Breniser v. Shinseki
| Decision Date | 19 September 2011 |
| Docket Number | 09-0728 |
| Parties | George W. Breniser, Appellant, v. Eric K. Shinseki, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Argued June 14, 2011.
On Appeal from the Board of Veterans' Appeals.
Michael P. Horan, with whom Linda E. Blauhut and Jennifer A Zajac were on the brief, all of Washington, D.C., for the appellant.
Leslie C. Rogall and Michael A. Carr, with whom Will A. Gunn General Counsel; and R. Randall Campbell, Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.
Before KASOLD, Chief Judge, and LANCE and SCHOELEN, Judges.
The appellant, George W. Breniser, appeals through counsel a February 5, 2009, Board of Veterans' Appeals (Board or BVA) decision in which the Board denied his claim for entitlement to a higher rate of special monthly compensation (SMC) on account of being in need of the aid and attendance of another person or on account of being housebound.[1] Record of Proceedings (R.) at 3-12. Panel consideration is required to determine whether a veteran who is receiving SMC for the loss of use of both feet under 38 U.S.C. § 1114(1) is entitled to a higher rate of SMC under 38 U.S.C. §§ 1114(o), (p), or (r) based on his need for aid and attendance, when such need arises out of the loss of use of both feet. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Because section 1114(o) prohibits a "condition from being considered twice" in subsections (1) through (n) when determining whether a veteran is entitled to a higher rate of SMC under subsection (o), and the Court defers to the Secretary's reasonable interpretation of subsection (o) as requiring determinations to be based upon separate and distinct disabilities, the Court concludes that a claimant cannot establish entitlement to a higher rate of SMC under section 1114(o) – unless the claimant's need for aid and attendance arises from a disability other than that for which the claimant is already in receipt of SMC. Hence, the Court must affirm that part of the Board's decision that concluded that the appellant did not meet the requirements for a higher rate of SMC on account of the loss of use of both feet and being in need of the aid or attendance of another person as a result of the loss of use of both feet. 38 U.S.C. § 1114(1) and (o). However, because the Court concludes that the Board erred by failing to consider whether the appellant is entitled to a higher rate of SMC pursuant to 38 U.S.C. § 1114(p), the Court will remand the matter for further proceedings consistent with this decision.
The appellant served on active duty in the U.S. Army from January 1949 to June 1952. R. at 766. He was receiving compensation for amputation of his left middle finger; a shrapnel wound scar on his chin and a biopsy scar for right gastrocnemius; cold injury to both feet, with plantar fasciitis and Raynaud's phenomenon, evaluated as 30% disabling, from April 1998 to May 2007; and his cold injury for both feet was changed to loss of use of both feet as residuals of cold injury, evaluated as 100% disabling, effective May 2007. R. at 72-73, 194-95, 546-47, 775. In 2003, he was granted a total disability rating based on individual unemployability effective October 15, 2001. R. at 377-81. In July 2008, the regional office (RO) granted entitlement to SMC based on loss of use of both feet pursuant to 38 U.S.C. § 1114(l), effective May 14, 2007, as well as entitlement to automobile and adaptive equipment and specially adapted housing. R. at 68-74.
In its February 5, 2009, decision here on appeal, the Board denied the appellant's claim for entitlement to a higher rate of SMC based on the need for aid and attendance or on account of being housebound. R. at 3-12. The Board noted the appellant's argument that "his bilateral leg disabilities, along with . . . nonservice-connected residuals of a stroke and decreased vision have rendered him wheelchair bound and requir[e]" aid and assistance of another person such that he is entitled to a higher rate of compensation. R. at 6. The Board noted that "as the veteran is already in receipt of [SMC under 38 U.S.C. § 1114(l)], what he seeks by this appeal is an additional, higher rate of [SMC] under 38 U.S.C. § 1114(o)." R. at 7. The Board stated that the higher rate of SMC under section 1114(o) R. at 8. Thus, although the evidence showed that the appellant was wheelchair bound and required the assistance of another, because SMC was already in effect for the loss of use of both feet under section 1114(l), the Board stated that the question is whether the need for aid and attendance "is based upon a service-connected disability other than the bilateral disability of the feet." R. at 8-9. The Board discussed the appellant's service-connected amputated finger and residual scar, and found that the evidence did not demonstrate that these disabilities rendered him "so incapacitated that he requires care or assistance." R. at 9-10. The Board also discussed the appellant's non-service-connected conditions and stated that "[w]hile it is likely that these conditions combine to result in the veteran's need for aid and attendance, because they are not service-connected disabilities[, ] the assignment of [SMC] is not warranted." R. at 10. The Board concluded that "although the veteran technically requires aid and attendance, it is not required for a [service-connected] disability that is separate and distinct from the loss of use of the feet and the veteran is therefore barred from receiving additional benefits." Id. Finally, the Board found that since the compensation under section 1114(l) was greater than the rate for SMC based on housebound status under section 1114(s), the claim under section 1114(s) was moot. R. at 11.
The pro se appellant appealed to this Court on February 28, 2009, and filed an informal brief in July 2009. After the case was assigned to a panel, the appellant obtained counsel, withdrew his informal brief, and substituted a formal brief.
On January 26, 2011, the appellant informed the Court that on January 7, 2011, VA notified him that he had been awarded a 60% disability rating for service-connected hearing loss, a 10% disability rating for tinnitus, and a higher level of SMC based on the 60% rating, effective March 29, 2010. The Court subsequently ordered the appellant to clarify his arguments and identify the subsection of 38 U.S.C. § 1114 under which was he granted a higher rate of SMC.
On February 8, 2011, the appellant responded that he had been awarded a half-step increased rate of SMC under 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(3) (2010), and asserted that this award did not moot his appeal to the Court. In a February 23, 2011, response, the Secretary agreed that the award of increased SMC under subsection (p) did not moot the appellant's arguments. The Secretary noted, however, that if the appellant disagrees with the level of SMC assigned in the January 7, 2011, decision, his remedy would be to file a Notice of Disagreement with the January 7, 2011, decision.
The appellant asks the Court to reverse the Board's decision because he asserts that he is entitled to a higher rate of SMC under the plain and unambiguous language of 38 U.S.C. § 1114. Appellant's Substitute Brief (Br.) at 8-21. The appellant argues, pursuant to section 1114(o), that he is entitled to the maximum rate of SMC because he satisfies the criteria for two rates under section 1114 (l). Id. at 20-21. The appellant contends that his first entitling "condition" is the loss of use of both feet and that his second entitling "condition" is that "his service-connected loss of use of both feet[] make him so helpless that he requires the regular aid and attendance of another person." Id. at 19. Because he is entitled to two rates of SMC under section 1114(l), he argues that he is thus entitled to the higher rate of SMC under section 1114(o) and the even higher rate under 1114(r)(1). Id. at 20-21. The appellant also argues that the Secretary's implementing regulation, 38 C.F.R. § 3.350(e)(3) (2011), is legally invalid because it ignores the plain language of section 1114(o) by treating the terms "disability, " "condition, " and "conditions" synonymously. Id. at 9-10, 13-16.
In the alternative, he argues that remand is warranted because the Board failed to consider whether his non-service-connected stroke, which the Board recognized as a condition affecting his need for aid and attendance, is aggravated by his service-connected cold injury and should constitute a second entitling condition under section 1114(o). Id. at 22-26 (citing Allen v. Brown, 7 Vet.App. 439 (1995) (en banc)). He states that remand is warranted to enable the Board to "determine whether [his] service-connected loss of use of his feet aggravates his non-service-connected disabilities and whether this aggravation qualifies him for an additional [SMC] award under [38 U.S.C.] § 1114(l), (o), (r)(1)[, ] and [38 C.F.R.] § 3.352(a)." Id. at 26.
His second argument for remand is that the Board failed to consider whether he is entitled to a higher rate under subsection (p), which allows for an intermediate or full higher rate where a "veteran's service-connected disabilities exceed the requirements for any of the rates prescribed in...
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