thigh, MG X left foot, MG XIII left thigh, MG VII left distal forearm, MG VII right wrist, MG XII left ankle, MG XXI left chest, and MG XI right lower leg; (6) denied a disability compensation rating in excess of 20% for injuries to MG XVII for the right buttock, MG XVII for the left buttock, and MG II for the left shoulder/axillary area; (7) denied entitlement to special monthly compensation (SMC); and (8) denied entitlement to service connection for chronic pain syndrome. For the reasons stated below, the decision of the Board will be affirmed in part, and set aside in part, reversed in part, and several matters remanded for further adjudication.
Mr. Bradley served on active duty with the U.S. Army from February 1968 to November 1969, including service in Vietnam. On August 29, 1969, he sustained multiple shell fragment wounds (SFWs) to his chest, legs, arms, and his right ear from a “booby trap” explosion. Record (R.) at 158, 174. As a result of these wounds, Mr. Bradley received a Purple Heart. R. at 83.
In December 1969, Mr. Bradley applied for compensation and pension for “M.F.W. [multiple fragment wounds] both LEGS, both ARMS [,] left chest & a peice [sic] of Rt. Lobe of ear taken off 8-28-69.” R. at 191-92. Based upon skin and orthopedic examinations in 1970, a November 1970 regional office (RO) decision awarded Mr. Bradley a 10% disability compensation rating for SFWs of his left ankle and foot, a 10% disability compensation rating for tender and painful scars of his left thigh, with a retained foreign body, and a noncompensable rating for multiple scars of both legs, both arms, and his left lower chest, effective from November 21, 1969. R. at 219-20. Mr. Bradley underwent additional medical examinations in August and September 1971. R. at 247, 271-72. After these examinations, the Secretary issued a September 1971 rating decision that determined that the additional examinations did not warrant a change in the appellant‘s rating. R. at 250. Subsequent rating decisions issued in 1976 and 1977 also confirmed the initial disability ratings. (R. at 328, 348, 367, 373, 397).
In July 1983, the RO continued the ratings for the initial service-connected injuries. It also awarded Mr. Bradley a 20% disability compensation rating for SFWs to his right buttock, a 20% disability rating for his left buttock, and a 10% disability rating for his right quadriceps, all effective March 25, 1983. Mr. Bradley also received a 30% disability compensation rating for post-traumatic stress disorder (PTSD), effective March 25, 1983. In August 1985, the RO assigned Mr. Bradley a single 10% disability compensation rating for multiple scars of both legs, both arms, and his left lower chest, effective from August 1984. In June 1991, the RO increased Mr. Bradley‘s disability rating for PTSD from 30% to 70% and awarded him total disability for individual unemployability (TDIU), effective December 1987. A Board decision in January 1997 changed the effective date from December 1987 to March 25, 1983, for both PTSD and TDIU. Additionally, the 1997 Board decision determined that there was no CUE in the rating decisions of November 1971, June 1971, September 1971, April 1973, February 1976, December 1976, February 1982, and November 1982, for the ratings assigned to Mr. Bradley‘s service-connected injuries. In August 1994, Mr. Bradley received additional disability compensation awards of 10% for residuals of SFWs to his right knee, and 10% for a gunshot wound to his left shoulder, both effective December 1987.
In May 1999, Mr. Bradley filed a Notice of Disagreement (NOD) to the January 1999 RO decision that reopened but denied an increased rating claim for multiple scar injuries to his left elbow, left forearm, right leg, right arm, left leg and left lower chest. Subsequently, an October 1999 Statement of the Case (SOC) awarded separate 10% disability compensation ratings for scars to Mr. Bradley‘s lower chest, left ankle, right elbow, right inner leg, left forearm, and left elbow, with an effective date of May 31, 1994.1 In January 2000,
Mr. Bradley appealed to the Board the effective dates and disability compensation ratings for the multiple scarring and muscle injury awards, as well as the denial of SMC and service connection for chronic pain syndrome. The Board issued two decisions on March 3, 2006, denying all his claims. On appeal to the Court, Mr. Bradley argues that the Board erred by: (A) considering and deciding a request for revision of the August 1994 RO decision based on CUE that Mr. Bradley asserts he never made; (B) not assigning an earlier effective date for all his service-connected scars and muscle injuries; (C) not awarding a separate disability compensation rating for each scar injury and each muscle injury; (D) not awarding SMC; (E) denying service connection for his chronic pain syndrome; and (F) providing an inadequate statement of reasons or bases for the denial of service connection for his chronic pain syndrome.
The Secretary suggests that a partial remand is in order so that he can evaluate whether Mr. Bradley may be awarded a separate disability compensation rating for each separate scar, but refutes the assignment of separate ratings for his muscle injuries, and further argues that the remainder of the Board‘s findings are plausible and should be affirmed.
II. ANALYSIS
A. CUE in the August 1994 RO Decision
Mr. Bradley argues that the Board erred in addressing whether there was CUE in the August 1994 RO decision that assigned December 16, 1987, as the effective date for service connection for his right knee and left axillary/shoulder area, because he never submitted a request for revision based on CUE. The record on appeal contains no specific request by Mr.
Nevertheless, without explanation, a March 2005 RO decision addressed the allegation of CUE in the August 1994 RO decision. On October 18, 2005, Mr. Bradley filed an NOD to this decision denying CUE in the August 1994 RO decision. R. at 354. However, no SOC was issued in response to Mr. Bradley‘s NOD, although an SOC dated June 21, 2005, addresses the issue of entitlement of an earlier effective date based upon “difference of opinion” citing
In his brief, the Secretary argues that Mr. Bradley abandoned his administrative appeal of CUE in the August 1994 RO decision by not specifically arguing it on appeal. However, at oral argument, the Secretary contended that Mr. Bradley‘s Substantive Appeal, which argues that he was “entitled to revision of the prior decisions of the VA which failed to note and award disability compensation for all of the disabilities suffered” upon discharge from service, (R. at 3349) (emphasis in original), should be read broadly to constitute his presentment of the issue on appeal. The Secretary could not identify, however, Mr. Bradley‘s arguments made on this matter to the RO or the Board.
Once a claimant files a timely NOD to an RO decision and a disagreement still exists after further development, the Secretary must prepare an SOC.
Succinctly stated, the procedural posture of this case is confusing and the Board‘s statement of reasons or bases inadequately addresses this matter, frustrating judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board‘s statement “must be adequate to enable a claimant to understand the precise basis for the Board‘s decision, as well as to facilitate review in this Court“). Accordingly, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board has incorrectly ap
B. Earlier Effective Date
1. Initial Claim
Mr. Bradley argues that because each and every injury existed upon his discharge from service, the effective date for all his service-connected scars and muscle injuries should be November 21, 1969, the date of his original service-connection claim. He contends that the disability ratings for scars and injuries awarded after November 1970 constituted part of his initial claim for compensation, and were not the result of new claims for increased compensation based upon his condition worsening. His argument is not supported by the record or the law.
The November 1970 RO decision addressed his initial claim for injuries to both legs, both arms, right earlobe, and left chest, and awarded a 10% disability rating for painful scars to his left thigh with a retained foreign body, and a 10% disability compensation rating for shell fragment wounds to his left ankle and foot. This RO decision also awarded a noncompensable rating for multiple scars to both legs, both arms, and the left lower chest, and noted healed scars to his lower extremities specifically refering to a November 1969 examination. In sum, the 1970 RO decision addressed Mr. Bradley‘s November 1969 claim for disabilities arising from the booby trap explosion sufficiently for him to deduce that his claim had been adjudicated. Compare Ingram v. Nicholson, 21 Vet.App. 232, 247 (2007) (holding that “an RO decision may constitute an adjudication of a claim where the RO decision addresses the claim in a manner sufficient for a claimant to deduce that the claim was adjudicated“) with Deshotel v. Nicholson, 457 F.3d 1258, 1261 (2006) (“Where the veteran files more than one claim with the RO at the same time, and the RO‘s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.“). Mr. Bradley could have appealed the November 1970 decision, but he did not, and it became final, subject only to attacks based on CUE with regard to its effective date. See
2. Revision Under 38 C.F.R. § 3.105(b)
Mr. Bradley alternatively argues that RO decisions in June 1983, August 1985, June 1994, October 1999, July 2003, and January 2005, which awarded disability compensation ratings for additional scars and muscle injuries, demonstrated a difference of opinion among the ROs, and warranted revision of the November 1970 decision to reflect the additional compensation ratings as having an effective date of November 1970. In support of his argument, Mr. Bradley relies on
Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under § 3.2600 without being recommended to Central Office.
When interpreting a statute or regulation, the “‘starting point is its language.‘” Otero-Castro v. Principi, 16 Vet.App. 375, 380 (2002) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993)); see also Black & Decker Corp. v. Comm‘r of Internal Revenue, 986 F.2d 60, 65 (4th Cir.1993) (“Regulations, like statutes, are interpreted according to the canons of construction.“). “Where a statute‘s language is plain, and its meaning clear, no room exists for construction. There is nothing to construe.” See Gardner v. Derwinski, 1 Vet.App. 584, 587 (1991), aff‘d sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff‘d, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). The plain language of the regulation states that it is the adjudicative agency that must believe that a revision is warranted, based upon a difference of opinion between the adjudicating authorities. Moreover, the decision whether to revise a prior decision under
Accordingly, the fact that Mr. Bradley has a difference of opinion with the 1970 RO and believes it should be revised is of no consequence. Further, Mr. Bradley cites to nothing in the record to support his assertion that the adjudicating authorities in this instance believed a revision of a prior decision was warranted and simply failed to refer the matter to the Central Office, as required by
3. Informal Claims
Mr. Bradley argues, again alternatively, that the medical examinations of August and September 1971 constituted informal claims for increased disability ratings for all the scars and muscle injuries identified by the medical evidence, and that the Secretary should have ascertained if his disabilities increased within one year
Moreover, although Mr. Bradley filed an NOD to this decision and an SOC issued in October 1971, the record on appeal does not reflect that he filed a Substantive Appeal to the September 1971 RO decision, and it became final. See
C. Separate Individual Ratings for Each Scar and Muscle Injury
1. Individual Ratings for Each Scar
The parties agree that remand is warranted so that the Board can address whether separate disability ratings for individual scars are appropriate under
Mr. Bradley relies on Jones, supra, to support his argument that each muscle injury should be assigned a separate rating, but his argument is misplaced. Although the Court in Jones remanded the issue of multiple ratings for scars, it noted, inter alia, that muscle injuries are evaluated pursuant to
D. Chronic Pain Syndrome
The record supports Mr. Bradley‘s argument that the Board failed to provide an adequate statement of reasons or bases with regard to his chronic pain syndrome. The Board stated in its conclusions of law that Mr. Bradley‘s chronic pain syndrome “was not incurred or aggravated by the veteran‘s period of active duty.” R. at 6. However, the Board also found that a January 2003 VA examination diagnosed him “with chronic pain syndrome as directly related to his already service-connected residual scars and SFW.” R. at 33. Yet, the Board provided no explanation for, or reconciliation of, the obvious inconsistency in these two statements, frustrating judicial review. See Allday, 7 Vet.App. at 527 (holding that the Board‘s statement “must be adequate to enable a claimant to understand the precise basis for the Board‘s decision, as well as facilitate informed review in this Court“).
Additionally, the rating schedule provides ratings for a pain disorder under a mental disorders section, see
Mr. Bradley also argues that the Board failed to consider secondary service connection for his chronic pain syndrome, however, this argument is mooted by virtue of the remand due to the Board‘s inadequate statement of reasons or bases with regard to his chronic pain syndrome. Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of claim under one theory moots the remaining theories advanced on appeal).
E. Special Monthly Compensation
Mr. Bradley argues that he is entitled to SMC because he has a 100% combined rating for his disabilities other than PTSD, and an additional 70% disability for his PTSD, or, alternatively, that he has a 100% TDIU rating for his PTSD and additional disabilities rated at 60% or more.
The pertinent statutory authorization for special benefits provides that SMC shall be provided to a veteran with a total disability and additional disabilities rated at 60% or more. Specifically, the statute states:
“If the veteran has a service-connected disability rated as total, and (1) has ad
ditional service-connected disability or disabilities independently ratable at 60 percent or more, ... then the monthly compensation shall be $2,766.”
1. Mr. Bradley‘s 100% Combined Rating Argument
“The starting point in interpreting a statute is its language, for ‘[i]f the intent of Congress is clear, that is the end of the matter.‘” Good Samaritan Hosp., 508 U.S. at 409, 113 S.Ct. 2151 (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). In this instance, it is clear from the use of the language and the structure of the sentence that Congress did not intend that a 100% combined rating suffices for “a service-connected disability rated as total.”
Congress used the article “a” and singular “disability” when establishing “a service-connected disability rated as total” as one of the requirements for SMC under section 1114(s). In contrast, Congress permits the second requirement to be met with either a single “disability or disabilities independently” rated at 60%. This demonstrates congressional understanding that multiple disabilities can be combined into a single rating, as well as congressional authorization for combined ratings to satisfy the second requirement but not the first. “Where Congress introduces language in one section yet omits it in another, the disparate inclusion or exclusion is deemed intentional.” Norfolk Dredging Co., Inc. v. United States, 58 Fed.Cl. 167, 176 (2003); Babbitt v. Oglala Sioux Tribal Pub. Safety Dep‘t, 194 F.3d 1374, 1378 (Fed.Cir.1999) (stating that “we must assume that Congress ‘says in a statute what it means and means in a statute what it says there‘” (quoting Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992))); Tropf v. Nicholson, 20 Vet.App. 317, 321 n. 1 (2006) (“[A] functioning system of laws must give primacy to the plain language of authorities. Without standard word meanings and rules of construction, neither Congress nor the Secretary can know how to write authorities in a way that conveys their intent and no practitioner or—more importantly—veteran can rely on a statute or regulation to mean what it appears to say.“); Gardner, 1 Vet.App. at 586 (“Determining a statute‘s plain meaning requires examining the specific language at issue and the overall structure of the statute.“).
Mr. Bradley argues that since all his scar and muscle injuries arose out of a single accident—the in-service explosion—these injuries should be treated as a single disability, entitling him to a total rating. In support of his argument, he notes that for purposes of establishing schedular TDIU, multiple disabilities arising from a single accident are considered one disability. See
2. Mr. Bradley‘s TDIU Argument
Alternatively, Mr. Bradley contends that his TDIU award satisfies the statutory total rating requirement in
Section 1114(s) states that a veteran is entitled to SMC when the veteran has “a service-connected disability rated as total” and a separate disability or disabilities rated at 60% or higher. It is well understood that “‘Congress expresses its intent through the language it chooses’ and that the choice of words in a statute is therefore deliberate and reflective.” Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1347 (Fed.Cir.2004) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 433 n. 12, 436, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). In this instance, the phrase “a service-connected disability rated as total” contains no restriction to a total schedular rating and no exclusion of other total ratings, such as a TDIU, and no such restriction or exclusion is present in the whole of section 1114 or the statutory scheme as a whole. See Reno v. Koray, 515 U.S. 50, 56-57, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (construing statutory language in context of statutory scheme); Kilpatrick v. Principi, 16 Vet.App. 1, 7 (2002) (examining entire statutory scheme in interpreting meaning of statute). Moreover, at the time Congress drafted this legislation, TDIU ratings had been in existence for years. See Veterans Administration, The Schedule of Rating Disabilities, 1933 ed., Extension 4(l) (November 15, 1941) (providing for TDIU ratings);
Further, in this instance, the procedural history associated with the Secretary‘s implementing regulation,
With the omission of the restrictive language, the regulation authorized a TDIU rating to serve as a basis for establishing a total rating under section 1114(s). Cf. In re Town & Country Home Nursing Servs., Inc., 963 F.2d 1146, 1151 (9th Cir.1991) (“As a general canon of statutory construction, where the final version of a statute deletes language contained in an earlier draft, a court may presume that the earlier draft is inconsistent with ultimate congressional intentions.“); see also Black & Decker Corp., 986 F.2d at 65 (“Regulations, like statutes, are interpreted according to the canons of construction.“). And, this regulation has not been changed since the March 1995 amendment. Inasmuch as section 1114(s) does not exclude TDIU from satisfying the “total” rating requirement therein, the Secretary‘s change to regulation § 3.350(i) authorizing the use of TDIU to satisfy the “total” rating requirement of section 1114(s) is a plausible and reasonable interpretation of the statute and this regulation is entitled to substantial deference. See Chevron, 467 U.S. at 844, 104 S.Ct. 2778 (affording deference to an agency‘s interpretation of a statute); Livesay v. Principi, 15 Vet.App. 165, 172 (2001) (en banc) (“The Court will sustain a regulation that is consistent with the language of the statute and is a plausible interpretation of the law.“).
The Secretary argues that several years after § 3.350(i) was changed, the VA General Counsel issued a new opinion in 1999 to the effect that section 1114(s) excluded TDIU as a basis for establishing a total rating under that section. See VA. Gen. Coun. Prec. 6-99 (June 7, 1999). The Secretary further notes that the Board relied on this opinion. Although the Board is required to follow VA General Counsel opinions,3 see
As discussed above, we find nothing in section 1114(s), or the statutory scheme as a whole, that limits “a service-connected disability rated as total” to only a schedular rating of 100%. The 1994 VA General Counsel‘s opinion is consistent with this interpretation, as is the Secretary‘s understanding when he modified the implementing regulation, § 3.350(i), to remove the exclusion of TDIU from satisfying the total rating requirement of section 1114(s). Moreover, we believe that the Secretary‘s interpretation of the General Counsel‘s 1999 opinion—excluding TDIU as a basis for a total rating—is too expansive, and, so read, conflicts with the VA General Counsel‘s 1994 opinion, our interpretation of the statute, and the Secretary‘s current regu
Although the 1999 VA General Counsel opinion generally states that section 1114(s) should not be read as authorizing SMC when a veteran has TDIU and a schedular rating of 60% or more, this general statement is followed by a more specific explanation that narrows the scope of the general statement. Specifically, the 1999 opinion noted that because TDIU takes into consideration all of a veteran‘s disabilities, allowing TDIU to satisfy the total disability requirement of section 1114(s), and one or more of the disabilities upon which the TDIU rating was awarded to satisfy the second requirement of an additional disability or disabilities of 60% or more, would result in the same disability being counted twice. Thus, the 1999 opinion rested its general conclusion on the fact that permitting TDIU to establish a total rating under section 1114(s) would result in duplicate counting of disabilities.
However, this is not always the case. It is possible for a veteran to be awarded TDIU for a single disability and thereafter be awarded disability ratings for other conditions. Under these circumstances, there would be no duplicate counting of disabilities. The 1999 opinion did not address this situation, and we will not read it for the proposition that all TDIU ratings are excluded from satisfying the 1114(s) total rating requirement, which would render it in conflict with the 1994 VA General Counsel opinion, our interpretation of section 1114(s), and regulation § 3.350(i). Cf. Commonwealth Edison Co. v. Vega, 174 F.3d 870, 875 (7th Cir.1999) (noting that where there is no conflict between differing interpretations, there is no need to decide which controls); see also Norfolk S. Railway Co. v. Shanklin, 529 U.S. 344, 356, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000) (giving no deference to an agency interpretation that conflicts with the agency‘s previous interpretation).
Accordingly, under the circumstances of this case, we need not decide the full scope and validity of the 1999 VA General Counsel opinion, or whether the Secretary permissibly may modify his regulation to exclude TDIU from satisfying the section 1114(s) requirement of a total rating. We need only decide, and so hold, that section 1114(s) does not limit “a service-connected disability rated as total” to only a schedular rating of 100%, and the Secretary‘s current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating.
F. Application of 38 U.S.C. § 1114(s)
With regard to Mr. Bradley‘s TDIU rating, the record is confusing. A June 1991 RO decision confirmed his scar and muscle injury ratings, increased his PTSD rating from 30% to 70%, determined that he was unable to engage in substantially gainful employment, and awarded him TDIU, and a 1997 Board decision established the effective date of his TDIU as March 1983. The increased PTSD rating appears to be the basis for the TDIU award, however, the RO only generally stated that “the veteran‘s SC [service-connected] disabilities render him unemployable ...” R. at 1126 (emphasis added). A January 2005, RO decision noted that Mr. Bradley received TDIU effective from March 1983 until June 1992 at which time he received a 100% combined rating.
The Secretary is required to maximize benefits, see AB v. Brown, 6 Vet.App. 35, 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation);
Should the Secretary determine on remand that Mr. Bradley is entitled to a total rating based upon PTSD alone, and Mr. Bradley therefore qualifies for SMC (because he has additional disabilities other than PTSD rated at 60%), the proper effective date must be assigned. Although Mr. Bradley raised the issue of his entitlement to SMC in January 2000, these benefits are to be accorded when a veteran becomes eligible without need for a separate claim. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (noting VA‘s policy to consider SMC where applicable). Accordingly, any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before Mr. Bradley raised the issue of his entitlement thereto. See
G. Remanded Matters
For those matters being remanded, Mr. Bradley will have the opportunity to present any additional evidence and argument in support of his claim, and the Board must consider any evidence and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The matters remanded are to be provided expeditious treatment. See
III. CONCLUSION
That part of the Board‘s March 3, 2006, decisions denying earlier effective dates and increased disability ratings for Mr. Bradley‘s multiple muscle injuries is AFFIRMED; those parts of the decisions addressing CUE in the August 1994 RO decision, entitlement to ratings in excess of 10% for residual scarring, and service con