George W. Breniser v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 09-0728

GEORGE W. BRENISER , APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE .

On Appeal from the Board of Veterans' Appeals

(Argued June 14, 2011 Decided September 19, 2011)

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.

SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed an opinion

concurring in part and dissenting in part.

SCHOELEN, Judge: 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(l) is entitled to a higher rate

1

The appellant does not raise any argument on appeal concerning the denial of SMC on

account of being housebound; therefore, the Court will consider the matter to have been abandoned

on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (holding claims not argued on appeal

are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435 (1993).

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 (l) 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(l) 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.

I. BACKGROUND

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.

2

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) "is payable for, among other things, conditions entitling a veteran to two or more

of the rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n).

Determinations for entitlement under 38 U.S.C.A. § 1114(o) must be based upon separate and

distinct disabilities." 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.

3

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.

II. THE PARTIES' CONTENTIONS

A. The Appellant's Arguments

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.

4

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

. . . section [1114]." 38 U.S.C. § 1114(p); see Appellant's Br. at 27-28. As noted above, the

appellant asserts that the January 2011 award of a higher rate of SMC under section 1114(p),

effective from March 2010, does not moot his argument because he asserts that, on remand, the

Board could determine that he is entitled to a full-step higher rate of SMC.

B. The Secretary's Arguments

In a substitute brief, the Secretary argues that the regulations are consistent with both the

plain language of the statute, as well as with congressional intent. Secretary's Br. at 6-18. The

Secretary asserts that 38 C.F.R. § 3.350(e)(3) correctly interprets 38 U.S.C. § 1114(o), and that both

the regulation and the statute clearly preclude awards for the maximum rate of SMC under

subsection (o) based on the same disability. Id. at 9. The Secretary argues that "[i]n the context of

[section 1114(o)] and its history, the word 'conditions' clearly refers to a term such as 'circumstances,'

and the latter use of the word 'condition,' in its singular form, refers to the underlying disability or

disabilities, such as anatomical loss, loss of use, or blindness, that entitles a [v]eteran to a rate

proscribed in paragraph (l) to (n) of 38 U.S.C. § 1114." Id. at 15 (emphasis in original). The

Secretary maintains that "the statute, since its inception, awarded the higher (o) rate to an individual

who had loss or loss of use of the lower extremities and, in addition, helplessness due to some other

service-connected disability or disabilities." Id. at 10. Because the appellant's need for aid and

attendance arises out of the loss of use of his feet, the Secretary argues that he is not entitled to a

5

higher rate of SMC under section 1114(o). Id. at 18. At oral argument, the Secretary conceded that

if the appellant is entitled to a higher rate of SMC under section 1114(o), then he would also be

entitled to an additional allowance under subsection (r)(1) based on his need for regular aid and

attendance.

With respect to the appellant's arguments for remand, the Secretary asserts that the appellant

has not previously raised a claim for service connection on a secondary basis and has not pointed to

evidence in the record of any such claim. Id. at 18-22. The Secretary argues that the record merely

establishes that the appellant suffered a stroke, which rendered him unable to propel his wheelchair.

Id. at 21. The Secretary contends that the appellant has not demonstrated error in the Board's

decision because the appellant has not previously asserted a belief that his non-service-connected

stroke is related to the cold weather residuals that caused the loss of use of his feet and the Board is

"not 'require[d] to conduct an exercise in prognostication.'" Id. (quoting Talbert v. Brown,

7 Vet.App. 352, 356 (1995)). Finally, the Secretary refutes the appellant's assertion that subsection

(p) was potentially applicable to the appellant's claim at the time of the Board's decision. Id. at 22.

The Secretary relies on VA's regulation 38 C.F.R. § 3.350(f) (2010), which delineates numerous

instances in which the Secretary is authorized to pay SMC at the next higher rate or at an

intermediate rate. Id. Because loss of use of both feet, along with the need for regular aid and

attendance, is not one of the enumerated circumstances listed in § 3.350(f), the Secretary asserts that

section 1114(p) is not applicable. Id.

III. LAW

A. 38 U.S.C. § 1114

SMC is available when, "as the result of service-connected disability," a veteran suffers

additional hardships above and beyond those contemplated by VA's schedule for rating disabilities.

See 38 U.S.C. § 1114(k)-(s). The rate of SMC "varies according to the nature of the veteran's

service-connected disabilities." Moreira v. Principi, 3 Vet.App. 522, 524 (1992). The Board's

determination as to whether a veteran is entitled to SMC is a finding of fact that this Court reviews

under the "clearly erroneous" standard of review. See Prejean v. West, 13 Vet.App. 444, 447 (2000);

Turco v. Brown, 9 Vet.App. 222, 224 (1996).

6

Basic levels of SMC are listed in section 1114(k). Higher levels of SMC are provided in

sections 1114(l), (m), (n), and (o), which state, in pertinent part:

(l) if the veteran, as the result of service-connected disability, has suffered the

anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in

both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such

significant disabilities as to be in need of regular aid and attendance, the monthly

compensation shall be $3,075;

(m) if the veteran, as the result of service-connected disability, has suffered the

anatomical loss or loss of use of both hands, or of both legs at a level, or with

complications, preventing natural knee action with prosthesis in place, or of one arm

and one leg . . . , or has suffered blindness in both eyes having only light perception,

or has suffered blindness in both eyes, rendering such veteran so significantly

disabled as to be in need of regular aid and attendance, the monthly compensation

shall be $3,392;

(n) if the veteran, as the result of service-connected disability, has suffered the

anatomical loss or loss of use of both arms at levels, or with complications,

preventing natural elbow action with prosthesis in place, has suffered the anatomical

loss of both legs so near the hip as to prevent the use of prosthetic appliances, or has

suffered the anatomical loss of one arm and one leg . . . , or has suffered anatomical

loss of both eyes, or has suffered blindness without light perception in both eyes, the

monthly compensation shall be $3,860;

(o) if the veteran, as the result of service-connected disability, has suffered disability

under conditions which would entitle such veteran to two or more of the rates

provided in one or more subsections (l) through (n) of this section, no condition

being considered twice in the determination, . . . the monthly compensation shall be

$4,313.

38 U.S.C. § 1114(l)-(o). Thus, subsections (l) through (n) provide progressively increased rates of

SMC based on the severity of the veteran's disability. Subsection (o) provides for an even higher rate

of SMC for veterans who are entitled to two or more of the rates provided under one or more

subsections (l) through (n).

Subsection (p) provides for half- or full-step increases to the next higher rate in subsections

(l) through (n) for a veteran whose condition exceeds the requirements of his current rate, but does

not qualify for the next higher rate. 38 U.S.C. § 1114(p). Finally, if a veteran is entitled to

compensation authorized under subsection (o), and is in need of regular aid and attendance, then in

7

addition to compensation available under subsection (o), he is entitled to receive an additional "aid

and attendance allowance" under section 1114(r)(1) and (2).

B. 38 C.F.R. §§ 3.350, 3.352 (2011)

VA has promulgated regulations implementing section 1114. 38 C.F.R. §§ 3.350, 3.352

(2011). As relevant to this appeal, the regulation implementing section 1114(o) provides that SMC

under the (o) rate is payable for "[c]onditions entitling to two or more of the rates (no condition

being considered twice) provided in 38 U.S.C. § 1114(l) through (n)." 38 C.F.R. § 3.350(e)(1)(ii).

The appellant challenges § 3.350(e)(3), which provides the Secretary's interpretation of subsection

(o)'s proviso "no condition being considered twice in the determination," and states:

Combinations. Determinations must be based upon separate and distinct disabilities.

This requires, for example, that where a veteran who had suffered the loss or loss of

use of two extremities is being considered for the maximum rate on account of

helplessness requiring regular aid and attendance, the latter must be based on need

resulting from pathology other than that of the extremities. If the loss or loss of use

of two extremities or being permanently bedridden leaves the person helpless,

increase is not in order on account of this helplessness. Under no circumstances will

the combination of "being permanently bedridden" and "being so helpless as to

require regular aid and attendance" without separate and distinct anatomical loss, or

loss of use, of two extremities, or blindness, be taken as entitling to the maximum

benefit. The fact, however, that two separate and distinct entitling disabilities, such

as anatomical loss, or loss of use of both hands and both feet, result from a common

etiological agent, for example, one injury or rheumatoid arthritis, will not preclude

maximum entitlement.

38 C.F.R. § 3.350(e)(3).

The criteria relevant to the determination of whether a veteran "is so helpless as to be in need

of regular aid and attendance are contained in § 3.352(a)." 38 C.F.R. § 3.350(b)(3). Section 3.352(a)

states:

The following will be accorded consideration in determining the need for regular aid

and attendance . . . : inability of claimant to dress or undress himself (herself), or to

keep himself (herself) ordinarily clean and presentable; frequent need of adjustment

of any special prosthetic or orthopedic appliances which by reason of the particular

disability cannot be done without aid (this will not include the adjustment of

appliances which normal persons would be unable to adjust without aid, such as

supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself)

through loss of coordination of upper extremities or through extreme weakness;

inability to attend to the wants of nature; or incapacity, physical or mental, which

8

requires care or assistance on a regular basis to protect the claimant from hazards or

dangers incident to his or her daily environment. . . . It is not required that all of the

disabling conditions enumerated in this paragraph be found to exist before a

favorable rating may be made. The particular personal functions which the veteran

is unable to perform should be considered in connection with his or her condition as

a whole. It is only necessary that the evidence establish that the veteran is so helpless

as to need regular aid and attendance, not that there be a constant need.

38 C.F.R. § 3.352(a).

IV. ANALYSIS

The question before the Court is whether a veteran who is in receipt of SMC under section

1114(l) for the loss of use of both feet qualifies to receive the maximum rate of SMC under section

1114(o) by establishing that he has also suffered disability under conditions that would entitle him

to SMC under subsection (l) on account of being in need of regular aid and attendance – when the

veteran's need for aid and attendance is the result of his only qualifying service-connected disability2

– the loss of use of both feet – and subsection (o) prohibits a "condition [from] being considered

twice in the determination." Alternatively stated, can the need for aid and attendance, in and of

itself, constitute a qualifying condition when that need arises from the veteran's only service-

connected disability that already entitles him to SMC under section 1114(l)? This is a matter of

statutory interpretation, which the Court determines de novo. See 38 U.S.C. § 7261(a)(1); Butts v.

Brown, 5 Vet.App. 532, 539 (1993) (en banc).

A. Statutory Interpretation

"Statutory interpretation begins with the language of the statute, the plain meaning of which

we derive from its text and structure." Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007)

(quoting McEntee v. M.S.P.B., 404 F.3d 1320, 1328 (Fed. Cir. 2005); see Sharp v. Shinseki,

2

As noted above, the appellant was granted entitlement to service connection for hearing

loss, evaluated as 60% disabling, and tinnitus, evaluated as 10% disabling, effective March 29, 2010.

The RO also awarded a higher rate of SMC under 38 U.S.C. § 1114(p), effective March 29, 2010,

based on the appellant's loss of use of both feet and additional service-connected disability (hearing

loss) independently ratable at 50% or more. See 38 C.F.R. § 3.350(f)(3) (2010). Because these

awards were granted after the Board's February 2009 decision here on appeal, the Court will refer

solely to the appellant's loss of use of both feet for the purpose of its discussion.

9

23 Vet.App. 267, 271 (2009); see also McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008);

Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning requires

examining the specific language at issue and the overall structure of the statute." (citing Bethesda

Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1998))), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456

(Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). In reviewing "an agency's construction of the statute

which it administers," a court must first ask "whether Congress has directly spoken to the precise

question at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842

(1984). If so, the court and the agency must "give effect to the unambiguously expressed intent of

Congress." Id. at 842-43.

Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected

disability," to qualify for this rate of SMC: (1) Anatomical loss or loss of use of both feet; (2)

anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual

acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be

in need of regular aid and attendance." 38 U.S.C. § 1114(l). The "need of regular aid and

attendance" in section 1114(l) must be the result of "such significant disabilities." 38 U.S.C.

§ 1114(l).

Section 1114(o) states that

if the veteran, as the result of service-connected disability, has suffered disability

under conditions which would entitle such veteran to two or more of the rates

provided in one or more subsections (l) through (n) of this section, no condition

being considered twice in the determination, . . . the monthly compensation shall be

$4,313.

38 U.S.C. § 1114(o) (emphasis added). The meaning of emphasized terms "conditions" and

"condition," as well as the phrase "no condition being considered twice in the determination" is

essential to the Court's resolution of the matter on appeal.

Both parties argue that the plain and unambiguous language of subsection (o) supports their

respective positions. The appellant posits that each distinct way to receive an award of SMC under

subsections (l), (m), and (n), e.g., "the anatomical loss or loss or use of both hands," or "blindness

in both eyes having only light perception," is a "condition" under subsection (o), which may not be

considered twice when determining whether an award under (o) is warranted. Thus, he contends that

10

he is entitled to a higher rate of SMC under section 1114(o) because he has two qualifying conditions

under subsection (l): loss of use of both feet and need for aid and attendance. Questioned at oral

argument how he interprets the phrase "no condition being considered twice," the appellant stated

that a veteran could not receive SMC at the (o) rate because he has loss of use of both feet and loss

of use of both feet.

The Secretary asserts that entitlement to the higher rate under subsection (o) must be based

on separate and distinct disabilities. The Secretary posits that subsection (o)'s use of the term

"conditions" refers generally to a term such as "circumstances," and the latter use of the word

"condition," refers to the underlying disability or combination of disabilities, such as anatomical

loss, loss of use, or blindness, that entitles a veteran to a rate proscribed in subsections (l), (m), and

(n) of 38 U.S.C. § 1114. At oral argument, the Secretary explained that under subsection (o) a

veteran may receive the maximum rate if, for example, the veteran has the loss of use of both feet

and sustained a separate service-connected disability, e.g., a traumatic brain injury, that requires aid

and attendance.

The Court notes that nowhere in the statute does Congress define the terms "condition" or

"conditions." Moreover, a review of section 1114, as a whole, reveals that Congress did not use

either term in any subsection other than subsection (o). The statute's silence on the definition of

"condition(s)," may appropriately be understood as Congress's having delegated this matter to the

Secretary. See U.S. v. Mead Corp., 533 U.S. 218, 226-27 (2001); Chevron, 467 U.S. at 843-44; see

also 38 U.S.C. § 501(a) (providing that "[t]he Secretary has authority to prescribe all rules and

regulations which are necessary or appropriate to carry out the laws administered by the

department"). Therefore, because "condition" is not defined in the statute and the Secretary

interprets that the structure of the statute to imply multiple meanings to the same term, the Court

concludes that the language of the statute is ambiguous with respect to the precise issue presented

by this appeal. See Haas v. Nicholson, 20 Vet.App. 257, 262 n.2 (2006) ("[S]tatutory ambiguity is

not an absolute conclusion, but is a case-by-case determination as to whether the language answers

the particular question presented. Hence, statutory language that plainly answers one question may

still be ambiguous when applied to another."), rev'd on other grounds, Haas v. Peake, 525 F.3d 1168

(Fed. Cir. 2008).

11

B. Regulatory Interpretation

Having concluded that the terms "condition" and "conditions" in section 1114(o) are

ambiguous, the Court must turn to step two of the Chevron analysis, which requires the Court to

defer to the Agency's authorized interpretation of the statute if "the agency's answer is based on a

permissible construction of the statute." Chevron, 467 U.S. at 843; see Fed. Express Corp v.

Holowecki, 552 U.S. 389, 395 (2008) ("[W]hen an agency invokes its authority to issue regulations,

which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations.");

see also Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007). Providing

Chevron deference to the Agency's construction of the statute does not require the Court to conclude

that the "agency['s] construction was the only one it permissibly could have adopted . . . or even the

reading the court would have reached if the question initially had arisen in a judicial proceeding."

Chevron, 467 U.S. at 843 n.11. The Secretary's interpretation will not be set aside unless it is

"arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 38 U.S.C.

§ 7261(a)(3)(A).

1. The Meaning of "Condition" and "No Condition Being Considered Twice"

In reviewing the Secretary's regulation, the Court notes that sections 3.350(e)(1) and (2),

expressly use the terms "condition" and "conditions" in describing when a claimant would be entitled

to a higher rate of SMC under section 1114(o). 38 C.F.R. §§ 3.350(e)(1) and (2). The portion of the

regulation that the appellant challenges, § 3.350(e)(3), uses only the term "disabilities," and does not

use the term "condition" or "conditions." Section 3.350(e)(3), entitled "Combinations," appears to

specifically implement the statutory language of section 1114 (o), "no condition being considered

twice in the determination," by stating:

Determinations must be based upon separate and distinct disabilities. This requires,

for example, that where a veteran who had suffered the loss or loss of use of two

extremities is being considered for the maximum rate on account of helplessness

requiring regular aid and attendance, the latter must be based on need resulting from

pathology other than that of the extremities. If the loss or loss of use of two

extremities or being permanently bedridden leaves the person helpless, increase is

not in order on account of this helplessness.

38 C.F.R. § 3.350(e)(3).

12

The Secretary's interpretation of the term "condition" in section 1114(o) to mean "disability"

is implemented by the first sentence of the regulation requiring that "[d]eterminations must be based

upon separate and distinct disabilities." Id. The remainder of § 3.350(e)(3) describes when a veteran

may and may not be entitled to a higher rate of SMC on account of helplessness requiring regular

aid and attendance and has suffered the loss or loss of use of two extremities. The specific question

the Court must address is whether the Secretary's regulation, which interprets the phrase "no

condition being considered twice" to mean "no disability being considered twice" is a reasonable

construction of the statute. Chevron, supra.

The purpose of an agency's regulation is to articulate the agency's interpretation of a statute,

and to provide guidance on how to implement that statute. See Morton v. Ruiz, 415 U.S. 199, 231

(1974) ("The power of an administrative agency to administer a congressionally created . . . program

necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly

or explicitly, by Congress."). Because the primary function of any regulation is to interpret the

statute it implements, not mimic it, a regulation need not, and should not, parrot the statute it

implements. This Court has held that regulatory language that "merely parrots the statutory

language" has no interpretive value. See Sharp, 23 Vet.App. at 274 (finding that 38 C.F.R. § 3.4

(b)(2) (2009) "does not assist in the interpretation of section 1115 because it merely parrots the

statutory language"); see also Gonzales v. Oregon, 546 U.S. 243, 257 (2006) ("[T]he existence of

a parroting regulation does not change the fact that the question here is not the meaning of the

regulation but the meaning of the statute."). Therefore, the absence of the word "condition" or

"conditions" in § 3.350(e)(3) by itself does not render the Secretary's interpretation invalid. Instead,

by explaining that determinations "must be based upon separate and distinct disabilities"

§ 3.350(e)(3) fulfills its primary function by giving instruction and meaning to the phrase "no

condition being considered twice in the determination."

Thus, the Secretary asserts that § 3.350(e)(3), which instructs that SMC under section

1114(o) is to be granted to veterans who are in need of aid and attendance for a service-connected

disability that is separate and distinct from the anatomical loss or loss of use or blindness that is

already the subject of a rate of SMC under subsections (l) through (n), is consistent with the statute's

13

requirement that "no condition be considered twice in the determination." 38 U.S.C. § 1114(o). The

Secretary finds support for his position in the legislative history leading to the 1945 amendments to

Veterans' Regulation No. 1(a), which permitted helplessness, for the first time, to be combined with

other qualifying conditions for the maximum rate of SMC.3

The Secretary points out that in July 1945, the Veterans Administration Administrator,

General Frank T. Hines, submitted VA's legislative proposal to Congress urging that helplessness

be included as a basis upon which the maximum rate of SMC could be awarded. See 91 Cong. Rec.

7880-81 (1945). In a letter to Congress, the Administrator explained:

The maximum rate, as a result of including helplessness as one of the entitling

multiple disabilities, is intended to cover, in addition to obvious losses and blindness,

transverse myelitis with loss of use of both legs and loss of anal and bladder sphincter

control, generally resulting from severance of the spinal cord in action or incident to

airplane or motorized military equipment crashes; also the loss of use of two

extremities with near blindness and absolute deafness, or with severe multiple

injuries outside the useless extremities, these conditions being construed as loss of

use of two extremities and helplessness.

Id. at 7881 (emphasis added).

3

Prior to the 1945 amendment, a veteran was entitled to receive the maximum rate

[i]f the disabled person, as the result of service incurred disability, has suffered the

anatomical loss or loss of use as provided in subparagraphs (l) to (n), inclusive, of

Part I of paragraph II of this Regulation, . . . which conditions under subparagraphs

(l) to (n), entitled him to two or more of the rates provided in those subparagraphs,

no specified condition being considered twice in the determination, the monthly

pension shall be $250.00.

Veterans' Regulation No. 1(a), pt. I, para. II(o) (1939) (emphasis added). The 1945 amendment

provided, in pertinent part, that

[i]f the disabled person, as the result of service incurred disability, has suffered

disability under conditions which would entitle him to two or more of the rates

provided in one or more of the subparagraphs (l) to (n), inclusive, of part I, paragraph

II of this Regulation, no condition being considered twice in the determination, . . . ,

the monthly pension shall be $300.00.

Veterans' Regulation No. 1(a), pt. I, para. II(o) (1945) (emphasis added).

14

The same congressional record contains a chart the Administrator submitted to Congress

setting forth the then-current and proposed amounts for each level of SMC. The chart specified that

the maximum rate of SMC would be awarded for "'[d]ouble total' disability which was defined as

a 'total' disability, along with helplessness 'from other pathology, including blind and deaf.'"

Secretary's Br. at 13-14 (quoting 91 Cong. Rec. at 7884) (emphasis added). It is undisputed that the

1945 amendments intended to broaden the conditions that could be combined to warrant an award

of the maximum rate. The Administrator's explanation to Congress and the chart he submitted

reflect that to give effect to the statutory language that "no condition be[] considered twice in the

determination," VA envisioned that the maximum rate would be available when the veteran suffered

from the loss or loss of use of two extremities, with helplessness arising from an additional service-

connected disability, other than the loss or loss of use of two extremities.

On September 20, 1945, Congress amended the Veterans' Regulations "to provide additional

rates of compensation or pension and remedy inequalities as to specific service-incurred disabilities

in excess of total disability." Pub. L. No. 79-182 (1945). In doing so, Congress adopted what is now

subsection (o), as proposed by VA. The lack of a statutory definition for the term "condition" in

subsection (o) left a gap to be filled by the Agency – and as noted above – the history provided by

the Secretary shows that VA has, since its inception, viewed the inclusion of helplessness as a

qualifying condition for the maximum rate to require that the need for aid and attendance arise from

pathology other than that for which the claimant is already in receipt of SMC. While "reliance on

long-standing agency practice must be tempered with some caution in the veterans context," see

Gardner v. Brown, 513 U.S. 115, 120 (1994) (refusing Chevron deference to the Agency's

longstanding interpretation that was contrary to the plain language of the statute), it is not prohibited.

See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1323 (Fed. Cir. 2005)

(distinguishing Gardner under circumstances showing that Congress ratified and authorized the

Board's longstanding practice); see generally N.L.R.B. v. Bell Aerospace Co. Div. of Taxation,

416 U.S. 267, 275 (1974) (noting that an established principle of statutory construction permits a

court to "accord great weight to the long standing interpretation placed on a statute by an agency

charged with its administration . . . especially . . . where Congress has reenacted the statute without

pertinent change"); Money v. Office of Pers. Mgmt., 811 F.2d 1474, 1477 (Fed. Cir. 1987) (stating

15

that "[t]he longstanding interpretation placed on a statute by the agency charged with its

administration should be followed unless there are compelling indications that it is wrong").

In this case, the Court finds that the history provided by the Secretary, Congress's repeated

reenactment of subsection (o) without pertinent change,4 together with the deference owed to an

agency's reasonable interpretation of a statute it seeks to implement, compels the Court to conclude

that the requirement in 38 C.F.R. § 3.350(e)(3) that "[d]eterminations to be based upon separate and

distinct disabilities" is a reasonable and valid interpretation of 38 U.S.C. § 1114(o). See Lorillard

v. Pons, 434 U.S. 575, 580 (1978) ("Congress is presumed to be aware of administrative or judicial

interpretation of a statute and to adopt that interpretation when it re-enacts a statute without

[relevant] change."); see also Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334,

1340 (Fed. Cir. 2003) ("[W]here the application of customary canons of statutory construction points

in opposite directions, we resort to the Chevron principle." (citing Nat'l Org. of Veterans' Advocates

v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1377 (Fed. Cir. 2001))); DeBoard v. Principi, 18

Vet.App. 357, 364 (2004) (stating "where the meaning of a statutory provision is ambiguous, the

Court must take care not to invalidate otherwise reasonable agency regulations simply because they

do not provide for a pro-claimant outcome in every imaginable case"). The regulation's reference

to "separate and distinct disabilities" resolves any ambiguity in the statutory language "no condition

being considered twice" and makes clear that the maximum rate under subsection (o) is available

only when the veteran's entitlement to two or more rates under subsections (l) through (n) is based

on separate service-connected disabilities.

Additional support for the Secretary's interpretation can be found in the statute itself.

Subsection (m) specifically provides for a higher rate of SMC when "the veteran, as the result of

service-connected disability . . . has suffered blindness in both eyes, rendering such veteran

significantly disabled as to be in need of regular aid and attendance." 38 U.S.C. § 1114(m); cf.

38 U.S.C. § 1114 (k), (l) (providing lower rates of SMC if a veteran, as the result of service-

4

The legislative history of section 1114 shows that in addition to numerous cost-of-living

adjustments to the rates prescribed therein, subsection (o) has undergone additional amendment to

the statutory language, without change to the pertinent language in dispute. See, e.g. Veterans'

Benefits Act of 2010, Pub. L. 111-275, § 601(a)(3), 124 Stat. 2864.

16

connected disability has suffered "blindness of one eye, having only light perception" or "is blind in

both eyes, with 5/200 visual acuity or less"). A comparison of the rates of compensation provided

by Congress for veterans who have suffered varying degrees of blindness demonstrates that when

Congress intended to provide a higher rate for a condition – blindness – when that same condition

also resulted in the need for aid and attendance, Congress knew how to do so. At the same time,

Congress generally provided in subsection (o) that the maximum rate may be awarded where the

veteran establishes entitlement to two or more of the rates provided in subsections (l) through (n),

so long as "no condition [is] considered twice in the determination." 38 U.S.C. § 1114(o). Although

this distinction may seem somewhat arbitrary that a veteran who suffers blindness in both eyes and

is in need of aid and attendance as a result of that blindness is entitled to a higher rate of

compensation (although at the "(m)" rate, not the maximum) than a veteran who suffers the loss of

use of both feet and is in need of aid and attendance as a result of the loss of use of both feet,

Congress expressly devised progressively increasing rates of SMC in subsections (l) through (o)

based upon its determination of what conditions were more disabling. Against this backdrop, the

Court cannot find the Secretary's interpretation, which prohibits SMC at the maximum(o) rate when

the need for aid and attendance arises from the same pathology that otherwise entitles the veteran

to an award of SMC at a rate provided in subsections (l) through (n), unreasonable. 38 C.F.R.

§ 3.350(e)(3). Although the Court is sympathetic to the appellant's situation, his remedy lies with

Congress, not this Court. See Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S.

967, 981 (2005) ("If a statute is ambiguous, and if the implementing agency's construction is

reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even

if the agency's reading differs from what the court believes is the best statutory interpretation." (citing

Chevron, 467 U.S. at 843-44, and n.11)).

2. The Meaning of "Conditions"

The Secretary contends that section 1114(o)'s use of the term "conditions" refers to a term

such as "circumstances." Secretary's Br. at 15. Thus, the Secretary reads the language in subsection

(o) as meaning: "[I]f the veteran, as the result of service-connected disability, has suffered disability

under [circumstances (in lieu of "conditions")] which would entitle the veteran to two or more of the

rates under one or more subsections (l) through (n) of this section, no [disability (in lieu of

17

"condition")] being considered twice in the determination . . . the monthly compensation shall be

. . . ." 38 U.S.C. § 1114(o). Although we are mindful of the basic canon of statutory construction

that "identical terms within an Act bear the same meaning,"see Estate of Cowart v. Nicklos Drilling

Co., 505 U.S. 469, 479 (1992), we also recognize that "'[m]ost words have different shades of

meaning and consequently may be variously construed, [even] when [they are] used more than once

in the same statute or . . . section.'" Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007)

(quoting Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)). Thus, "[a] given

term in the same statute may take on distinct characters from association with distinct statutory

objects calling for different implementation strategies." Id.

As noted above, by regulation, VA has interpreted subsection (o) to require that

determinations be based upon "separate and distinct disabilities," 38 C.F.R. § 3.350(e)(3), and that

interpretation is entitled to Chevron deference. Clearly, ascribing identical meaning to "condition"

and "conditions" in subsection (o) would lend itself to a nonsensical reading of subsection (o) as

stating: "If the veteran, as the result of service-connected disability, has suffered disability under

[disability] . . . " 38 U.S.C. § 1114(o). Because such a reading would lead to an absurd result, the

Court is not constrained to resolve the ambiguity of the singular and plural use of the same noun in

subsection (o) by attributing the same meaning to them regardless of their context.

The Court notes that the Secretary's interpretation of "conditions" is supported by consulting

a dictionary to ascertain the term's "ordinary meaning." See Nielson v. Shinseki, 23 Vet.App. 56, 59

(2009) (noting that it is "commonplace to consult dictionaries to ascertain a term's ordinary

meaning"). The noun "condition" in its plural form may be defined as "attendant circumstances."

See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 240 (10th ed. 1999); see also

WEBSTER'S NEW WORLD DICTIONARY 255 (3rd college ed. 1988) (defining "circumstances"

as "conditions surrounding and affecting a person"). In the context of subsection (o), applying this

definition to "conditions" reasonably resolves the ambiguity of the statutory term. See Chevron,

supra; see generally Mead Corp., 533 U.S. at 234-35 (noting that "Chevron did nothing to eliminate

Skidmore's holding that an agency's interpretation may merit some deference whatever its form,

given the 'specialized experience and broader investigations and information' available to the

agency'" (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944))). Thus, in recognition of the

18

fact that "most words have different shades of meaning" and can be "variously construed" the Court

agrees with the Secretary that the term "conditions" in subsection (o) refers generally to

"circumstances."

Accordingly, the Court holds that a claimant who is in receipt of SMC cannot establish

entitlement to a second rate of SMC under section 1114(l) based on the need for aid and attendance

– and, hence, 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.

C. Application To Case

The appellant here is in receipt of SMC under section 1114(l) for loss of use of both feet.

He does not dispute that his need for aid and attendance results from his loss of use of both feet.

Because section 1114(l) requires the need for aid and attendance to be the result of "such significant

disabilities," any second award of SMC under section 1114(l) for aid and attendance would

necessarily be based on the appellant's loss of use of both feet. See Howell v. Nicholson,

19 Vet.App. 535, 538 (2006) (holding that the "[t]he plain and unambiguous language of section

1114(l) requires that a claimant be in need of regular aid and attendance 'as the result of service-

connected disability'" (quoting 38 U.S.C. § 1114(l)). Since section 1114(o) precludes conditions

from "being considered twice" in determining entitlement to two or more rates under sections 1114(l)

through (n), and the Court concluded above that the Secretary's regulation, requiring determinations

to be based on separate and distinct disabilities, is a valid interpretation of subsection (o), the

appellant's loss of use of both feet cannot satisfy the requirement for SMC under section 1114(l) for

both the loss of use of both feet and for being in need of aid and attendance as a result of the loss

of use of both feet. Because the appellant is not entitled to a second rate of SMC under section

1114(l) based on the need for aid and attendance as a result of the loss of use of both feet, the Court

must affirm the Board's February 5, 2009, decision, insofar as the Board denied entitlement to the

higher rate of SMC under section 1114(o). In addition, because the appellant is not entitled to a

higher rate of SMC under section 1114(o), his argument for an even higher rate of SMC under

section 1114(r)(1) is moot.

19

D. Secondary Service Connection

The appellant raises two alternative arguments for remand. As noted above, the appellant

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, supra). He states that the Court

should remand the matter 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 § 1114(l), (o), (r)(1)[,] and § 3.352(a)." Id. at

26. At oral argument, the appellant identified three pages in the record of proceedings, which, he

asserts, reasonably raise a claim that his cold injury aggravated his stroke. See R. at 48, 49, and 151.

The Secretary countered that the appellant did not previously raise a claim for service connection on

a secondary basis and that the documents relied on by the appellant fail to reasonably raise an

allegation that his stroke was caused by or related to his service-connected cold injury. The Court

agrees.

Although the record reflects that the appellant mentioned "left sided[d] weakness

deteriorating at present, [with] limited use of left hand and arm needed to propel [his] wheelchair"

(R. at 151) and that he related his inability to propel his wheelchair to a stroke suffered in 1997 (R.

at 49), none of the documents indicate an intent to apply for VA benefits for his stroke, or in any way

attribute the stroke to his service-connected cold injury. "Although the Board must interpret a

claimant's submissions broadly, 'the Board is not required to conjure up issues that were not raised

by the claimant.'" Brokowski v. Shinseki, 23 Vet.App. 79, 85 (2009) (quoting Brannon v. West,

12 Vet.App. 32, 35 (1998)); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009)

("[C]laims which have no support in the record need not be considered by the Board."); Criswell v.

Nicholson, 20 Vet.App. 501, 503-04 (2006) ("It follows logically that where there can be found no

intent to apply for VA benefits, a claim for such benefits has not been reasonably raised.").

Accordingly, because the appellant has not identified any documents in the record that reasonably

raise a claim that his stroke was aggravated by his service-connected cold injury, the Board did not

err by failing to address this theory of entitlement to benefits. See Robinson, Brokowski, and

20

Criswell, all supra. If the appellant believes that the residuals of his cold injury aggravate his stroke

condition, he is free to pursue that claim at the RO, and initiate an appeal from any adverse

determination.

E. Higher Rate of SMC Under Section 1114(p)

The appellant's second argument for remand is that he is entitled to a higher rate under

subsection (p), which allows for an intermediate rate or a full higher rate where a veteran's "service-

connected disabilities exceed the requirements for any of the rates prescribed in this section."

Appellant's Br. at 27-28. The Secretary argues that subsection (p) was not applicable to the

appellant's claim at the time of the Board's decision because 38 C.F.R. § 3.350(f) does not specify

the appellant's condition as one of the instances in which the next higher rate or an intermediate rate

may be awarded. Secretary's Br. at 22.

In this instance, the Court agrees with the appellant that the Board erred when it failed to

consider his entitlement to a higher rate of SMC under subsection (p). See Schafrath v. Derwinski,

1 Vet.App. 589, 592-93 (1991) (holding that the Board is required to discuss in its decision all

"potentially applicable" provisions of law and regulation) (citing 38 U.S.C. § 7104(a)). Subsection

(p) provides for half- or full-step increases to the next higher rate in subsections (l) through (n) for

a veteran whose condition exceeds the requirements of his current rate, but does not qualify for the

next higher rate. 38 U.S.C. § 1114(p).

Here, there is no dispute that the Board favorably found that the appellant's "residuals of a

cold injury . . . render [him] wheelchair bound and result in [his] being unable to get around by

himself or perform several activities of daily living, including bathing, without aid and attendance

of another." R. at 4. It cannot reasonably be disputed that a veteran who has suffered the loss of use

of both feet and is in need of regular aid and attendance of another is more disabled than a veteran

who has suffered the loss of use of both feet but does not require the aid and attendance of another.

While the appellant's condition does not warrant the assignment of the maximum (o) rate because

of the statutory prohibition that "no condition be[] considered twice in the determination," it appears

that the appellant's overall service-connected condition exceeds the requirements of subsection (l)

in that he has suffered both the loss of use of both feet and is with such significant disability that he

requires the aid and attendance of another.

21

In its decision, the Board discussed only section 1114(l) and (o). Therefore, it is not apparent

that the Board considered the potential applicability of section 1114(p). This failure to consider the

appellant's eligibility for a higher rate of SMC constitutes remandable error. See AB v. Brown,

6 Vet.App. 35, 38 (1993) (holding that claimants on both original claims and claims for increased

disability are "presumed to be seeking the maximum benefit allowed by law and regulation"). The

Court is not persuaded by the Secretary's argument that the appellant is not entitled to a higher rate

under subsection (p) solely because his condition is not one of the enumerated instances provided

in 38 C.F.R. § 3.350(f). Nothing in the statute or the regulation indicates that the list provided in

§ 3.350(f) is intended to be exclusive, nor does the Secretary provide any support for that reading

of the regulation. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156

(1991) ("'[L]itigation positions' are not entitled to deference when they are merely appellate counsel's

'post hoc rationalizations' for agency action advanced for the first time in the reviewing court."). The

Court will therefore remand the matter to the Board to consider in the first instance whether the

appellant's overall service-connected disability picture exceeds the requirements of section 1114(l)

such that he is entitled to an intermediate rate or a full higher rate under section 1114(p).

On remand, the appellant is free to submit additional evidence and argument on the remanded

matters, and the Board is required to consider any such relevant evidence and argument. See Kay

v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional

evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West,

12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant

to entail a critical examination of the justification for the decision." Fletcher v. Derwinski,

1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.

§ 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court).

V. CONCLUSION

After consideration of the appellant's and the Secretary's pleadings, and a review of the

record, the Board's February 5, 2009, decision is AFFIRMED IN PART and VACATED IN PART,

and the vacated matter is REMANDED for further proceeding consistent with this decision.

22

KASOLD, Chief Judge, concurring in part, dissenting in part. Congress explicitly authorized

in 38 U.S.C. §1114 (o) higher benefits for veterans with two "conditions" listed in subsections (l)

through (n) of the same statute, provided no "condition" is considered twice in the determination.

Although the Secretary agreed at oral argument that the loss of both feet does not regularly warrant

aid and attendance,5 the Board found that Mr. Breniser's service-connected loss of both feet was such

that he was in need of regular aid and attendance, two conditions listed in subsection (l) (i.e., loss

of both feet and regular aid and attendance). Thus, under the plain reading of 38 U.S.C. §1114 (o),

Mr. Breniser is entitled to higher benefits. Yet, today the majority sanction a longstanding

regulation, previously existing in "splendid isolation," that is in clear contravention of the statute.

Brown v. Gardner, 513 U.S. 115 (1994) (noting the "splendid isolation" in which VA regulations

existed for many years). This we should not do for the very same reasons stated in Brown v.

Gardner.

The Secretary recognizes his regulation contravenes the statute, and this is most succinctly

demonstrated by his need to substitute words for those chosen by Congress. Although Congress uses

the word "disability" throughout section 1114 and only uses the word "condition" (and its plural) in

subsection (o), the Secretary argues that Congress really meant to use "disability" instead of

"condition." Such re-drafting of legislation should not be condoned. Bradley v. Peak, 22 Vet.App.

280, 291 (2008) ("'"Congress expresses its intent through the language it chooses" and that the choice

of words in a statute is therefore deliberate and reflective.'" (quoting 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))); see also United States v. LaBonte, 520 U.S. 751, 757 (1997) ("[W]e assume that

in drafting this legislation, Congress said what it meant."); Gardner, supra (rejecting a longstanding

regulation that imposed a negligence requirement that was not in the statute); Barrett v. United

States, 423 U.S. 212, 217 (1976) ("Congress knew the significance and meaning of the language it

5

See 38 C.F.R. § 3.352(a) (2011) (listing the criteria for being in need of "aid and

attendance": such as the inability to dress oneself, inability to keep oneself clean, inability to adjust

a prosthetic or orthopedic appliance that a normal person would be able to adjust without aid,

inability to feed oneself, inability to attend the wants of nature, and the incapacity to protect oneself).

23

employed . . . . Had Congress intended to confine [the statute], it would have so provided, just as

it did in other sections.").

The majority find support for the Secretary's regulation in legislative history, but this support

is elusive. First, legislative history cannot trump legislation. See, e.g., Van Wersch v. Dep't of

Health & Human Servs., 197 F.3d 1144, 1152 (Fed. Cir. 1999) (holding that congressional intent,

as expressed in legislative history, cannot "trump the irrefutably plain [statutory] language that

emerged when Congress actually took pen to paper"). Second, the legislative history here is

ambiguous at best, and any ambiguity in the text would be resolved in the veteran's favor. Cf. Nat'l

Org. of Veterans' Advocates, Inc. v. Sec'y of VA, 260 F.3d 1365, 1378 (Fed. Cir. 2001) ("[I]t is a

well-established rule of statutory construction that when a statute is ambiguous, 'interpretive doubt

is to be resolved in the veteran's favor.'" (quoting Gardner, 513 U.S. at 118)). The legislative history

provides no clear elaboration on the statute's use of the word "condition." Rather, the legislative

history primarily sheds light on Congress's overarching purposes for implementing subsection (o),

which were to (1) provide additional rates of compensation for veterans with "specific service-

incurred disabilities in excess of total disability," 91 CONG . REC . at 1780, and (2) make

"helplessness" compensable, Memorandum from O.W. Clark, Assistant Adm'r, Veterans Admin.,

to Frank T. Hines, Adm'r, Veterans Admin. (May 23, 1994). Congress's intent, if anything, reflects

its intent to provide benefits to our veterans based on their disabilities. Succinctly stated, nothing

evinces an intent to deny a veteran needing aid and attendance due to a serious service-connected

disability such as loss of both feet from receiving a greater benefit than a veteran who had loss of

both feet but no need for aid an attendance.

The majority's concern that the phrase "no condition being considered twice" would have no

meaning if not rewritten as the Secretary desires is unfounded. As written by Congress, the phrase

is clear and has clear meaning. See Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin.

Corp., 474 U.S. 361, 368 (1986) ("The traditional deference courts pay to agency interpretation is

not to be applied to alter the clearly expressed intent of Congress."); see also Chevron U.S.A. Inc.

v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). For example, benefits are provided

for the loss of both feet in subsection (l) and for the loss of both legs in subsection (m). The veteran

with loss of both legs is not entitled to the higher benefit in subsection (o) because he has loss of

24

both legs, which includes loss of both feet. There are multiple, similar conditions in subsections (l)

through (n) that Congress precluded from being considered twice under subsection (o).

For the reasons stated above, I dissent from the majority's holding that Mr. Breniser is not

entitled to a higher rate of SMC under 38 U.S.C. § 1114(o).

However, I agree with the majority that the Board, having denied benefits under subsection

(o), erred in not considering benefits under subsection (p), which could provide an equal or lesser

benefit – although this issue could be mooted if Mr. Brensier were awarded benefits under subsection

(o).

25