Gazelle v. McDonald, 27 Vet.App, 461 (February 2, 2016)
HELD: 38 U.S.C. § 1114(s) provides special monthly compensation (SMC) for veterans with one disability rated 100% and a separate disability or disabilities independently ratable at 60% or more. Where there are multiple additional disabilities, it is appropriate to use the combined ratings table, 38 C.F.R. § 4.25, to determine whether those disabilities are “ratable at 60% or more.” It is not appropriate to simply add the ratings together.
SUMMARY: Mr. Gazelle was service connected for PTSD, rated 100% disabling. He also was service connected for conditions of the neck (20%), back (20%), left upper extremity radiculopathy (10%), and left lower extremity radiculopathy (10%). Under the combined rating table, his additional disabilities amounted to a 50% rating, and the RO thus denied SMC under 38 U.S.C. § 1114(s).
He appealed to the Court, arguing that his additional disability ratings should be added together and not combined. He argued that his position was supported by the plain language of the statute, by VA’s implementing regulation, and by the pro-veteran nature of the VA benefits scheme.
The Court disagreed. The Court first examined how section 1114(s) fit into the statutory scheme that included sections 1155 (authorizing the Secretary to create a rating schedule) and 1157 (allowing for the “combination” of ratings). Section 1114(s) requires (1) a single disability rated 100% disabling (i.e., NOT multiple disabilities that combine to a 100% rating) and (2) “additional service-connected disability or disabilities independently ratable at 60 percent or more.”
Mr. Gazelle argued that there was a distinction in the awards provided for in sections 1114(a) through (j) and (k) through (t) – specifically, that (k) through (t) require the veteran to have a disability rated as total. Because of this distinction, he argued that the combined ratings table only applies when a veteran does not have a disability already rated as total, and thus did not apply to subsections (k) through (t). The Court disagreed, finding that there was nothing in section 1114 that precluded the use of the combined ratings table to some subsections, but not others.
The Court rejected Mr. Gazelle’s argument that the word “independently” in the statute suggested that each additional disability are not only independent of the one condition already rated 100%, but also independent of each other. The Court found that this rationale would result in the additional disabilities not being “pooled” at all – and that this interpretation would result in VA requiring a single additional disability rated 60%. The Court found that this was not supported by the statute, which requires one condition rated 100% (or one condition rated total based on unemployability) and additional disability or disabilities rated 60% or more.
The Court added that the word “ratable” and “rated” are not interchangeable. The first criterion of section 1114(s) requires a disability “rated” 100% disabling; whereas the second criterion requires a disability or disabilities “ratable” at 60% or more. The Court stated that “the combined ratings table is the only method VA employs to rate multiple disabilities together . . . , and it was also the method employed when subsection 1114(s) was enacted.” The Court thus held that “[s]ubsection 1114(s)(1) allows for the possibility of multiple disability ratings being rated together at 60% or more. The only way multiple disabilities are ratable – or capable of being rated – in the VA system requires combining them using § 4.25.”