Gazelle v. Shulkin

• Decision Date: 22 August 2017
• Docket Number: 2016-1932
• Citation: 868 F.3d 1006
• Parties: Frederick C. GAZELLE, Claimant-Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

868 F.3d 1006

Frederick C. GAZELLE, Claimant-Appellant

v.David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee

2016-1932

United States Court of Appeals, Federal Circuit.

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.

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 service-connected 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 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 service-connected 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 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.

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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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, 104 S.Ct. 2778. If the answer is yes, then the inquiry ends, and we "must give effect" to Congress's unambiguous intent. Id. at 842–43, 104 S.Ct. 2778 ; see Sullivan v. Stroop , 496 U.S. 478, 482, 110 S.Ct. 2499, 110 L.Ed.2d 438 (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, 104 S.Ct. 2778. 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, 129 S.Ct. 878, 172 L.Ed.2d 679 (2009) (citing United States v. Mead Corp. , 533 U.S. 218, 229–30, 121 S.Ct. 2164, 150 L.Ed.2d 292 (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.

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, 124 S.Ct. 1756, 158 L.Ed.2d 529 (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 service-connected 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 service-connected 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, 104 S.Ct. 2778. 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, 115 S.Ct. 788, 130 L.Ed.2d 682 (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, 104 S.Ct. 1942, 80 L.Ed.2d 492 (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.

Next, we consider whether Congress provided a method for assessing whether there are "additional service-connected disability or disabilities independently ratable at [sixty] percent...