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Lionel Guerra v. Eric K. Shinseki

April 29, 2011

LIONEL GUERRA, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-223, Judge William A. Moorman.

The opinion of the court was delivered by: Bryson, Circuit Judge.

Before BRYSON, GAJARSA, and MOORE, Circuit Judges.

Opinion for the court filed by Circuit Judge BRYSON.

Dissenting opinion filed by Circuit Judge GAJARSA.

This case requires us to construe one of the statutes providing benefits for disabled veterans. The issue on appeal is whether the Court of Appeals for Veterans Claims ("the Veterans Court") correctly interpreted a statute that provides additional monthly compensation to certain severely disabled veterans. We hold that it did, and we affirm.

Pursuant to congressional direction, the Department of Veterans Affairs ("DVA") has promulgated a "disability ratings schedule" that it uses to determine the level of a veteran's disability and thus the amount of the veteran's monthly disability benefits. The ratings in the table are based on the agency's assessment of the reduction in the average veteran's earning capacity that results from various service-connected injuries, diseases, or conditions.

38 U.S.C. § 1155; 38 C.F.R. § 4.1; see Guillory v. Shinseki, 603 F.3d 981, 983 (Fed. Cir. 2010). A particular disability can be rated in ten percent increments from 0% to 100% (total disability). The rating assigned to a particular disability under the ratings table is referred to as the schedular rating. The veteran's schedular rating governs the veteran's entitlement to compensation at the statutory levels provided in subsections 1114(a)--(j). A veteran rated at 10% has, on average, 90% of the earning capacity of a nondisabled individual and receives compensation at the rate established in subsection 1114(a). A veteran who is rated at 100% is deemed to be totally disabled and receives compensation at the rate established in subsection 1114(j).

Some disabled veterans have multiple service-connected disabilities. To determine the veteran's overall disability rating in such cases, the DVA rates each disabling condition individually (unless otherwise provided in the ratings schedule). 38 C.F.R. § 4.25; see Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009). The DVA then combines all the individual ratings, as directed by the "combined ratings table," 38 C.F.R. § 4.25, to calculate the veteran's combined disability rating. Compensation for the combined rating is then calculated according to the statutory schedule in section 1114.

In addition to having a schedular rating of 100%, a veteran can also be rated as totally disabled, and thus entitled to benefits at the statutory level for total disability, if the veteran is unable to maintain gainful employment as a result of service-connected disability. In that case, even if the veteran does not qualify for a schedular rating of 100%, the Secretary can rate the veteran as "totally disabled based on individual unemployability," a rating referred to as TDIU. 38 C.F.R. § 4.16(b). If the veteran's claim for a total disability rating predicated on TDIU is based on "one . . . disability," that disability must be ratable at 60% or more under the rating schedule. For the purpose of TDIU, "one disability" includes multiple disabilities resulting from a single accident and multiple disabilities affecting a single bodily system. Id. § 4.16(a).

Some exceptionally disabled veterans who are rated as totally disabled are entitled to extra monthly compensation over and above the "total" rate provided in 38 U.S.C. § 1114(j). This case requires us to construe one of those special monthly compensation provisions, 38 U.S.C. § 1114(s). That statute provides $320 in additional monthly compensation above the rate for total disability to a veteran with "a service-connected disability rated as total" if the veteran either has another independently rated disability or combination of disabilities rated at 60%, or is permanently housebound by reason of service-connected disability.

I

Appellant Lionel Guerra served on active duty in the United States Marine Corps from 1966 to 1968 and suffered service-connected injuries. Most of his injuries resulted from a single combat incident. The regional office awarded Mr. Guerra a 70% rating for an upper-extremity gunshot wound, a 70% rating for post-traumatic stress disorder, a 40% rating for injuries to his left leg and thigh, a 40% rating for injuries to his right leg and thigh, and a 30% rating for neuropathy. None of his disabilities is individually rated at 100%, but his individually rated disabilities combine to a rating of 100%,

i.e., total disability. His rating of total disability is not based on TDIU, however.

The Veterans Court held that Mr. Guerra did not meet the threshold requirement for special monthly compensation under subsection 1114(s) because none of his disabilities is independently rated as total. In construing the statute, the court followed its earlier decision in Bradley v. Peake, 22 Vet. App. 280, 289-90 (2008), in which the court held that a veteran with a schedular rating of total disability must have a single disability rated at 100% in order to qualify for benefits under subsection 1114(s).*fn1 The court rejected the argument that a veteran is entitled to benefits under subsection 1114(s) if the veteran suffers from several disabilities, no one of which is rated at 100%, even if the veteran's combined disability rating is 100%.

Mr. Guerra appeals, contending that benefits under subsection 1114(s) should be available to veterans who are rated as totally disabled, regardless of whether the veteran has a single disability rated at 100% or a combined rating of 100% ...


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