Gary D. Bradley v. James B. Peake

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 06-1854

GARY D. BRADLEY , APPELLANT ,

V.

JAMES B. PEAKE , M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued July 24, 2008 Decided November 26, 2008)

Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.

Debra L. Bernal, with whom Paul J. Hutter, Acting General Counsel; R. Randall Campbell,

Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of

Washington, D.C., were on the brief for the appellee.

Before KASOLD, MOORMAN, and DAVIS, Judges.

KASOLD, Judge: Vietnam War veteran Gary D. Bradley appeals through counsel two

separate March 3, 2006, decisions of the Board of Veterans' Appeals (Board) that (1) determined that

there was no clear and unmistakable error (CUE) in an August 1994 regional office (RO) rating

decision assigning an effective date of December 16, 1987, for the grant of a separate compensable

rating for shell fragment wounds of the right knee and the left axillary/shoulder area; (2) denied an

earlier effective date of November 21, 1969, for residual scarring of the left buttock, the right

buttock, the right thigh, the right wrist, and injuries to muscle group (MG) XIII for the left thigh, MG

VII for the distal left forearm, MG VII for the right lower arm/wrist, MG XII for the left ankle, MG

II for the left shoulder/axillary area, MG XXI for the left chest, and MG XI for the right lower leg;

(3) denied an earlier effective date of June 8, 1992, for residual scarring of the right elbow, the left

elbow, left forearm, right inner leg, left ankle, and left lower chest; (4) denied a disability

compensation rating in excess of 10% for residual scarring of the right buttock, left buttock, right

thigh, left forearm/wrist, left thigh, left lower leg/ankle/left foot, right lower leg, right knee area, left

lateral chest wall, left shoulder/axillary area, and right lower arm/wrist; (5) denied a disability

compensation rating in excess of 10% for injuries to MG XII right thigh, MG X left foot, MG XIII

left thigh, MG VII left distal forearm, MG VII right wrist, MG XII left ankle, MG XXI left chest, and

MG XI right lower leg; (6) denied a disability compensation rating in excess of 20% for injuries to

MG XVII for the right buttock, MG XVII for the left buttock, and MG II for the left shoulder/axillary

area; (7) denied entitlement to special monthly compensation (SMC); and (8) denied entitlement to

service connection for chronic pain syndrome. For the reasons stated below, the decision of the

Board will be affirmed in part, and set aside in part, reversed in part, and several matters remanded

for further adjudication.

I. BACKGROUND

Mr. Bradley served on active duty with the U.S. Army from February 1968 to November

1969, including service in Vietnam. On August 29, 1969, he sustained multiple shell fragment

wounds (SFWs) to his chest, legs, arms, and his right ear from a "booby trap" explosion. Record (R.)

at 153, 174. As a result of these wounds, Mr. Bradley received a Purple Heart. R. at 83.

In December 1969, Mr. Bradley applied for compensation and pension for "M.F.W. [multiple

fragment wounds] both LEGS, both ARMS [,] left chest & a peice [sic] of Rt. Lobe of ear taken off

8-28-69." R. at 191-92. Based upon skin and orthopedic examinations in 1970, a November 1970

regional office (RO) decision awarded Mr. Bradley a 10% disability compensation rating for SFWs

of his left ankle and foot, a 10% disability compensation rating for tender and painful scars of his

left thigh, with a retained foreign body, and a noncompensable rating for multiple scars of both legs,

both arms, and his left lower chest, effective from November 21, 1969. R. at 219-20. Mr. Bradley

underwent additional medical examinations in August and September 1971. R. at 247, 271-72.

After these examinations, the Secretary issued a September 1971 rating decision that determined that

the additional examinations did not warrant a change in the appellant's rating. R. at 250. Subsequent

rating decisions issued in 1976 and 1977 also confirmed the initial disability ratings. (R. at 328, 348,

367, 373, 397).

In July 1983, the RO continued the ratings for the initial service-connected injuries. It also

2

awarded Mr. Bradley a 20% disability compensation rating for SFWs to his right buttock, a 20%

disability rating for his left buttock, and a 10% disability rating for his right quadriceps, all effective

March 25, 1983. Mr. Bradley also received a 30% disability compensation rating for post-traumatic

stress disorder (PTSD), effective March 25, 1983. In August 1985, the RO assigned Mr. Bradley a

single 10% disability compensation rating for multiple scars of both legs, both arms, and his left

lower chest, effective from August 1984. In June 1991, the RO increased Mr. Bradley's disability

rating for PTSD from 30% to 70% and awarded him total disability for individual unemployability

(TDIU), effective December 1987. A Board decision in January 1997 changed the effective date

from December 1987 to March 25, 1983, for both PTSD and TDIU. Additionally, the 1997 Board

decision determined that there was no CUE in the rating decisions of November 1971, June 1971,

September 1971, April 1973, February 1976, December 1976, February 1982, and November 1982,

for the ratings assigned to Mr. Bradley's service-connected injuries. In August 1994, Mr. Bradley

received additional disability compensation awards of 10% for residuals of SFWs to his right knee,

and 10% for a gunshot wound to his left shoulder, both effective December 1987.

In May 1999, Mr. Bradley filed a Notice of Disagreement (NOD) to the January 1999 RO

decision that reopened but denied an increased rating claim for multiple scar injuries to his left

elbow, left forearm, right leg, right arm, left leg and left lower chest. Subsequently, an October 1999

Statement of the Case (SOC) awarded separate 10% disability compensation ratings for scars to Mr.

Bradley's lower chest, left ankle, right elbow, right inner leg, left forearm, and left elbow, with an

effective date of May 31, 1994.1 In January 2000, Mr. Bradley raised in an NOD to the January 1999

RO decision, and the October 1999 SOC, the Secretary's failure to adjudicate SMC benefits which

the RO denied in an October 2000 decision. Following an appeal of the Board's assignment of an

effective date of June 1992 for the disability ratings for his left elbow, left forearm, right inner leg,

right elbow, left ankle, and left lower chest, and after the Court's grant of a joint remand based upon

Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 106-475, 114 Stat. 2096 (codified in part

at 38 U.S.C. § 5103), a July 2003 rating decision awarded additional disability compensation ratings

1

The October 1999 SOC modified the August 1985 RO decision – which previously awarded a single 10%

disability compensation rating for the multiple scars of Mr. Bradley's legs, arms, and lower chest – and awarded

individual ratings for the left chest, left ankle, right elbow, right inner leg, left forearm and left elbow. A December 2001

Board decision changed the effective date from May 31, 1994, to June 8, 1992, for the scar ratings.

3

of 10% for scars to Mr. Bradley's buttocks and right thigh, and a noncompensable rating for his right

ear, all effective from February 24, 2000. In January 2005, in response to Mr. Bradley's November

2003 NOD to the RO's July 2003 decision, a decision review officer assigned ratings for various

muscle group injuries including a 20% disability compensation rating for left axillary area

(previously claimed as a left-shoulder injury), and 10% disability compensation ratings for the left

forearm, the right forearm/arm/wrist, left ankle, left thigh, and lateral chest. The RO also awarded

an additional 10% disability compensation rating for scars of Mr. Bradley's right wrist. The January

2005 rating decision reflects that Mr. Bradley received ratings for 13 compensable scars and 10

separate muscle group injuries. The decision notes that he was granted individual unemployability

from March 25, 1983, until June 8, 1992, and that he was granted a 100% combined rating from June

8, 1992.

Mr. Bradley appealed to the Board the effective dates and disability compensation ratings for

the multiple scarring and muscle injury awards, as well as the denial of SMC and service connection

for chronic pain syndrome. The Board issued two decisions on March 3, 2006, denying all his

claims. On appeal to the Court, Mr. Bradley argues that the Board erred by: (A) considering and

deciding a request for revision of the August 1994 RO decision based on CUE that Mr. Bradley

asserts he never made; (B) not assigning an earlier effective date for all his service-connected scars

and muscle injuries; (C) not awarding a separate disability compensation rating for each scar injury

and each muscle injury; (D) not awarding SMC; (E) denying service connection for his chronic pain

syndrome; and (F) providing an inadequate statement of reasons or bases for the denial of service

connection for his chronic pain syndrome.

The Secretary suggests that a partial remand is in order so that he can evaluate whether Mr.

Bradley may be awarded a separate disability compensation rating for each separate scar, but refutes

the assignment of separate ratings for his muscle injuries, and further argues that the remainder of

the Board's findings are plausible and should be affirmed.

II. ANALYSIS

A. CUE in the August 1994 RO Decision

Mr. Bradley argues that the Board erred in addressing whether there was CUE in the August

1994 RO decision that assigned December 16, 1987, as the effective date for service connection for

4

his right knee and left axillary/shoulder area, because he never submitted a request for revision based

on CUE. The record on appeal contains no specific request by Mr. Bradley for revision of the

August 1994 RO decision, although a September 1994 letter from the RO to Mr. Bradley states that

the claim for CUE submitted by his attorney could not be accepted as a valid CUE claim because "it

is not specific as to the error in fact or law." R. at 1375. The record contains no NOD or SOC

associated with the September 1994 letter.

Nevertheless, without explanation, a March 2005 RO decision addressed the allegation of

CUE in the August 1994 RO decision. On October 18, 2005, Mr. Bradley filed an NOD to this

decision denying CUE in the August 1994 RO decision. R. at 354. However, no SOC was issued

in response to Mr. Bradley's NOD, although an SOC dated June 21, 2005, addresses the issue of

entitlement of an earlier effective date based upon "difference of opinion" citing 38 C.F.R. § 3.105(b)

(2008), and includes the conclusion that "[t]here is no evidence of clear and unmistakable error, nor

is there evidence of an earlier unadjudicated claim" with regard to his right knee and left axillary

area/shoulder. R. at 2634-35. In addition, an SOC dated September 14, 2005, includes similar

language. Yet both of these SOCs were issued before Mr. Bradley filed his October 18, 2005, NOD

to the March 2005 RO decision on the issue of CUE in the August 1994 decision. In an October 18,

2005, letter in lieu of a VA Form 9, Substantive Appeal, Mr. Bradley stated that "[t]he statement of

the case does not explain why § 3.105(a) [revision based on CUE] is not applicable, it merely

declares that matter as fact." R. at 3347.

In his brief, the Secretary argues that Mr. Bradley abandoned his administrative appeal of

CUE in the August 1994 RO decision by not specifically arguing it on appeal. However, at oral

argument, the Secretary contended that Mr. Bradley's Substantive Appeal, which argues that he was

"entitled to revision of the prior decisions of the VA which failed to note and award disability

compensation for all of the disabilities suffered" upon discharge from service, (R. at 3349) (emphasis

in original), should be read broadly to constitute his presentment of the issue on appeal. The

Secretary could not identify, however, Mr. Bradley's arguments made on this matter to the RO or the

Board.

Once a claimant files a timely NOD to an RO decision and a disagreement still exists after

further development, the Secretary must prepare an SOC. 38 U.S.C. § 7105(b)(1), (d)(1). The

5

failure to issue an SOC in response to a timely filed NOD leaves the claim in an unadjudicated,

pending, nonfinal status. Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (holding that where the

VA failed to furnish the veteran with an SOC, the RO decision did not become final). In this

instance, Mr. Bradley filed a timely NOD on October 18, 2005, specifically contesting the March

2005 RO decision denying an earlier effective date for various scars based upon an allegation of

CUE in an August 1994 decision. However, the record contains June and September SOCs that

conclude without further explanation that no CUE existed, and the record does not contain an SOC

issued after Mr. Bradley's October 2005 NOD.

Succinctly stated, the procedural posture of this case is confusing and the Board's statement

of reasons or bases inadequately addresses this matter, frustrating judicial review. See Allday v.

Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable

a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in

this Court"). Accordingly, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998)

("[W]here the Board has incorrectly applied the law, failed to provide an adequate statement of

reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the

appropriate remedy."); Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (noting that "an inadequate

record frustrates judicial review"); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985) ("[I]f the reviewing court simply cannot evaluate the challenged action on the basis of the

record before it, the proper course, except in rare circumstances, is to remand to the agency for

additional investigation or explanation."); Occidential Petroleum Corp. v. SEC, 873 F.2d 325, 347

(D.C. Cir. 1989) ("The proper course in a case with an inadequate record is to vacate the agency's

decison and to remand the matter to the agency for further proceedings."); Falk v. West, 12 Vet.App.

402, 405 (1999) (same).

B. Earlier Effective Date

1. Initial Claim

Mr. Bradley argues that because each and every injury existed upon his discharge from

service, the effective date for all his service-connected scars and muscle injuries should be

November 21, 1969, the date of his original service-connection claim. He contends that the

disability ratings for scars and injuries awarded after November 1970 constituted part of his initial

6

claim for compensation, and were not the result of new claims for increased compensation based

upon his condition worsening. His argument is not supported by the record or the law.

The November 1970 RO decision addressed his initial claim for injuries to both legs, both

arms, right earlobe, and left chest, and awarded a 10% disability rating for painful scars to his left

thigh with a retained foreign body, and a 10% disability compensation rating for shell fragment

wounds to his left ankle and foot. This RO decision also awarded a noncompensable rating for

multiple scars to both legs, both arms, and the left lower chest, and noted healed scars to his lower

extremities specifically refering to a November 1969 examination. In sum, the 1970 RO decision

addressed Mr. Bradley's November 1969 claim for disabilities arising from the booby trap explosion

sufficiently for him to deduce that his claim had been adjudicated. Compare Ingram v. Nicholson,

21 Vet.App. 232, 247 (2007) (holding that "an RO decision may constitute an adjudication of a claim

where the RO decision addresses the claim in a manner sufficient for a claimant to deduce that the

claim was adjudicated") with Deshotel v. Nicholson, 457 F.3d 1258, 1261 (2006) ("Where the

veteran files more than one claim with the RO at the same time, and the RO's decision acts

(favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the

second claim is deemed denied, and the appeal period begins to run."). Mr. Bradley could have

appealed the November 1970 decision, but he did not, and it became final, subject only to attacks

based on CUE with regard to its effective date. See 38 U.S.C. §§ 5109A, 7105(a), (c), 7111; 38

C.F.R. §§ 3.105(a), 20.302(a) (2008), 20.1403 (2008).

2. Revision Under 38 C.F.R. § 3.105(b)

Mr. Bradley alternatively argues that RO decisions in June 1983, August 1985, June 1994,

October 1999, July 2003, and January 2005, which awarded disability compensation ratings for

additional scars and muscle injuries, demonstrated a difference of opinion among the ROs, and

warranted revision of the November 1970 decision to reflect the additional compensation ratings as

having an effective date of November 1970. In support of his argument, Mr. Bradley relies on 38

C.F.R. § 3.105(b), which requires Central Office review if an adjudicative agency believes an earlier

decision warrants revision or amendment. Specifically, the regulation states:

Difference of opinion. Whenever an adjudicative agency is of the opinion that a

revision or an amendment of a previous decision is warranted, a difference of opinion

being involved rather than a clear and unmistakable error, the proposed revision will

7

be recommended to Central Office. However, a decision may be revised under

§ 3.2600 without being recommended to Central Office.

38 C.F.R. § 3.105(b). Mr. Bradley contends that this regulation required the ROs that rendered

decisions in 1983, 1985, 1994, 1999, and 2003, to recommend to the Central Office a change to the

November 1970 RO decision based on their difference of opinion, as opposed to issuing their own,

separate decisions. The Secretary argues that § 3.105(b) is implicated only when the adjudicative

agency has the opinion that a revision or amendment is warranted before a decision becomes final,

and that it provides no procedural rights to a claimant to demand referral to the Central Office. We

agree with the Secretary. Mr. Bradley reads into this regulation what is not there.

When interpreting a statute or regulation, the "'starting point is its language.'" Otero-Castro

v. Principi, 16 Vet.App. 375, 380 (2002) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402,

409 (1993)); see also Black & Decker Corp. v. Comm'r of Internal Revenue, 986 F.2d 60, 65 (4th

Cir. 1993) ("Regulations, like statutes, are interpreted according to the canons of construction.").

"Where a statute's language is plain, and its meaning clear, no room exists for construction. There

is nothing to construe." See Gardner v. Derwinski, 1 Vet.App. 584, 587 (1991), aff'd sub nom.

Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). The plain language of

the regulation states that it is the adjudicative agency that must believe that a revision is warranted,

based upon a difference of opinion between the adjudicating authorities. Moreover, the decision

whether to revise a prior decision under § 3.105(b) is committed entirely to the adjudicating

authority's discretion without any manageable standards to evaluate that decision, and the Court

therefore has no jurisdiction to review such a decision, whether it is rendered explicitly or implicitly.

See Werden v. West, 13 Vet.App. 463, 467 (2000).

Accordingly, the fact that Mr. Bradley has a difference of opinion with the 1970 RO and

believes it should be revised is of no consequence. Further, Mr. Bradley cites to nothing in the

record to support his assertion that the adjudicating authorities in this instance believed a revision

of a prior decision was warranted and simply failed to refer the matter to the Central Office, as

required by § 3.105(b); indeed the record reveals that the adjudicating authorities believed new

ratings were warranted (and they issued them), not that previous ratings should be revised. If Mr.

Bradley wishes to seek revision of a final decision, he must do so pursuant to 38 U.S.C.

8

§§ 5109A(c), 7111(c) and their implementing regulations, 38 C.F.R. §§ 3.105, 20.1403(c).

3. Informal Claims

Mr. Bradley argues, again alternatively, that the medical examinations of August and

September 1971 constituted informal claims for increased disability ratings for all the scars and

muscle injuries identified by the medical evidence, and that the Secretary should have ascertained

if his disabilities increased within one year prior to these informal claims, as required by 38 U.S.C.

§ 5110(b)(2), providing for an effective date as early as August 1970. This argument, however,

ignores the fact that a September 1971 RO decision explicitly refers to the September 1971 medical

examination report as the last and most current one on record. The September 1971 RO decision

confirms the prior disability ratings, and in doing so, it denies the informal claims for increased

disability compensation. Although the RO decision does not explicitly mention the August 1971

medical examination report, there is a presumption that the RO considered all the evidence of record

before making its decision, and Mr. Bradley has not demonstrated otherwise. See Gonzales v. West,

218 F.3d 1378, 1380-81 (Fed. Cir. 2000) ("hold[ing] that absent specific evidence indicating

otherwise, all evidence contained in the record at the time of the RO's determination . . . must be

presumed to have been reviewed by the Department of Veterans Affairs").

Moreover, although Mr. Bradley filed an NOD to this decision and an SOC issued in October

1971, the record on appeal does not reflect that he filed a Substantive Appeal to the September 1971

RO decision, and it became final. See 38 U.S.C. § 7105(d)(3) (noting that a formal appeal should

be filed within 60 days of the issuance of an SOC or the veteran should request an extension of

time); Roy v. Brown, 5 Vet.App. 554, 556 (1993) (RO decision becomes final when claimant fails

to file timely Substantive Appeal and VA does not waive timely filing requirement); 38 C.F.R.

§ 20.302(b) (requiring that a Substantive Appeal be filed within 60 days from the date the RO mails

the SOC or within one year from the RO's mailing of the adverse decision). Mr. Bradley fails to

demonstrate that the informal claims arising from the August and September 1971 medical

examination reports were unadjudicated, or that the Board erred by not addressing these informal

claims. See Hilkert v. West, 12 Vet.App. 145, 151 (1999), aff’d, 232 F.3d 908 (Fed. Cir. 2000)

(concluding that appellant had the burden of demonstrating error in the Board's decision); cf.

Brannon v. West, 12 Vet.App. 32, 35 (1998) (holding that the Board must "adjudicate all issues

9

reasonably raised by a liberal reading of the appellant's [S]ubstantive [A]ppeal including all

documents and oral testimony in the record prior to the Board's decision" ).

C. Separate Individual Ratings for Each Scar and Muscle Injury

1. Individual Ratings for Each Scar

The parties agree that remand is warranted so that the Board can address whether separate

disability ratings for individual scars are appropriate under 38 C.F.R. § 4.118, Diagnostic Code (DC)

7804 (2008). The Secretary notes that similar action was taken in the case of Jones (Charles) v.

Principi, 18 Vet.App. 248, 261 (2004), which remanded the matter of whether scars under DC 7804

are to be rated individually or cumulatively. In this instance, the Board's statement of reasons or

bases inadequately addresses this matter and remand is appropriate. Although the Board addressed

the applicable ratings for skin disorders, including scarring under DCs 7801, 7803, 7804 and 7805,

under both the pre- and postamended criteria,2 the Board failed to discuss the implication of Jones

and whether Mr. Bradley's scars warranted individual ratings.

2. Individual Ratings for Each Muscle Injury

Mr. Bradley relies on Jones, supra, to support his argument that each muscle injury should

be assigned a separate rating, but his argument is misplaced. Although the Court in Jones remanded

the issue of multiple ratings for scars, it noted, inter alia, that muscle injuries are evaluated pursuant

to 38 C.F.R. § 4.56(b) for each group of muscles damaged. The Jones Court held that "each group

of muscles damaged" is entitled to separate ratings, not each muscle that is damaged. Id. at 258

(emphasis added). Mr. Bradley offers no rationale for now finding otherwise.

D. Chronic Pain Syndrome

The record supports Mr. Bradley's argument that the Board failed to provide an adequate

statement of reasons or bases with regard to his chronic pain syndrome. The Board stated in its

conclusions of law that Mr. Bradley's chronic pain syndrome "was not incurred or aggravated by the

veteran's period of active duty." R. at 6. However, the Board also found that a January 2003 VA

examination diagnosed him "with chronic pain syndrome as directly related to his already service-

connected residual scars and SFW." R. at 33. Yet, the Board provided no explanation for, or

2

The Secretary amended the skins disorders rating criteria in August 2002, while Mr. Bradley's appeal was

pending. See 67 Fed. Reg. 49,590 (July 31, 2002) and 67 Fed. Reg. 58,448 (Sept. 16, 2002).

10

reconciliation of, the obvious inconsistency in these two statements, frustrating judicial review. See

Allday, 7 Vet.App. at 527 (holding that the Board's statement "must be adequate to enable a claimant

to understand the precise basis for the Board's decision, as well as facilitate informed review in this

Court").

Additionally, the rating schedule provides ratings for a pain disorder under a mental disorders

section, see 38 C.F.R. § 4.150, DC 9422 (2008), and a January 2003 compensation and pension

examination included a mental evaluation as well as a physical evaluation of Mr. Bradley's scars and

muscle injuries (see R. at 2099), yet the Board failed to discuss mental pain syndrome and its

relationship, if any, to Mr. Bradley's diagnosed chronic pain syndrome. The Board is required to

consider all reasonably applicable provisions of law and regulation, and to provide an adequate

statement of the reasons or bases for its findings of fact and conclusions of law sufficient to permit

judicial review of its determinations. See 38 U.S.C. § 7104(a), (d)(1); Schafrath v. Derwinski,

1 Vet.App. 589, 592-93 (1991) (stating that the Board must consider and discuss all applicable

provisions of law and regulation where they are made "potentially applicable through the assertions

and issues raised in the record"); Allday and Tucker, both supra.

Mr. Bradley also argues that the Board failed to consider secondary service connection for

his chronic pain syndrome, however, this argument is mooted by virtue of the remand due to the

Board's inadequate statement of reasons or bases with regard to his chronic pain syndrome. Dunn

v. West, 11 Vet.App. 462, 467 (1998) (remand of claim under one theory moots the remaining

theories advanced on appeal).

E. Special Monthly Compensation

Mr. Bradley argues that he is entitled to SMC because he has a 100% combined rating for

his disabilities other than PTSD, and an additional 70% disability for his PTSD, or, alternatively, that

he has a 100% TDIU rating for his PTSD and additional disabilities rated at 60% or more.

The pertinent statutory authorization for special benefits provides that SMC shall be provided

to a veteran with a total disability and additional disabilities rated at 60% or more. Specifically, the

statute states:

If the veteran has a service-connected disability rated as total, and (1) has additional

service-connected disability or disabilities independently ratable at 60 percent or

more, . . . then the monthly compensation shall be $2,766."

11

38 U.S.C. § 1114(s). The relevant part of the implementing regulation states that "[t]he special

monthly compensation provided by 38 U.S.C. § 1114(s) is payable when the veteran has a single

service-connected disability rated as 100 percent and [has] additional service-connected disability

or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-

connected disability and involving different anatomical segments or bodily systems." 38 C.F.R.

§ 3.350(i) (2008). The heart of the issue is what qualifies as a "total" rating for SMC purposes. The

Court reviews the interpretation of statutes and regulations de novo. See 38 U.S.C. § 7261(a)(1);

Ferenc v. Nicholson, 20 Vet.App. 58, 60 (2006) (citing Lane v. Principi, 339 F.3d 1331, 1339 (Fed.

Cir. 2003)); Cacatian v. West, 12 Vet.App. 373, 376 (1999).

1. Mr. Bradley's 100% Combined Rating Argument

"The starting point in interpreting a statute is its language, for '[i]f the intent of Congress is

clear, that is the end of the matter.'" Good Samaritan Hosp. , 508 U.S. at 409 (quoting Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). In this instance, it is clear

from the use of the language and the structure of the sentence that Congress did not intend that a

100% combined rating suffices for "a service-connected disability rated as total." 38 U.S.C.

§ 1114(s).

Congress used the article "a" and singular "disability" when establishing "a service-connected

disability rated as total" as one of the requirements for SMC under section 1114(s). In contrast,

Congress permits the second requirement to be met with either a single "disability or disabilities

independently" rated at 60%. This demonstrates congressional understanding that multiple

disabilities can be combined into a single rating, as well as congressional authorization for combined

ratings to satisfy the second requirement but not the first. "Where Congress introduces language in

one section yet omits it in another, the disparate inclusion or exclusion is deemed intentional."

Norfolk Dredging Co., Inc. v. United States, 58 Fed. Cl. 167, 176 (2003); Babbitt v. Oglala Sioux

Tribal Pub. Safety Dep't, 194 F.3d 1374, 1378 (Fed. Cir. 1999) (stating that "we must assume that

Congress 'says in a statute what it means and means in a statute what it says there'" (quoting Conn.

Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992))); Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1

(2006) ("[A] functioning system of laws must give primacy to the plain language of authorities.

Without standard word meanings and rules of construction, neither Congress nor the Secretary can

12

know how to write authorities in a way that conveys their intent and no practitioner or – more

importantly – veteran can rely on a statute or regulation to mean what it appears to say."); Gardner,

1 Vet.App. at 586 ("Determining a statute's plain meaning requires examining the specific language

at issue and the overall structure of the statute.").

Mr. Bradley argues that since all his scar and muscle injuries arose out of a single accident

– the in-service explosion – these injuries should be treated as a single disability, entitling him to a

total rating. In support of his argument, he notes that for purposes of establishing schedular TDIU,

multiple disabilities arising from a single accident are considered one disability. See 38 C.F.R.

§ 4.16(a)(2008). However, this argument fails to recognize that the direction to treat multiple

disabilities as one is specifically applicable only to TDIU ratings. Indeed, 38 C.F.R. § 4.25(b) (2008)

requires that, except as otherwise provided, all disabilities are to be rated separately, confirming the

understanding that the direction in § 4.16(a) to treat disabilities as one is an exception to the general

rule, and limited to TDIU ratings. Mr. Bradley points to no such direction, and we find none, in

section 1114(s) or its implementing regulation.

2. Mr. Bradley's TDIU Argument

Alternatively, Mr. Bradley contends that his TDIU award satisfies the statutory total rating

requirement in 38 U.S.C. § 1114(s). The Secretary argues that this statute requires the total rating

to be not only for a single disability, but a single schedular disability; e.g., a schedular rating of

100%. The Court interprets statutes de novo, see 38 U.S.C. § 7261 (Court interprets statutory and

regulatory provisions); Lane, 339 F.3d at 1339 ("[I]nterpretation of a statute or regulation is a

question of law ...." ); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court reviews

"questions of law de novo without any deference to the Board's conclusions of law"), and begins with

the language of the statute. See Gardner, supra.

Section 1114(s) states that a veteran is entitled to SMC when the veteran has "a service-

connected disability rated as total" and a separate disability or disabilities rated at 60% or higher.

It is well understood that "'Congress expresses its intent through the language it chooses' and that the

choice of words in a statute is therefore deliberate and reflective." Shoshone Indian Tribe v. United

States, 364 F.3d 1339, 1347 (Fed. Cir. 2004) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 433

n. 12, 436 (1987)). In this instance, the phrase "a service-connected disability rated as total" contains

13

no restriction to a total schedular rating and no exclusion of other total ratings, such as a TDIU, and

no such restriction or exclusion is present in the whole of section 1114 or the statutory scheme as

a whole. See Reno v. Koray, 515 U.S. 50, 56-57 (1995) (construing statutory language in context

of statutory scheme); Kilpatrick v. Principi, 16 Vet.App. 1, 7 (2002) (examining entire statutory

scheme in interpreting meaning of statute). Moreover, at the time Congress drafted this legislation,

TDIU ratings had been in existence for years. See Veterans Administration, The Schedule of Rating

Disabilities, 1933 ed., Extension 4(l) (November 15, 1941) (providing for TDIU ratings); Pub. L.

No. 86-663, 72 Stat. 1120 (July 14, 1960) (providing for SMC). Accordingly, Congress is presumed

to have enacted section 1114(s) with knowledge of TDIU ratings and in harmony with those ratings.

Ramey v. Fed. Bureau of Prisons, 222 F.3d 927, 932 (Fed. Cir. 2000) (citing Canon v. Univ. of

Chicago, 441 U.S. 677, 696-98 (1979)). Congress also understood how to equate a total rating with

a 100% schedular rating, see 38 U.S.C. § 1155 (in effect since at least 1958, prior to enactment of

section 1114(s)), and easily could have excluded a TDIU rating from serving as a basis for

establishing a total rating under section 1114(s) had it so chosen. It did not.

Further, in this instance, the procedural history associated with the Secretary's implementing

regulation, 38 C.F.R. § 3.350(i) (1994), demonstrates that the Secretary's regulation authorizes a

TDIU rating to fulfill the statutory total rating requirement. Initially, the Secretary's implementing

regulation expressly prohibited a rating based upon individual unemployability from satisfying the

"total" requirement of section 1114(s). However, based on a 1994 VA General Counsel opinion that

section 1114(s) did not authorize this restriction, see VA Gen. Coun. Prec. 2-94 (Jan. 21, 1994), the

Secretary promptly changed the regulation – by dropping the restrictive language, see 60 Fed. Reg.

12,886 (Mar. 9, 1995). When making this change, the Secretary also noted that "the plain and

unambiguous language of 38 U.S.C. § 1114(s) does not restrict the nature of total ratings that may

be used as a basis for entitlement to the rate of special monthly compensation which section 1114(s)

authorizes." Id.

With the omission of the restrictive language, the regulation authorized a TDIU rating to

serve as a basis for establishing a total rating under section 1114(s). Cf. In re Town & Country Home

Nursing Servs., Inc., 963 F.2d 1146, 1151 (9th Cir. 1991) ("As a general canon of statutory

construction, where the final version of a statute deletes language contained in an earlier draft, a

14

court may presume that the earlier draft is inconsistent with ultimate congressional intentions."); see

also Black & Decker Corp., 986 F.2d at 65 ("Regulations, like statutes, are interpreted according

to the canons of construction."). And, this regulation has not been changed since the March 1995

amendment. Inasmuch as section 1114(s) does not exclude TDIU from satisfying the "total" rating

requirement therein, the Secretary's change to regulation § 3.350(i) authorizing the use of TDIU to

satisfy the "total" rating requirement of section 1114(s) is a plausible and reasonable interpretation

of the statute and this regulation is entitled to substantial deference. See Chevron, 467 U.S. at 844

(affording deference to an agency's interpretation of a statute); Livesay v. Principi, 15 Vet.App. 165,

172 (2001) (en banc) ("The Court will sustain a regulation that is consistent with the language of the

statute and is a plausible interpretation of the law.").

The Secretary argues that several years after § 3.350(i) was changed, the VA General Counsel

issued a new opinion in 1999 to the effect that section 1114(s) excluded TDIU as a basis for

establishing a total rating under that section. See VA. Gen. Coun. Prec. 6-99 (June 7, 1999). The

Secretary further notes that the Board relied on this opinion. Although the Board is required to

follow VA General Counsel opinions,3 see 38 U.S.C. § 7104(c); 38 C.F.R. § 20.100(a) (2008), the

Court is not, see Mason v. Nicholson, 20 Vet.App. 279, 293 (2006). Rather, the Court reviews the

law de novo, see Lane and Butts, both supra, and gives the General Counsel's interpretation of the

law deference "proportional to 'its power to persuade.'" See United States v. Mead Corp., 533 U.S.

218, 234-35 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140-41 (1944)).

As discussed above, we find nothing in section 1114(s), or the statutory scheme as a whole,

that limits "a service-connected disability rated as total" to only a schedular rating of 100%. The

1994 VA General Counsel's opinion is consistent with this interpretation, as is the Secretary's

understanding when he modified the implementing regulation, § 3.350(i), to remove the exclusion

of TDIU from satisfying the total rating requirement of section 1114(s). Moreover, we believe that

the Secretary's interpretation of the General Counsel's 1999 opinion – excluding TDIU as a basis

for a total rating – is too expansive, and, so read, conflicts with the VA General Counsel's 1994

3

One might question which VA General Counsel opinion the Board is required to follow, but given our

disposition in this matter, we need not further address this issue.

15

opinion, our interpretation of the statute, and the Secretary's current regulation.4 However, we do

not believe such a reading is necessary or warranted.

Although the 1999 VA General Counsel opinion generally states that section 1114(s) should

not be read as authorizing SMC when a veteran has TDIU and a schedular rating of 60 % or more,

this general statement is followed by a more specific explanation that narrows the scope of the

general statement. Specifically, the 1999 opinion noted that because TDIU takes into consideration

all of a veteran's disabilities, allowing TDIU to satisfy the total disability requirement of section

1114(s), and one or more of the disabilities upon which the TDIU rating was awarded to satisfy the

second requirement of an additional disability or disabilities of 60% or more, would result in the

same disability being counted twice. Thus, the 1999 opinion rested its general conclusion on the fact

that permitting TDIU to establish a total rating under section 1114(s) would result in duplicate

counting of disabilities.

However, this is not always the case. It is possible for a veteran to be awarded TDIU for a

single disability and thereafter be awarded disability ratings for other conditions. Under these

circumstances, there would be no duplicate counting of disabilities. The 1999 opinion did not

address this situation, and we will not read it for the proposition that all TDIU ratings are excluded

from satisfying the 1114(s) total rating requirement, which would render it in conflict with the 1994

VA General Counsel opinion, our interpretation of section 1114(s), and regulation § 3.350(i). Cf.

Commonwealth Edison Co. v. Vega, 174 F.3d 870, 875 (7th Cir. 1999) (noting that where there is

no conflict between differing interpretations, there is no need to decide which controls); see also

Norfolk S. Railway Co. v. Shanklin, 529 U.S. 344, 356 (2000) (giving no deference to an agency

interpretation that conflicts with the agency's previous interpretation).

Accordingly, under the circumstances of this case, we need not decide the full scope and

validity of the 1999 VA General Counsel opinion, or whether the Secretary permissibly may modify

his regulation to exclude TDIU from satisfying the section 1114(s) requirement of a total rating. We

need only decide, and so hold, that section 1114(s) does not limit "a service-connected disability

4

Substantive modifications to regulations may only be made after complying with the rule-making procedures

of notice and comment, 5 U.S.C. § 553(b), (c); Theiss v. Principi, 18 Vet.App. 204, 213 (2004), procedures that were

not followed with the issuance of the 1999 General Counsel opinion.

16

rated as total" to only a schedular rating of 100%, and the Secretary's current regulation permits a

TDIU rating based on a single disability to satisfy the statutory requirement of a total rating.

F. Application of 38 U.S.C. § 1114(s)

With regard to Mr. Bradley's TDIU rating, the record is confusing. A June 1991 RO decision

confirmed his scar and muscle injury ratings, increased his PTSD rating from 30% to 70%,

determined that he was unable to engage in substantially gainful employment, and awarded him

TDIU, and a 1997 Board decision established the effective date of his TDIU as March 1983. The

increased PTSD rating appears to be the basis for the TDIU award, however, the RO only generally

stated that "the veteran's SC [service-connected] disabilities render him unemployable . . . " R. at

1126 (emphasis added). A January 2005, RO decision noted that Mr. Bradley received TDIU

effective from March 1983 until June 1992 at which time he received a 100% combined rating.

The reason for the transition from TDIU to a 100% combined rating is not clear. A July 1983

RO decision reflects that Mr. Bradley had a combined disability compensation rating of 70%

effective from March 25, 1983 (see R. at 539), and a June 1991 RO decision noted that Mr. Bradley's

combined rating was 90% and further awarded TDIU from December 1987 (see R. at 1121-22),

subsequently changed to March 1983 after a decision by the 1997 Board (R. at 1620). A January 4,

2002, RO decision records that Mr. Bradley has a 100% combined rating, effective June 8, 1992, but

the record fails to contain an explanation for the transition from a TDIU rating to the 100%

combined rating. At oral argument, the Secretary explained that the change from TDIU to a 100%

combined rating was made because the combined rating was more beneficial to Mr. Bradley, and

further noted that the TDIU rating was subsumed by the 100% combined rating.

The Secretary is required to maximize benefits, see AB v. Brown 6 Vet.App. 35, 38 (1993)

(presuming that a claimant is seeking the maximum benefits allowed by law and regulation); 38

C.F.R. § 3.103(a)(2008) (noting VA's obligation to "render a decision which grants every benefit that

can be supported in law"), and it appears it was his intent to do so in this case when he assigned a

100% schedular rating, subsuming the TDIU rating. However, under the circumstances of this case,

a TDIU rating for PTSD alone would entitle Mr. Bradley to SMC benefits as an additional benefit

not otherwise provided to persons with a 100% combined rating. Accordingly, the Secretary should

have assessed whether Mr. Bradley's TDIU rating was warranted based on his PTSD alone before

17

substituting a combined total rating for his TDIU rating. Because a finding that Mr. Bradley's PTSD

is sufficient, on its own, to warrant a TDIU rating, would mean that Mr. Bradley is also entitled to

SMC, the decision denying him SMC will be vacated and the matter remanded for further

adjudication.

Should the Secretary determine on remand that Mr. Bradley is entitled to a total rating based

upon PTSD alone, and Mr. Bradley therefore qualifies for SMC (because he has additional

disabilities other than PTSD rated at 60%), the proper effective date must be assigned. Although Mr.

Bradley raised the issue of his entitlement to SMC in January 2000, these benefits are to be accorded

when a veteran becomes eligible without need for a separate claim. See Akles v. Derwinski,

1 Vet.App. 118, 121 (1991) (noting VA's policy to consider SMC where applicable). Accordingly,

any effective date must be based on that point in time when the evidence first supported an award

of SMC, which may be well before Mr. Bradley raised the issue of his entitlement thereto. See 38

U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o) (2008).

G. Remanded Matters

For those matters being remanded, Mr. Bradley will have the opportunity to present any

additional evidence and argument in support of his claim, and the Board must consider any evidence

and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The matters

remanded are to be provided expeditious treatment. See 38 U.S.C. § 7112.

III. CONCLUSION

That part of the Board's March 3, 2006, decisions denying earlier effective dates and

increased disability ratings for Mr. Bradley's multiple muscle injuries is AFFIRMED; those parts of

the decisions addressing CUE in the August 1994 RO decision, entitlement to ratings in excess of

10% for residual scarring, and service connection for chronic pain syndrome are SET ASIDE and

the matters REMANDED for further adjudication; and that part of the decision denying special

monthly compensation is REVERSED and the matter REMANDED for further adjudication.

18