FREDERICK C. GAZELLE, Claimant-Appellant
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 14-2272, Chief Judge Robert N. Davis, Senior Judge
William A. Moorman, Judge Mary J. Schoelen.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for claimant-appellant.
COURTNEY D. Enlow, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by Scott
D. Austin, Robert E. Kirschman, Jr., Benjamin C. Mizer;
Martie Adelman, Brian D. Griffin, Office of General Counsel,
United States Department of Veterans Affairs, Washington, DC.
Prost, Chief Judge, O'MALLEY and WALLACH, Circuit Judges.
WALLACH, CIRCUIT JUDGE.
Frederick C. Gazelle appeals the decision of the U.S. Court
of Appeals for Veterans Claims ("Veterans Court"),
which affirmed the Board of Veterans' Appeals
("Board") decision denying entitlement to special
monthly compensation under 38 U.S.C. § 1114(s)(1)
(2012). See Gazelle v. McDonald, 27 Vet.App. 461,
462-63 (2016). We affirm.
Gazelle served in the U.S. Army from 1962 to 1965, during
which time he incurred several service-connected
disabilities. See id. at 463. Mr. Gazelle now
receives compensation for: (1) degenerative disc disease and
joint disease of the cervical spine rated at twenty percent;
(2) degenerative disc disease and spondylosis of the
thoracolumbar spine rated at twenty percent; (3) left upper
extremity radiculopathy rated at ten percent; (4) left lower
extremity radiculopathy rated at ten percent; and (5)
post-traumatic stress disorder. Id. In December
2009, a U.S. Department of Veterans Affairs ("VA")
decision review officer increased Mr. Gazelle's
disability rating for his service-connected post-traumatic
stress disorder to 100 percent. See J.A. 40, 46.
2010, Mr. Gazelle filed a Notice of Disagreement with the
2009 determination, alleging the VA failed to award him
additional special monthly compensation under §
1114(s)(1). See J.A. 48-49. Subsequently, in
2011, Mr. Gazelle was denied entitlement to special monthly
compensation because he did not have additional
service-connected "disabilities . . . independently
ratable as [sixty percent] or more disabling." J.A. 65.
Instead of adding together Mr. Gazelle's additional
service-connected disabilities at their respective amounts,
the VA calculated the independent additional rating via the
combined ratings table pursuant to 38 C.F.R. § 4.25
(2010), which resulted in a combined rating of fifty percent.
See J.A. 62, 65. In March of 2014, the Board
affirmed the denial of entitlement to special monthly
compensation using the same reasoning articulated by the VA.
See J.A. 76-78 (applying 38 C.F.R. § 4.25).
Gazelle appealed the Board's decision to the Veterans
Court. The Veterans Court held "that consistent with the
plain meaning of subsection 1114(s), the Board appropriately
applied the combined ratings table to determine eligibility
for [special monthly compensation] benefits, " and
affirmed the Board's March 2014 decision.
Gazelle, 27 Vet.App. at 463; see id. at
471. Mr. Gazelle appeals the Veterans Court's decision.
Standard of Review
jurisdiction of this court to review decisions of the
Veterans Court is limited by statute. See 38 U.S.C.
§ 7292; Forshey v. Principi,284 F.3d 1335,
1338 (Fed. Cir. 2002) (en banc), superseded on other
grounds by statute, Pub. L. No. 107-330, § 402(a),
116 Stat. 2820, 2832 (2002). We "have exclusive
jurisdiction to review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof brought under [§ 7292], and to interpret
constitutional and statutory provisions, to the extent
presented and necessary to a decision." 38 U.S.C. §
7292(c). "Except to the extent that an appeal . . .
presents a constitutional issue, [we] may not review (A) a
challenge to a factual determination, or (B) a challenge to a
law or regulation as applied to the facts of a particular
case." Id. § 7292(d)(2). Because Mr.
Gazelle challenges the Veterans Court's interpretation of
§ 1114, we have exclusive ...