*1 BRENISER, George Appellant, W. SHINSEKI, K.
Eric Affairs, Appellee.
Veterans
No. 09-0728. Appeals States
United
for Veterans Claims.
Argued June 2011. Sept.
Decided Horan, P. with whom Linda E.
Michael Zajac Blauhut and Jennifer A. were on the D.C., brief, Washington, ap- all of for the pellant. *2 Carr, Rogall
Leslie C. and Michael A. for aid and attendance arises from a dis- Gunn, Counsel; with whom Will A. General ability other than that for which the claim- and R. Campbell, Randall Assistant Gener- already Hence, ant is in receipt of SMC. Counsel, brief, al were on the all of Wash- the Court must part affirm that D.C., ington, appellee. Board’s decision that concluded that appellant did not meet the requirements KASOLD, Before Judge, Chief higher for a rate of on SMC account of the SCHOELEN, LANCE and Judges. mid, loss of use of both feet being in need of the aid or person attendance of another SCHOELEN, Judge: as a result of the loss of use of both feet. The appellant, Breniser, George ap- W. 1114(0 (o). However, U.S.C. peals through February counsel a because the Court concludes (Board Board of Veterans’ Appeals Board erred failing to consider whether BVA) decision which the Board denied the appellant is entitled to a higher rate of his claim for entitlement higher to a rate pursuant to 38 1114(p), U.S.C. (SMC) special monthly compensation on will remand the matter for further being account of in need of the aid and proceedings consistent with this decision. attendance of person another or on ac- count of being housebound.1 Record of I. BACKGROUND (R.)
Proceedings at 3-12. Panel consider- required ation is to determine whether a The appellant served on duty active veteran who is receiving SMC for the Army loss January U.S. from 1949 to June of use of both feet under 38 U.S.C. 1952. R. at 766. He was receiving com- 1114(1) entitled pensation for amputation of his left middle (r) 1114(o), SMC under 38 (p), U.S.C. finger; a shrapnel wound scar on his chin based on his need for aid and biopsy and a right gastrocnemius; scar for when such need feet, arises out of the injury loss cold plantar fasci- use of both feet. appeal timely, This Raynaud’s itis and phenomenon, evaluated jurisdiction and the Court has to review as 30% disabling, April May from 1998 to pursuant 2007; Board’s decision to 38 injury and his cold for both feet was 7252(a) 7266(a). §§ Because changed to loss of use of both feet as 1114(o) prohibits a “condition from injury, residuals cold evaluated as 100% considered twice” in 72-73, subsections disabling, May effective 2007. R. at 194-95, when determining whether a In he was veteran is to a higher entitled granted a total rating based on under subsection and the Court defers individual unemployability effective Octo- to the Secretary’s reasonable interpreta- ber 2001. R. July at 377-81. In (RO) tion of requiring as regional deter- granted office entitle- minations upon to be based separate and ment to SMC based on loss of use of both disabilities, distinct the Court pursuant 1114(1), concludes feet to 38 U.S.C. effec- that a claimant cannot establish entitle- May tive well as entitlement to ment to a higher rate of SMC under sec- automobile adaptive equipment specially claimant’s need adapted housing. R. at 68-74. —unless Gober, any argument 1. The appeal. does not raise abandoned on See Ford v. appeal concerning on Vet.App. (holding denial of SMC on claims not housebound; therefore, abandoned); account argued appeal are deemed Brown, (1993). Court will consider the Bucklinger matter to have been [, disabilities ] are not service-connected here on February decision
In its is not warranted.” assignment of [SMC] the Board denied appeal, “al- concluded that rate of R. at 10. The Board to a claim for entitlement *3 technically requires though aid and attend- the veteran on the need for SMC based attendance, required housebound. for a of it is ance or on account and appel- disability sepa- that is Board noted R. at 3-12. The [service-connected] leg bilateral dis- of use of the that “his from the loss argument lant’s rate and distinct abilities, along with nonservice-con- therefore barred feet and the veteran is and decreased of a stroke Id. receiving nected residuals additional benefits.” from him wheelchair have rendered that since the Finally, vision the Board found 1114(2) aid and assistance requir[e]” was bound under section compensation to a that he is entitled person another such based on than the rate for SMC greater 1114(s), R. at 6. The compensation. higher rate of under section housebound status 1114(s) al- that “as the veteran is Board noted moot. section was the claim under receipt under U.S.C. ready [SMC R. at 11. 1114(2)], appeal § what he seeks to this appellant appealed se pro The additional, higher rate of [SMC] an February and filed an U14(o).” at 7. The Board § R. July 2009. After the case informal brief rate of SMC under higher that the stated appellant assigned panel, was to a 1114(o) for, among oth- payable “is counsel, informal withdrew his obtained entitling a veteran things, er conditions brief, and substituted a formal brief. (no condition two more of the rates 26, 2011, appellant in- January On twice) provided in 38 considered January that on formed the Court 1114(2) (n). Determi- U.S.C.A. him he been awarded notified had VA nations for entitlement under U.S.C.A. for service-connect- disability rating a 60% separate upon must be based loss, rating for hearing disability a 10% ed Thus, R. at 8. and distinct disabilities.” tinnitus, based higher and a level SMC ap- that the although the evidence showed rating, effective March on the 60% required was wheelchair bound pellant subsequently ordered 2010. The Court another, because SMC the assistance clarify arguments his appellant of use of already in effect for loss
was § 1114 identify the of 38 U.S.C. 1114(0, the Board under section both feet granted under which was he is whether the question stated that of SMC. upon need for aid and attendance “is appellant re- February On than other service-connected awarded a half- sponded that he had been disability of the feet.” R. at the bilateral rate of SMC under 38 step increased appellant’s 8-9. The Board discussed § 1114(p) finger and amputated service-connected 3.350(f)(3) (2010), that this and asserted scar, that the evidence and found residual appeal award did not moot his that these disabilities did not demonstrate 23, 2011, response, February In a Court. that he incapacitated him “so rendered Secretary agreed that the award R. at 9-10. care or assistance.” requires (p) did increased under subsection appellant’s Board also discussed arguments. The not moot the conditions and stat- non-service-connected however, noted, if the ap- that these con- likely it is ed “[w]hile the level of pellant disagrees with veteran’s to result ditions combine 2011, decision, January they assigned because need for aid to file a Notice of to enable the Board “determine remedy his would be ed January loss of use Disagreement with the whether service-connected [his] decision. aggravates his feet his non-service-con this aggra nected disabilities and whether
II. THE PARTIES’ CONTENTIONS qualifies vation him an additional 1114(0, award under [SMC] [38 U.S.C.] Arguments A. The Appellant’s 3.352(a).” (o) , (r)(1)[,] C.F.R.] and [38 Court to asks the reverse at 26. Id. the Board’s decision because he asserts that he is entitled to a rate of SMC *4 His second for remand is that argument unambiguous under the plain and lan- the Board failed to consider whether he is guage Appellant’s of 88 to a under subsection higher entitled rate (Br.) appel- Substitute Brief at 8-21. The , which allows for an intermediate or (p) 1114(o), argues, lant to section pursuant higher rate where a “veteran’s service- full that he is entitled to the maximum rate of require- the connected disabilities exceed SMC because the criteria for he satisfies prescribed ments the rates 1114(0- two rates Id. at under section § 1114(p); section 38 U.S.C. [1114].” appellant 20-21. The contends that his 27-28. Appellant’s see Br. at As noted first is the entitling “condition” loss of use above, the that the Janu- appellant asserts entitling of both feet and that his second ary 2011 a rate of higher award of SMC “condition” is that “his- service-connected section effective from 1114(p), under loss of use of both make him so feet[ ] his argument March does not moot helpless regular that he the requires that, remand, he the because asserts person.” and attendance of another Id. Board could he is entitled determine that 19. Because he to two rates is entitled full-step higher rate SMC. 1114(£), argues SMC under he section Secretary’s Arguments B. The that he to the higher is thus entitled rate 1114(o) of SMC under the section brief, Secretary In a ar- substitute the 1114(r)(l). even higher rate under Id. at that are consistent gues regulations appellant argues 20-21. The also that the statute, both the plain language Secretary’s implementing regulation, 38 intent. congressional as well as with Sec- 3.350(e)(3) (2011), legally C.F.R. is inval- retary’s Secretary Br. at as- 6-18. plain ignores id because it 3.350(e)(3) correctly that 38 C.F.R. serts 1114(o) treating section terms “dis- 1114(o), that interprets 38 U.S.C. “condition,” ability,” syn- “conditions” regulation clearly statute and the 9-10,13-16. onymously. Id. at rate of preclude awards for the maximum (o) alternative, In under subsection based on the argues he that re disability. Secretary mand is the Board Id. at 9. The warranted because same argues his that of [section failed consider whether non-service- the context “[i]n stroke, history, the word ‘condi- recog ] connected Board its a term affecting clearly nized as a his need for tions’ refers to such as attendance, ‘circumstances,’ aggravated by latter use of the aid and is his and the form, ‘condition,’ singular re- injury service-connected and should word in its cold or disabil- entitling underlying constitute a second condition un fers to 1114(o). ities, loss, use, der section at 22-26 such as anatomical loss of (citing Id. (1995) (en Brown, blindness, to a [v]eteran Allen v. entitles banc)). proscribed paragraph He that remand is warrant states rate. Id. rate or at an intermediate higher (emphasis § 1114.” Id. at 15 38 U.S.C. feet, along with loss of use of both Secretary maintains Because original). statute, inception, its awarded the need for aid and “the since who rate to an individual circumstances higher not one of the enumerated 3.350(f), the lower extrem- loss or loss of use of had asserts listed addition, and, due to helplessness ities Id. 1114(p) applicable. is not that section disability or other service-connected some ap- at 10. Because the disabilities.” Id. III. LAW attendance need for aid and
pellant’s § 1114 A. 38 U.S.C. feet, of use of his arises out of the loss that he is not entitled to Secretary argues when, available “as the result SMC is disability,” a veteran service-connected argument, Id. at 18. At oral above and be hardships suffers additional Secretary conceded by VA’s schedule yond contemplated those if to a rate of SMC under entitled rating disabilities. See *5 1114(o), then he would also be section 1114(k)-(s). The rate of SMC “varies under entitled to an additional allowance the veteran’s according to the nature of (r)(l) on his need for subsection disabilities.” Moreira v. service-connected regular aid and attendance. (1992). 522, 524' The Principi, Vet.App. as to whether a vet respect appellant’s argu to the Board’s determination With remand, Secretary finding the asserts is a of fact ments eran is entitled SMC appellant previously the has not “clearly reviews under the a claim for service connection on raised Preje erroneous” standard of review. See secondary pointed (2000); has not West, basis and Vet.App. an v. in the record of such claim. evidence Brown, 222, 224 Vet.App. Turco v. Secretary argues Id. at 18-22. The (1996). merely ap the record establishes that the are listed in section Basic levels stroke, pellant suffered a which rendered 1114(k). provid- are Higher levels of SMC propel him wheelchair. Id. unable his 1114(7), (m), (n), (o), in sections ed Secretary at 21. The contends that the state, pertinent part: which error in appellant has not demonstrated veteran, if the as the result of ser- the Board’s decision because disability, has suffered vice-connected a belief that previously has not asserted the anatomical loss or loss of use of both his non-service-connected stroke is related feet, foot, or is or of one hand and one that caused to the cold weather residuals eyes, in both with visual blind 5/200 the Board is the loss of use of his feet and less, acuity permanently or or is bedrid- ‘require[d] to conduct an exercise in “not significant disabilities den or such Talbert v. prognostication.’ Id. regular aid and as to be need of (1995)).
Brown, Final attendance, monthly compensation Secretary appellant’s ly, refutes $3,075; shall be potential (p) assertion that subsection was (m) veteran, if the as the result of ser- claim at the ly applicable disability, has suffered vice-connected time of the Board’s decision. Id. at 22. the anatomical loss or loss of use of both Secretary regulation relies on VA’s level, 3.350(f) hands, (2010), or with legs or of both at which delineates C.F.R. complications, preventing natural knee in which the numerous instances place, or of one prosthesis the next action with pay is authorized to ..., regular arm or has suffered and is need of and attend- leg and one ance, to compensation then in addition eyes having only light blindness in both perception, in available under subsection he is enti- or has suffered blindness eyes, rendering both such veteran tled to receive an additional “aid and at- so allowance” section significantly as to be in need of tendance disabled 1114(r)(l) (2). monthly aid and $3,392; compensation shall be 3.350, §§ B. 38 C.F.R. 3.352 veteran, if result of ser- regulations promulgated imple- VA has disability, vice-connected has suffered 3.350, menting §§ section 1114. 38 C.F.R. loss of anatomical loss or use of both (2011). appeal, As relevant to this 3.352 levels, with complications, arms at regulation implementing preventing natural elbow action with provides that SMC under the prosthesis in place, has suffered the ana- payable entitling rate is “[c]onditions legs tomical hip loss of both so near the (no two or more of the rates prevent prosthetic as to appli- the use twice) provided considered in 38 ances, or has suffered anatomical 1114(Z) (n).” ..., leg loss of one arm and one or has 3.350(e)(l)(ii). appellant challenges eyes, suffered anatomical loss of both 3.350(e)(3), provides Secre- light per- has suffered blindness without (o )’s tary’s interpretation ception in eyes, monthly com- proviso “no condition considered $3,860; pensation shall be determination,” twice in the and states: *6 (o) veteran, if the as result of ser- Combinations. Determinations must be disability, vice-connected has suffered upon distinct separate and disabil- disability under conditions which would requires, example, ities. This for entitle such veteran two or more of where a veteran who had suffered the the rates in one or provided more sub- loss or loss of two use of extremities is (n) (l) section, of through sections being maximum rate considered for the no condition considered twice helplessness requiring reg- on account of determination, monthly com- attendance, ular aid and latter must pensation $4,313. shall be resulting pathol- be based on from need 1114(Z) (o). Thus, subsec- — ogy other than that of extremities. (l) (n) tions through provide progressively If the loss or of two extremi- loss of use increased rates of based on the se- ties or being permanently bedridden verity disability. of the veteran’s Subsec- person helpless, leaves the increase is (o) provides higher tion even for an of helpless- not in order of this on account for are veterans who entitled to two ness. will the Under no circumstances or more of the under one or provided rates “being permanently combination of bed- (n). (l) through more subsections “being helpless ridden” and so as to (p) require
Subsection for half- or full- provides regular aid attendance” next step separate increases to the rate in without distinct anatomical loss, use, extremities, subsections for a or through veteran loss of of two or blindness, requirements whose condition entitling exceeds be taken as rate, fact, however, of qualify his current but does not for maximum benefit. The 1114(p). separate entitling the next rate. 38 that two distinct disabilities, loss, Finally, if a entitled to compen- veteran is such as anatomical feet, sation authorized under subsection loss use of both hands as a whole. with his or her condition agent, tion etiological from a common result necessary that the evidence only It is injury or rheumatoid example, one helpless en- veteran is so arthritis, maximum establish that the preclude will not need titlement. as to need. there be a constant not that 3.350(e)(3). 38 C.F.R. 3.352(a). 38 C.F.R. to the determina- criteria relevant The helpless “is so as whether a veteran tion of IV. ANALYSIS regular aid and attendance in need of to be question before the Court 3.352(a).” §in are contained receipt who is in whether a veteran 3.352(a) 3.350(b)(3). states: Section 1114(¿) the loss of SMC under consider- following will be accorded receive the qualifies of both feet use determining regu- the need for ation under section maximum rate of SMC inability ...: attendance lar aid and establishing that he has also himself dress or undress claimant disability under conditions suffered (herself) (herself), keep or to himself under subsec entitle him to SMC would fre- ordinarily presentable; clean and (O need of on account adjustment any special quent need of vet attendance —when the regular aid and orthopedic appliances prosthetic is the need for aid and attendance eran’s particular disabil- reason qualifying service-con only result of his (this will without aid ity cannot be done disability2 loss of use of both nected —the adjustment appliances not include a “con prohibits feet—and would be unable persons which normal twice in the being considered dition [from] aid, supports, adjust without such stated, can Alternatively determination.” etc.); belts, back, inability at the lacing attendance, in and of the need for aid and (herself) to feed himself of claimant itself, qualifying constitute a upper of coordination of through loss arises from the veteran’s when that need extreme weak- extremities or *7 disability that al only service-connected ness; inability to attend to the wants of him under section ready entitles to SMC nature; or men- incapacity, physical 1114(0? statutory matter of This is a tal, care or assistance on requires which the determines interpretation, which the claimant protect basis to 7261(a)(1); novo. See 38 de incident to his dangers from hazards or (1993) 532, Brown, 539 Vet.App. Butts v. 5 daily environment.... It is not or her banc). (en disabling that all of the condi- required be paragraph enumerated this tions Statutory Interpretation A. rating a favorable found to exist before begins with “Statutory interpretation may particular personal made. The be statute, plain language of the the which the veteran is unable to the functions which we from its text meaning in connec- derive perform should be considered loss) above, (hearing indepen- granted appellant was connected 2. noted As hearing dently service connection for entitlement ratable at or more. See 38 C.F.R. 50% tinnitus, loss, disabling, 3.350(f)(3) (2010). evaluated as 60% Because these awards disabling, effective March evaluated as 10% February granted were after the Board’s 2009 29, higher rate The RO also awarded a 2010. will appeal, here on the Court refer decision 1114(p), effective of SMC under 38 U.S.C. solely appellant's of use of both feet to the loss on the loss March purpose of its discussion. for feet and additional service- of use of both
71
Nicholson,
provided
489
rates
in one or more subsec-
Myore
structure.”
v.
(O
(Fed.Cir.2007)
section,
1207,
1211
tions
of this
no
F.3d
M.S.P.B.,
1320,
being
in the
McEntee v.
404 F.3d
1328
considered twice
Shinseki,
(Fed.Cir.2005));
determination,
monthly
23
Sharp
compen-
see
v.
267,
(2009);
$4,313.
271
see also McGee
sation shall be
(Fed.Cir.
Peake,
1352,
511 F.3d
1356
1114(o)
added).
(emphasis
2008);
Derwinski, Vet.App.
Gardner v.
emphasized
“condi-
meaning
terms
(1991)
584,
(“Determining
a statute’s
“condition,”
well
tions” and
as
meaning requires
plain
examining
spe
phrase
“no condition
considered
cific
issue and
overall
twice in the determination” is essential to
(citing
structure
the statute.”
Bethesda
resolution
the matter on
Court’s
Bowen,
Hosp. Ass’n v.
485 U.S.
403- appeal.
(1988))),
Section five distinct qualifying two conditions under subsection veteran, ways for a “as the result of ser- (l): of both loss of use feet and need disability,” qualify vice-connected Questioned attendance. at oral (1) SMC: Anatomical loss or argument interprets phrase how he (2) feet; loss of use of both anatomical loss twice,” “no condition considered foot; or loss of use of one hand and one that a appellant stated veteran could eyes blindness in both visual 5/200 receive at the rate because he *8 (4) less; acuity or being permanently bed- has loss of use of both feet and loss use (5) ridden; having significant or “such dis- of both feet. regular
abilities as to be need of aid and Secretary The asserts that entitlement 1114(i). attendance.” 38 The U.S.C. to the rate under subsection “need aid and attendance” separate be and distinct must based 1114(0 must be the result of “such Secretary The that posits disabilities. significant disabilities.” 38 U.S.C. (o )’s of the term “condi- use 1114(0- a generally tions” refers term such Section states that “circumstances,” of the and the latter use veteran, “condition,” underlying if the as the result of service- word refers to the disabilities, disability, connected has suffered dis- or combination of loss, use, ability under conditions which would en- such as anatomical loss of blindness, title such veteran to of the that entitles a veteran to a rate two or more 72 (l), (m),
proscribed
ambiguous,
in subsections
are
the Court must
turn to
of 38
1114. At oral argument,
U.S.C.
step
analysis,
two of
Chevron
that
Secretary explained
under subsec-
requires
Agen-
the Court to defer to the
(o) a veteran
receive
may
the maxi-
cy’s
interpretation
authorized
of the stat-
if,
mum rate
example,
the veteran has
agency’s
ute if “the
answer is
on a
the loss of use of both feet and
a
sustained
permissible construction of the statute.”
separate
disability, e.g.,
service-connected
Chevron,
843,
2778;
467
at
104
U.S.
S.Ct.
injury,
requires
traumatic brain
Holowecki,
Express
Corp.
see Fed.
552
and attendance.
U.S.
128 S.Ct.
170 L.Ed.2d
The
Court notes that nowhere
(2008) (“[W]hen
10
an agency invokes its
statute
Congress
does
define
terms
authority
regulations,
to issue
which then
Moreover,
“condition” or “conditions.”
terms,
interpret ambiguous statutory
whole,
review of section
as a
reveals
courts defer to its reasonable interpreta-
not use either term in
did
tions.”); see also Nat’l Ass’n
Home
(o).
any subsection other than subsection
Wildlife,
Builders v.
551 U.S.
Defenders of
The statute’s silence on the
definition
B. 3.350(e)(3), tion” or “conditions.” Section “Combinations,” appears specif- entitled to Having that the concluded terms “condi- 1114(o) ically implement statutory language tion” and “conditions” section the
73 1114(o), implicitly explicitly, by Congress.”). or being “no condition con- section determination,” by- primary twice the the regu- sidered Because function stating: interpret imple- lation is to the statute it ments, not, it, regulation upon sep-
Determinations must be based not mimic need arate and re- not, distinct disabilities. This the statute it parrot imple- and should quires, for that where a veter- example, ments. held that regulato- This Court has an who had the loss or suffered loss of ry “merely parrots that the stat- being use of two is extremities consid- utory language” interpretive has no value. ered for the maximum rate on account of at 274 Sharp, Vet.App. (finding See 23 that helplessness requiring aid and 3.4(b)(2) (2009) § C.F.R. “does not as- attendance, the latter must be based on interpretation sist the section 1115 resulting pathology need from other it merely parrots statutory because the than that of the If extremities. the loss language”); v. Oregon, see also Gonzales or loss of use of or being two extremities S.Ct. permanently per- bedridden leaves the (2006) (“[T]he L.Ed.2d 748 existence of a helpless, son is not in increase order on parroting regulation change does the helplessness. account of this question fact that the here is not 3.350(e)(3). C.F.R. meaning of but regulation meaning interpretation The Secretary’s of the statute.”). Therefore, absence 1114(o) term “condition” in section to of the word “condition” or “conditions” in “disability” mean is implemented 3.350(e)(3) by itself not render the does regulation sentence requiring first Secretary’s interpretation invalid. In- must be upon “[d]eterminations stead, by explaining that determinations separate distinct disabilities.” Id. The upon separate “must be based and distinct 3.350(e)(3) §of remainder describes when 3.350(e)(3) pri- disabilities” fulfills its may veteran may not be entitled to a mary function instruction giving helpless on account of meaning phrase to the “no condition being requiring regular ness aid and attendance considered twice the determination.” has or suffered the loss loss of use of Thus, Secretary asserts question extremities. specific two The 3.350(e)(3), which instructs that SMC must address is whether Secre granted is to be tary’s regulation, interprets phrase “no veterans who are in need of aid and at- considered disability to mean twice” “no consid tendance for a service-connected twice” ered is a reasonable construction of from separate that is and distinct the ana- Chevron, supra. the statute. tomical loss loss of use blindness that already subject of a rate of SMC purpose regulation agency’s of an (n), under subsections is con- interpretation articulate the agency’s requirement sistent with the statute’s statute, provide guidance and to on how “no condition be twice in the considered implement that statute. See Morton v. determination.” Ruiz, U.S. support for his (1974) (“The posi- finds power
L.Ed.2d an ad- history legislative leading administer agency ministrative a con- Regulation 1945 amendments to program Veterans’ gressionally created neces- *10 1(a), sarily permitted helplessness, No. which requires policy the formulation of left, time, making any gap to fill first to with of rules be combined other disability which was de total’ “‘[d]ouble for the maximum conditions qualifying help with disability, along fined as a ‘total’ of SMC.3 including pathology, ‘from other lessness July out that Secretary points ” Secretary’s Br. at 13-14 deaf.’ blind and Administration Admin- the Veterans 7884) (emphasis Cong. Rec. Hines, istrator, Frank T. submit- General added). the 1945 undisputed It Congress to legislative proposal ted VA’s con to broaden the amendments intended as a be included helplessness urging combined to warrant ditions that could be the maximum rate upon basis rate. The Ad an award of the maximum Cong. awarded. See 91 could be Congress to explanation ministrator’s (1945). In a letter to Con- Rec. 7880-81 give reflect that to the chart he submitted explained: the Administrator gress, that “no statutory language effect to the rate, as a result of includ- The maximum twice in the de considered be[ ] condition entitling helplessness as one of ing termination,” that the maxi envisioned VA cover, disabilities, intended to multiple available when the mum rate would be to obvious losses and blind- in addition from the loss or loss veteran suffered ness, of use myelitis with loss transverse extremities, helplessness use of two of anal and bladder legs of both and loss from an service-connect arising additional control, resulting sphincter generally disability, than the loss or loss of ed other cord in spinal from severance of two extremities. use airplane or action or incident to motor- crashes; also military equipment ized September On extremities with the loss of use of two “to Regulations the Veterans’ amended deafness, or near blindness and absolute compensation or provide additional rates of multiple injuries outside with severe inequalities spe- as to pension remedy extremities, be- these conditions useless disabilities in excess cific service-incurred use of two ex- ing construed as loss of disability.” Pub.L. No. 79-182 of total helplessness. tremities (1945). so, Congress adopted doing In added). (emphasis at 7881 Id. proposed by as what is now subsection statutory The lack of a definition for VA. record contains congressional The same left the term “condition” a chart the Administrator submitted Agency gap to be filled forth the then-current Congress setting —and history provided by noted above—the for each level of proposed amounts has, that VA since its that the maxi- shows specified The chart SMC. helpless- inclusion of inception, viewed the mum rate of would be awarded amendment, 1(a), I, pt. para. Regulation No. a veteran veterans' to the 1945 Prior II(o) added). (emphasis The 1945 receive the maximum rate was entitled to pertinent part, provided, in amendment person, as the result of the disabled [i]f person, the disabled as the result of [i]f disability, incurred has service suffered disability, dis- service incurred has suffered provided in loss or loss use as anatomical ability under conditions which would entitle inclusive, (Z) (n), subparagraphs of Part I provided in him to two or more of the rates Regulation, paragraph II (Z) (n), subparagraphs one or more of the inclusive, (Z) subparagraphs which conditions under I, paragraph part II of this (n), him to two or more of the entitled Regulation, no condition considered ..., determination, provided subparagraphs, no monthly rates those twice in the specified considered twice pension $300.00. be shall determination, I, 1(a), monthly pension Regulation pt. para. No. Veterans' added). II(o) (1945) (emphasis $250.00. shall be
75 3.350(e)(3) a qualifying ness as condition for the maxi- that to be “[d]eterminations require mum that need for aid separate upon and distinct disabili- from pathology and attendance arise other ties” is a interpreta- reasonable and valid already than that for which the claimant is tion of 38 See Lorillard in receipt long- of SMC. While “reliance on Pons, 575, 580, 866, v. 434 U.S. 98 55 S.Ct. standing agency practice must be tem- (1978) (“Congress presumed L.Ed.2d 40 pered with some caution in the veterans judicial be aware of administrative or context,” Gardner, see Brown v. 513 U.S. interpretation of a statute and to adopt 552, S.Ct. interpretation when it re-enacts a (1994) (refusing Chevron deference to the statute without change.”); see [relevant] Agency’s longstanding interpretation that Paralyzed also Am. v. Sec’y Veterans of of contrary was to the plain language of the Affairs, Veterans 345 F.3d statute), it is not prohibited. See Disabled (Fed.Cir.2003) (“[W]here application of Am. Veterans v. Sec’y Affairs, Veterans customary statutory canons of construction (Fed.Cir.2005) (distin- 419 F.3d directions, in points opposite we resort to guishing Gardner under circumstances principle.” (citing Org. Chevron Nat’l showing Congress ratified and author- Sec’y Veterans’ Advocates v. Veterans longstanding practice); ized Board’s (Fed.Cir. Affairs, 260 F.3d generally see N.L.R.B. v. Aerospace Bell 2001))); Principi, DeBeaord v. Textron, Div. Co. (2004) (stating “where the mean- (noting L.Ed.2d 134 ing statutory provision ambiguous, that an principle statutory established the Court must take care not to invalidate permits construction a court to “accord agency regulations otherwise reasonable great weight long standing interpre- to the simply they provide because do not for a placed tation agency on a statute an pro-claimant every outcome in imaginable charged with its administration ... espe- case”). The regulation’s “sep- reference to cially ... where has reenacted arate and distinct disabilities” resolves the statute without pertinent change”); ambiguity statutory language “no Money Mgmt., 811 F.2d Office offers. considered twice” and (Fed.Cir.1987) 1474, 1477 (stating that makes clear that the maximum rate under longstanding interpretation placed “[t]he (o) only subsection is available when the on a agency charged statute with its veteran’s entitlement to two or more rates administration should be followed unless subsections is based there are compelling indications that it is separate service-connected disabilities. wrong”). support Secretary’s Additional for the case,
In this the Court finds that interpretation can be found in the statute history provided by Secretary, Con- (m) specifically provides itself. Subsection gress’s repeated reenactment of subsection (o) for a when “the veter pertinent change,4 together without an, as the result of with the service-connected dis deference owed to an agency’s ability ... has reasonable suffered blindness interpretation of a statute it to implement, compels eyes, rendering significantly seeks such veteran conclude that the requirement disabled as to be in need of aid and legislative history 4. The statutory language, of section 1114 shows amendment without cost-of-living change pertinent dispute. addition to numerous therein, See, adjustments prescribed e.g. to the rates Veterans' Benefits Act of Pub.L. 601(a)(3), undergone has additional 124 Stat. 2864.
76 Servs., 1114(m); v. Brand X Internet 38 comm. Ass’n attendance.” 38 U.S.C. cf. (l) 1114(k), 967, 981, (providing lower 162 545 U.S. veteran, (2005) (“If if a as the result of rates of SMC ambig is L.Ed.2d 820 statute disability has suffered service-connected uous, implementing agency’s and if the eye, having only light “blindness of one reasonable, re construction Chevron eyes, or “is blind in both perception” agen quires accept a federal court to less”). acuity comparison visual A 5/200 statute, if cy’s construction of the even the compensation provided of the rates of reading differs from what agency’s veterans have suffered Congress for who statutory court believes is the best inter demonstrates varying degrees of blindness Chevron, (citing pretation.” U.S. provide that when intended 2778)). 11, 104 n. S.Ct. rate for a condition—blindness— ” Meaning 2. The “Conditions resulted in when that same condition also attendance, Congress the need aid Secretary contends that section time, At knew how to do so. the same 1114(o)’s use of the term “conditions” re in Congress generally provided fers to term such as “circumstances.” (o) may that the maximum rate be award Thus, Secretary’s Br. at 15. where the veteran establishes entitle ed (o) reads the in subsection as provided of the rates ment two more veteran, meaning: as the result of “[I]f (l) (n), through long in so subsections disability, has suffered service-connected in “no condition considered twice [is] (in lieu of disability under [circumstances 1114(o). Al determination.” 38 U.S.C. “conditions”) which would entitle the vet ] though may this distinction seem some eran to two or more of the rates under one arbitrary what that a veteran who suffers (l) through or more subsections of this in eyes blindness and is need of aid (in section, [disability no lieu of “condi and attendance as a result of that blind tion”) being considered twice in the de ] compen ness is to a entitled monthly compensation termination ... “(m)” rate, (although sation at the not the shall be....” Al maximum) than a veteran who suffers the though we are mindful of the basic canon loss of use of both feet and is in need of statutory construction that “identical aid and attendance as a result of the loss terms within an Act bear the same mean feet, Congress expressly of both use ing,” see Estate Cowart v. Nicklos Drill progressively increasing devised rates of Co., 469, 479, ing 505 U.S. S.Ct. (l) through SMC subsections (1992), recognize we L.Ed.2d also upon its determination of what conditions “ words have different shades ‘[m]ost disabling. Against were more this back may meaning consequently be vari drop, Secretary’s cannot find the Court construed, ously [they when [even] are] interpretation, prohibits at the used more than once the same statute maximum(o) rate when the need or ... section.’ Envtl. v. Duke En pa and attendance from the arises same Def. ergy Corp., 549 U.S. S.Ct. thology that otherwise entitles the veteran Atl. provided to an award of at a rate States, Dyers, & Inc. v. Cleaners United (n), subsections unreasonable. 3.350(e)(3). 76 L.Ed. Although (1932)). Thus, given term the “[a] sympathetic situation, may same statute take on distinct charac remedy Congress, his lies with not this See Nat’l & Tele ters from association with distinct statuto Court. Cable ry objects calling implementa for different tigations and information’ available to the *13 strategies.” tion Id. agency” Co., (quoting Skidmore v. & Swift 89 L.Ed. above, by regulation, As noted VA has (1944))). Thus, recognition of the (o) interpreted require subsection fact that “most words have different determinations be upon “separate shades of meaning” and can be “variously disabilities,” distinct agrees construed” the Court with the Sec- 3.350(e)(3), interpretation and that is en- retary that the term “conditions” in sub- titled to Chevron deference. Clearly, as- (o) section refers generally to “circum- cribing identical meaning to “condition” stances.” (o) “conditions” subsection would Accordingly, the Court holds that lend itself to a nonsensical reading of sub- (o) claimant who is in receipt of SMC cannot veteran, section stating: as “If the as establish entitlement to a second rate of the result of disability, service-connected 1114(0 SMC under section based on the has suffered disability under [disability ] and, need for hence, aid and ...” 38 U.S.C. Because such a attendance — of SMC under section reading result, would lead to an absurd 1114(o) the claimant’s need for is not constrained to resolve the —unless aid and attendance arises from a ambiguity of the singular plural use of other than that for which the claimant is the same noun in subsection attrib- already in receipt of SMC. uting the meaning same regard- them less of their context. Application C. To Case
The Court notes that the Secretary’s The appellant here in receipt of interpretation 1114(Z) supported “conditions” is SMC under section for loss of use by consulting a dictionary to ascertain the of both feet. He does not dispute that his “ordinary term’s meaning.” See Nielson need for aid and attendance results from Shinseki, (2009) (not his loss of use of both feet. Because sec ing 1114(Z) it is “commonplace to consult dic requires the need for aid and tionaries to ascertain a ordinary term’s attendance to be the result of signifi “such meaning”). disabilities,” The noun “condition” in its cant second award of plural may form be 1114(Z) defined as “attendant SMC under section for aid and circumstances.” See MERRIAM-WEB attendance necessarily would be based on STER’S COLLEGIATE DICTIONARY appellant’s loss of use of both feet. (10th 1999); ed. see Nicholson, also WEBSTER’S See Howell v. 19 Vet.App. (3rd NEW WORLD DICTIONARY 255 (holding that plain “[t]he 1988) college ed. (defining “circumstances” and unambiguous language of section 1114(Z) “conditions surrounding and affecting a requires that a claimant be in need person”). (o), In the context of aid and attendance ‘as the result applying this definition to “conditions” rea disability’ service-connected sonably 1114(0))- ambiguity resolves the stat Since section Chevron, utory term. supra; See gen see precludes “being conditions from erally Mead Corp., 533 U.S. at considered twice” determining entitle 2164 (noting that “Chevron did noth ment to two or more rates under sections ing 1114(() holding (n), eliminate Skidmore’s and the Court con an agency’s interpretation may merit some cluded above that the Secretary’s regula form, tion, deference whatever given its requiring determinations to be based ‘specialized experience and disabilities, broader inves- on separate and distinct is a reasonably raise an appellant fail to of subsection interpretation
valid by or stroke was caused allegation of both feet cannot that his loss of use inju- cold requirement for SMC related to his service-connected satisfy the 1114(i) agrees. loss of use of ry. for both the The Court in need of aid and both feet and reflects that Although the record the loss use attendance as result “left weak appellant sided[d] mentioned is not Because the both feet. limit deteriorating present, [with] ness *14 rate of SMC under entitled to a second and arm needed to ed use of left hand 1114(Z) based on the need for aid section 151) (R. at and wheelchair” propel [his] a result of the loss of and attendance as his inability propel related his that he feet, must affirm use of both Court (R. a stroke suffered in 1997 wheelchair to decision, insofar February Board’s 49), indicate an none of the documents Board denied entitlement as the benefits for his apply intent VA 1114(o). under section higher rate of SMC stroke, any way attribute the stroke addition, appellant is not In because injury. “Al to his service-connected cold higher under entitled to interpret a claim though the Board must 1114(o), argument his for an even section broadly, ‘the Board is ant’s submissions section higher up issues that were required conjure 1114(r)(l) is moot. not raised the claimant.’ Brokowski Shinseki, Vet.App. v. Secondary D. Service Connection West, Brannon v. two alternative ar- appellant The raises (1998)); also Robinson v. see Shinseki above, the guments for remand. As noted (Fed.Cir.2009) F.3d argues that remand is warranted appellant (“[C]laims in the support which have no the Board failed to consider because need not be considered record stroke, whether his non-service-eonnected Nicholson, Board.”); 20 Vet. Criswell recognized which the Board condition (2006) (“It logical follows App. 503-04 and affecting his need for aid no intent ly that where there can be found cold aggravated by his service-connected benefits, a claim for such apply for VA injury and should constitute a second enti- raised.”). reasonably benefits has not been section Id. tling condition under has not Accordingly, appellant because the Allen, (citing supra). He states at 22-26 record any identified documents the matter that should remand reasonably that raise a claim that his to “determine whether to enable the Board by his service-con aggravated stroke was of his service-connected loss use [his] injury, cold the Board did not err nected aggravates feet his non-service-connected theory of entitle by failing to address this aggravation and whether disabilities Robinson, ment to benefits. See Brokow him for an additional qualifies [SMC] Criswell, ski, appel If the supra. all 1114(£), (o), (r)(l)[,] award under cold lant believes that the residuals his 3.352(a).” argument, Id. at 26. At oral condition, he is injury aggravate his stroke three in the appellant pages identified RO, that claim at the pursue free to which, asserts, he proceedings, record of appeal any initiate an from adverse deter reasonably inju- raise a claim that his cold mination. ry his R. at aggravated stroke. See Higher E. Rate of SMC Under that 151. The countered 1114(p) Section previously did not raise argument second on a second- claim for service connection to a for remand is that he is entitled ary and that the documents relied on basis (p), rate under subsection statutory prohibition cause of the that “no allows for an intermediate rate or a full considered twice in the be[ ] de- termination,” rate where a appears veteran’s “service- it appel- connected disabilities require- exceed the lant’s overall service-connected condition ments for prescribed rates in exceeds the requirements of subsection Appellant’s this section.” Br. at 27-28. in that he has suffered both the loss of Secretary argues (p) use of both feet and signifi- is with such applicable was not to the appellant’s claim cant that he requires the aid at the time of the Board’s decision because and attendance of another. 3.350(f) does not specify the decision, In its only Board discussed appellant’s condition as one instanc- 1114(£) (o). Therefore, section it is not es which the next higher rate or an apparent the Board considered the may intermediate rate be awarded. Sec- potential applicability of 1114(p). *15 retary’s Br. at 22. This failure to consider the appellant’s eli- instance, In this the agrees Court gibility for a higher rate of SMC consti- appellant that the Board erred when it tutes remandable error. See AB v. failed to consider his entitlement to a high- Brown, (1993) 35, 6 Vet.App. (holding er rate of SMC under subsection (p). See original claimants on both claims and Derwinski, 589, v. 1 Vet.App.
Schafrath
claims for increased disability
“pre-
are
(1991) (holding
592-93
that the Board is
seeking
sumed to be
the maximum benefit
required to discuss in its decision all “po-
by
regulation”).
allowed
law and
tentially applicable” provisions of law and
persuaded
is not
by
Secretary’s
7104(a)).
regulation)
(citing
38 U.S.C.
argument
appellant
that the
is not entitled
Subsection (p) provides for half- or full-
higher
to a
(p) solely
rate under subsection
step
increases to the next
rate in because his condition is not one of the
subsections
for a veteran
provided
enumerated instances
in 38
requirements
whose condition exceeds the
3.350(f).
Nothing
C.F.R.
in the statute
rate,
of his current
but does not qualify for
or the regulation indicates that
the list
the next higher
rate. 38
1114(p).
3.350(f)
provided in
is intended to be
Here,
exclusive,
there
dispute
is no
Secretary provide
nor does the
favorably
Board
found that the appellant’s
any support for that
reading
regula-
“residuals
injury
of a cold
render
tion.
Occupational Safety
See Martin v.
Comm’n,
144,
wheelchair bound and result in
&
[him]
Health Review
499 U.S.
[his]
(1991)
get
1171,113
unable to
around
himself or
L.Ed.2d
(“
perform
daily
several
living,
‘[L]itigation positions’
activities
are not entitled to
including bathing, without
they
merely
aid and attend-
deference
appellate
when
are
ance of another.” R. at 4. It cannot
‘post
rea-
counsel’s
hoc rationalizations’
for
sonably
disputed
agency
be
that a veteran who
action advanced for the first time
court.”).
has suffered the loss of use of both feet
in the reviewing
The Court will
in
and is
need of
aid and attend-
therefore remand the matter to the Board
ance of another is more disabled than
to consider
the first instance whether
veteran who has suffered the loss of use
overall service-connected
require
disability picture
requirements
of both feet but does not
the aid
exceeds
1114(Z)
ap-
and attendance of another. While the
of section
such that he is entitled
pellant’s condition does not warrant
to an
intermediate rate or
full
assignment of the maximum
1114(p).
be-
rate under section
Although the Secre-
remand,
free to sub
in the determination.
On
argument
at oral
that the loss
tary agreed
argument
on
mit additional evidence
warrant aid
regularly
of both feet does
matters,
Board is
remanded
and the
attendance,5
that Mr.
the Board found
evi
any such relevant
required to consider
service-connected loss of
Breniser’s
Kay Principi,
v.
argument.
dence and
See
he
in need of
feet was such that
was
(2002)
that,
(stating
Vet.App.
two conditions
regular aid
remand,
the Board must consider addi
(l) (i.e.,
loss of both
listed
assessing
argument
tional evidence and
attendance).
regular aid and
feet and
sought);
entitlement to benefit
Kutscher
Thus,
reading of 38 U.S.C.
plain
under the
West,
Vet.App.
372-73
ousky v.
1114(o),
high-
Mr. Breniser is entitled to
order).
has
(per curiam
The Court
Yet,
majority
sanc-
today
er benefits.
meant to entail a
held that
remand is
“[a]
longstanding regulation, previously
tion a
justification
critical examination of the
isolation,” that is in
existing
“splendid
Derwinski, 1
the decision.” Fletcher v.
clear contravention of the statute. Brown
(1991).
The Board must
Gardner,
expeditiously, in accordance with
proceed
(1994) (noting
“splen-
(requiring Secretary
§ 7112
regulations
in which
ex-
did isolation”
VA
provide
“expeditious
treatment”
many years).
we should not
isted for
This
Court).
claims remanded
very
do for the
same reasons stated
*16
Brown v. Gardner.
V. CONCLUSION
Secretary recognizes
regulation
his
After consideration of the
statute,
contravenes the
and this is most
Secretary’s
and a re-
pleadings,
and the
need to
succinctly demonstrated
his
record,
February
view the
the Board’s
substitute words for those chosen
Con
5, 2009,
is AFFIRMED IN PART
decision
Although Congress uses the word
gress.
PART,
IN
and the vacat-
VACATED
“disability” throughout
1114 and
ed matter
is REMANDED for further
(and
only
its
uses the word “condition”
decision.
proceeding consistent with this
in
plural)
Congress really
that
meant to use
argues
SCHOELEN, Judge,
opinion
filed
“disability” instead of “condition.” Such
the Court.
re-drafting
legislation
should not be con
Peake,
280,
22
KASOLD,
Bradley
doned.
Judge,
opinion
filed an
Chief
‘
(2008) (“
in
“Congress expresses
its
concurring
part
dissenting
part.
in
tent
it chooses” and
through
language
KASOLD,
Judge, concurring in
Chief
choice of
in a statute is
that
words
part, dissenting
part:
therefore
deliberate
and reflective.’
Congress explicitly authorized in 38 (quoting Shoshone Indian Tribe v. United
(Fed.Cir.2004)
States,
1339,
benefits for veter-
364 F.3d
Cardoza-Fonseca,
ans with two “conditions” listed
subsec-
(quoting INS v.
statute,
421,
1207,
12, 436,
tions
of the same
433 n.
107 S.Ct.
U.S.
(1987))));
twice L.Ed.2d 434
see also
provided no “condition” is considered
United
3.352(a) (2011) (listing
person
adjust
that a normal
would be able to
5. See 38 C.F.R.
oneself,
aid,
inability
inability
criteria for
in need of "aid and attend-
without
to feed
oneself,
inability
nature,
ance”: such as the
to dress
to attend the wants of
and the inca-
clean,
inability
inability
keep
to
oneself
oneself).
pacity
protect
appliance
adjust
prosthetic
orthopedic
LaBonte,
751, 757,
Hines, Adm’r,
States v.
520 U.S.
117 to Frank T.
Veterans Ad-
(1997) (“[W]e
1994).
S.Ct.
L.Ed.2d 1001
(May
min.
Congress’s intent, if
in drafting
legislation,
assume
this
anything,
provide
reflects its intent to
ben-
meant.”); Gardner,
Congress
what
said
it
efits to our veterans based on their disabil-
supra
(rejecting
longstanding regulation
stated,
Succinctly
ities.
nothing
an
evinces
imposed
negligence
requirement
deny
intent to
a veteran needing aid and
statute);
that was not in the
Barrett v.
attendance due to a serious service-con-
States,
United
423 U.S.
nected disability such as loss of both feet
provide an indicating that stay proceedings, if Mr. further be mooted though this issue could negotiating they stages were in the final benefits under were awarded Breniser (o). remand but needed addi- joint motion for finalize such a motion. The tional time to joint filed a mo- following day, parties tion for remand. joint filed their motion for parties
As the expiration prior remand their filing deadline for Court-ordered law, stay no memoranda of there is need PEET, Appellant, R. Charles will therefore and the Court proceedings stay fur- deny parties’ joint motion SHINSEKI, Secretary of Eric K. proceedings. grant will also ther Court Affairs, Appellee. Veterans joint their motion for remand. 09-2323. No. foregoing, it is Upon consideration of Appeals States Court of United parties’ ORDERED that the October for Veterans Claims. stay proceed- further joint motion to ings is denied. It is further Oct. parties’ October ORDERED that the HAGEL, MOORMAN, Before GRANT- joint motion for remand is
SCHOELEN, Judges. ED. ORDER
PER CURIAM: 7, 2011, the or- September
On parties to submit memoranda of
dered 7, 2011. On October
law October