Veteranclaims’s Blog

August 22, 2017

Gazelle v. Shulkin, No. 2016-1932(Decided: August 22, 2017); Special Monthly Compensation; 38 U.S.C. § 1114(s)(1) (2012);

 

United States Court of Appeals for the Federal Circuit
______________________
FREDERICK C. GAZELLE,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1932
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2272, Chief Judge Robert N.
Davis, Senior Judge William A. Moorman, Judge Mary J.
Schoelen.
______________________
Decided: August 22, 2017
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
COURTNEY D. ENLOW, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN,
JR., BENJAMIN C. MIZER; MARTIE ADELMAN, BRIAN D.
GRIFFIN, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
2 GAZELLE v. SHULKIN
______________________
Before PROST, Chief Judge, O’MALLEY and WALLACH,
Circuit Judges.
WALLACH, Circuit Judge.
Appellant Frederick C. Gazelle appeals the decision of
the U.S. Court of Appeals for Veterans Claims (“Veterans
Court”), which affirmed the Board of Veterans’ Appeals
(“Board”) decision denying entitlement to special monthly
compensation under 38 U.S.C. § 1114(s)(1) (2012). See
Gazelle v. McDonald, 27 Vet. App. 461, 462–63 (2016).
We affirm.
BACKGROUND
Mr. Gazelle served in the U.S. Army from 1962 to
1965, during which time he incurred several serviceconnected
disabilities. See id. at 463. Mr. Gazelle now receives compensation for: (1) degenerative disc disease and joint disease of the cervical spine rated at twenty
percent; (2) degenerative disc disease and spondylosis of the thoracolumbar spine rated at twenty percent; (3) left upper extremity radiculopathy rated at ten percent; (4) left lower extremity radiculopathy rated at ten percent;
and (5) post-traumatic stress disorder. Id. In December 2009, a U.S. Department of Veterans Affairs (“VA”) decision review officer increased Mr. Gazelle’s
disability rating for his service-connected post-traumatic stress disorder to 100 percent. See J.A. 40, 46.
In 2010, Mr. Gazelle filed a Notice of Disagreement with the 2009 determination, alleging the VA failed to award him additional special monthly compensation
under § 1114(s)(1).1 See J.A. 48–49. Subsequently, in
1 In relevant part, § 1114(s)(1) states that special
monthly compensation may be awarded “[i]f the veteran
GAZELLE v. SHULKIN 3

2011, Mr. Gazelle was denied entitlement to special monthly compensation because he did not have additional service-connected “disabilities . . . independently ratable as [sixty percent] or more disabling.” J.A. 65. Instead of
adding together Mr. Gazelle’s additional serviceconnected disabilities at their respective amounts, the VA calculated the independent additional rating via the
combined ratings table pursuant to 38 C.F.R. § 4.25 (2010), which resulted in a combined rating of fifty percent. See J.A. 62, 65. In March of 2014, the Board affirmed the denial of entitlement to special monthly compensation using the same reasoning articulated by the VA. See J.A. 76–78 (applying 38 C.F.R. § 4.25).
Mr. Gazelle appealed the Board’s decision to the Veterans Court. The Veterans Court held “that consistent with the plain meaning of subsection 1114(s), the Board appropriately applied the combined ratings table to determine eligibility for [special monthly compensation] benefits,” and affirmed the Board’s March 2014 decision. Gazelle, 27 Vet. App. at 463; see id. at 471. Mr. Gazelle appeals the Veterans Court’s decision.
DISCUSSION
I. Standard of Review
The jurisdiction of this court to review decisions of the
Veterans Court is limited by statute. See 38 U.S.C.
§ 7292; Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir.
2002) (en banc), superseded on other grounds by statute,
Pub. L. No. 107-330, § 402(a), 116 Stat. 2820, 2832 (2002).
We “have exclusive jurisdiction to review and decide any
challenge to the validity of any statute or regulation or
has a service-connected disability rated as total, and
[] has additional service-connected disability or disabilities
independently ratable at [sixty] percent or more . . . .”
38 U.S.C. § 1114(s)(1).
4 GAZELLE v. SHULKIN
any interpretation thereof brought under [§ 7292], and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). “Except to the extent that an appeal . . . presents
a constitutional issue, [we] may not review (A) a
challenge to a factual determination, or (B) a challenge to
a law or regulation as applied to the facts of a particular
case.” Id. § 7292(d)(2). Because Mr. Gazelle challenges
the Veterans Court’s interpretation of § 1114, we have
exclusive jurisdiction pursuant to § 7292(c). “We review
statutory and regulatory interpretations of the Veterans
Court de novo.” Parrott v. Shulkin, 851 F.3d 1242, 1247
(Fed. Cir. 2017) (internal quotation marks and citation
omitted).
II. The Veterans Court Did Not Err in Interpreting
§ 1114(s)(1)
Mr. Gazelle challenges the Veterans Court’s statutory
interpretation of § 1114(s)(1). He avers that the Veterans
Court erred in affirming the Board’s denial of his special
monthly compensation because “[t]he only determination
dictated by the plain language of the second requirement
of § 1114(s)(1) is whether . . . independently rated additional
disabilities add up to [sixty] percent or more,”
which is a “binary” determination. Appellant’s Br. 9.
Accordingly, Mr. Gazelle states that “there simply is no
need to consider how multiple disabilities are capable of
being rated together in the VA system.” Id. at 12 (internal
quotation marks omitted). He argues that “[t]he
Veterans Court relied upon a misinterpretation of the
meaning of the phrase ‘additional disabilities independently
ratable at [sixty] percent or more’ because it
considered the language of 38 U.S.C. §§ 1155 and 1157
and the applicability of the provisions of 38 C.F.R. § 4.25”
in making its determination. Id. at 10. According to Mr.
Gazelle, he is entitled to special monthly compensation
under the proper interpretation of “additional disabilities
ratable at [sixty] percent or more.” Id. at 15–16.
GAZELLE v. SHULKIN 5
A. Principles of Statutory Interpretation
To determine whether the Veterans Court erred in reviewing
the VA’s interpretation of § 1114(s)(1), we review
the statute pursuant to a two-step Chevron analysis.
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842–43 (1984); see Guerra v. Shinseki, 642 F.3d
1046, 1049 (Fed. Cir. 2011) (applying Chevron deference
to the VA’s interpretation of § 1114(s)). When reviewing
an agency’s construction of a statute, we must first determine
“whether Congress has directly spoken to the
precise question at issue.” Chevron, 467 U.S. at 842. If
the answer is yes, then the inquiry ends, and we “must
give effect” to Congress’s unambiguous intent. Id. at 842–
43; see Sullivan v. Stroop, 496 U.S. 478, 482 (1990) (“If
the statute is clear and unambiguous that is the end of
the matter, for the court . . . must give effect to the unambiguously
expressed intent of Congress.” (internal quotation
marks and citation omitted)). We may find Congress
has expressed unambiguous intent by examining “the
statute’s text, structure, and legislative history, and apply
the relevant canons of interpretation.” Heino v. Shinseki,
683 F.3d 1372, 1378 (Fed. Cir. 2012) (quoting Delverde,
SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir.
2000)).
If Congress has not directly spoken to the precise
question at issue, we must consider “whether the agency’s
answer [to the precise question at issue] is based on a
permissible construction of the statute.” Chevron, 467
U.S. at 843. The agency’s “interpretation governs in the
absence of unambiguous statutory language to the contrary
or unreasonable resolution of language that is ambiguous.”
United States v. Eurodif S.A., 555 U.S. 305, 316
(2009) (citing United States v. Mead Corp., 533 U.S. 218,
229–30 (2001)). For the reasons provided below, we
conclude that § 1114(s)(1) is clear and unambiguous in its
direction to calculate special monthly compensation using
the combined ratings table.
6 GAZELLE v. SHULKIN
B. Subsection 1114(s)(1) Unambiguously Instructs the
Use of the Combined Ratings Table
When interpreting a statute, we “begin with the language
employed by Congress.” Engine Mfrs. Ass’n v. S.
Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)
(internal quotation marks and citation omitted). The
instant appeal focuses on § 1114(s)(1) because neither
party contests that the veteran in this case has a serviceconnected
disability rated as total. See Appellant’s Br.
10–11; see generally Appellee’s Br. Therefore, we limit
our analysis to whether there are “additional serviceconnected
disability or disabilities independently ratable
at [sixty] percent or more.” 38 U.S.C. § 1114(s)(1).
Congress did not explicitly define “independently” or
“ratable” in the text of § 1114(s)(1) and, thus, it has not
directly spoken to the precise question at issue. See
Chevron, 467 U.S. at 842. In the absence of an express
definition, we presume that Congress intended to give
those words their plain and ordinary meanings. See
Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995);
Nielson v. Shinseki, 607 F.3d 802, 805–06 (Fed. Cir.
2010). This ordinary meaning may be informed through
the use of dictionaries. See United States v. Rodgers, 466
U.S. 475, 479 (1984). The dictionary defines “independently”
as “without dependence on another: freely.”
Independently, Webster’s Third New International Dictionary
(1986). It defines “ratable” as “capable of being
rated or estimated.” Ratable, Webster’s Third New International
Dictionary (1986). Thus, the plain meaning of
the statute is that additional service-connected disability
or disabilities are not dependent on a service-connected
disability that is rated as total. Rather, as applied to Mr.
Gazelle’s case, his additional disability or disabilities
must be capable of being rated by the VA at sixty percent
or greater.
GAZELLE v. SHULKIN 7
Next, we consider whether Congress provided a method
for assessing whether there are “additional serviceconnected
disability or disabilities independently ratable
at [sixty] percent or more.” 38 U.S.C. § 1114(s)(1). The
language of the statute does not identify the method the
VA should use to rate multiple disabilities. However, “[i]n
determining whether Congress has specifically addressed
the question at issue, a reviewing court should not confine
itself to examining a particular statutory provision in
isolation.” FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 132 (2000). Rather, we should “consider not
only the bare meaning of each word but also the placement
and purpose of the language within the statutory
scheme.” Barela v. Shinseki, 584 F.3d 1379, 1383 (Fed.
Cir. 2009) (citations omitted).
It is also presumed that Congress “legislate[s] against
the backdrop of existing law.” Morgan v. Principi, 327
F.3d 1357, 1361 (Fed. Cir. 2003). Thus, determining
Congress’s intended methodology for calculating these
disabilities requires us to examine the existing statutes
and regulations. As explained below, these statutes and
regulations demonstrate that, at the time the statue was
enacted, the VA’s only method of rating multiple disabilities
was to combine the ratings using the combined ratings
table. Because Congress was fully aware of this,
Congress unambiguously has provided the method for
calculating disabilities under § 1114(s)(1).
In 1917, Congress authorized the VA to establish “[a]
schedule of ratings of reductions in earning capacity from
specific injuries or combination of injuries.” Act of Oct. 6,
1917, ch. 105, § 302(2), 40 Stat. 398, 406.2 Pursuant to
2 This provision was codified and later redesignated
as 38 U.S.C. § 1155. See Veterans’ Benefits Act of 1957,
Pub. L. No. 85-56, § 355, 71 Stat. 83, 103; Department of
8 GAZELLE v. SHULKIN
this grant, the VA developed the combined ratings table
in 1925 to rate multiple disabilities. See J.A. 81. This
table did not function via simple addition of disability
ratings; rather, “[b]ecause disability compensation is
based on the entire person of the veteran, the ratings
are . . . combined into a single rating . . . to determine the
overall impairment of the veteran.” Amberman v.
Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009). This
approach of providing a combination of ratings was again
pursuant to regulations issued in 1933, see Exec. Order
No. 6156, Part IV ¶ I (1933) (entitled “Veterans Regulation
No. 1(a) Entitlement to Pensions”),3 and again in
1945, see J.A. 82. In 1950, the VA yet again authorized
the combination of ratings using the “tables and rules
prescribed in the 1945 Schedule” when a veteran had “two
or more [service-connected compensable] disabilities.”
J.A. 87 (alteration in original); see J.A. 90–91 (explaining
that the 1950 regulation is now numbered as 38 C.F.R.
§ 3.323(a)). In 1958, Congress unified various statutory
provisions affecting the VA into Title 38 of the United
States Code. See Act of Sept. 2, 1958, Pub. L. No. 85-857,
72 Stat. 1105, 1105. This restructuring directed the VA to
“provide for the combination of ratings and pay compensation
at the rates prescribed in subchapter II [Wartime
Disability Compensation].” Id. § 357, 72 Stat. at 1125.
In 1960, when Congress added the current subsection
§ 1114(s) to subchapter II of Title 38, see Act of July 14,
1960, Pub. L. No. 86-663, 74 Stat. 528, 528, a combined
ratings table had already been in use, see Act of Sept. 2,
Veterans Affairs Codification Act, Pub. L. No. 102-83,
§ 5(a), 105 Stat. 378, 406 (1991).
3 This provision was codified and later redesignated
as 38 U.S.C. § 1157. See Veterans’ Benefits Act § 357, 71
Stat. at 103; Department of Veterans Affairs Codification
Act § 5(a), 105 Stat. at 406.
GAZELLE v. SHULKIN 9
1958 § 314, 72 Stat. at 1120−21. Subsection 1114(s)(1)’s
special monthly compensation was added to a schema
that Congress intended to be effectuated while
“provid[ing] for the combination of ratings,” as they stated
in plain language. Id. § 357, 72 Stat. at 1125. Accordingly,
based on this existing law and our canons of statutory
construction, it is evident that Congress intended for
§ 1114(s)(1) to utilize the combination of ratings and pay
compensation using the combined ratings table. See id.;
Morgan, 327 F.3d at 1361.
Additional support for this interpretation of
§ 1114(s)(1) is found by looking to its overall placement
within Title 38 and the accompanying § 1155, “Authority
for schedule for rating disabilities,” and § 1157, “Combination
of certain ratings.” See Barela, 584 F.3d at 1383
(noting that statutory interpretation requires consideration
of “not only the bare meaning of each word but also
the placement and purpose of the language within the
statutory scheme” (citing Bailey v. United States, 516 U.S.
137, 145 (1995))). While step one of Chevron may start by
analyzing the plain language of the statute, it necessarily
follows that the meaning of the language, “plain or not . . .
depends on context.” See id. (quoting Brown v. Gardner,
513 U.S. 115, 118 (1994)). Taken in context, accompanying
§§ 1155 and 1157 support our interpretation of
§ 1114(s)(1). Section 1155 authorizes the Secretary to
adopt and apply a ratings schedule to address disabilities
arising from “specific injuries or combination of injuries,”
38 U.S.C. § 1155, and § 1157 directs that “the combination
of ratings” apply to “the rates prescribed in subchapter
II of this chapter,” id. § 1157. Subsection 1114(s) was
thereafter placed into, and enacted as part of, subchapter
II. See Act of July 14, 1960, 74 Stat. at 528. As such, the
accompanying statute structure makes clear that §§ 1155
and 1157 apply to the entirety of § 1114. See Heino, 683
F.3d at 1378 (allowing courts to consider a statute’s
structure under Chevron step-one). Accordingly, we hold
10 GAZELLE v. SHULKIN
that § 1114(s)(1) unambiguously requires the veteran’s
additional disabilities be rated at least at sixty percent
based upon the combined ratings table and not the addition
of individual disability ratings as argued for by Mr.
Gazelle.4
CONCLUSION
We have considered Mr. Gazelle’s remaining arguments and find them unpersuasive. Accordingly, the decision of the U.S. Court of Appeals for Veterans Claims is AFFIRMED
COSTS
Each party shall bear its own costs.
4 Mr. Gazelle does not contest the factual finding of
a combined rating of his disabilities at fifty percent. See
generally Appellant’s Br. However, even if Mr. Gazelle
were to contest this factual finding on appeal, we lack
jurisdiction to review challenges to factual determinations
or to reweigh the evidence that led to those determinations.
See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed.
Cir. 2010) (“The evaluation and weighing of evidence and
the drawing of appropriate inferences from it are factual
determinations committed to the discretion of the factfinder.
We lack jurisdiction to review these determinations.”).

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