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Gazelle v. Shulkin

United States Court of Appeals, Federal Circuit

August 22, 2017

FREDERICK C. GAZELLE, Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

         Appeal 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.

          Before Prost, Chief Judge, O'MALLEY and WALLACH, Circuit Judges.

          WALLACH, CIRCUIT JUDGE.

         Appellant 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.

         Background

         Mr. 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.

         In 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).[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).

         Mr. 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.

         Discussion

         I. Standard of Review

         The 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 ...


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