Guillory v. Dept. Of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
__________________________
JOHN L. GUILLORY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7047
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 06-2926, Judge Lawrence B.
Hagel.
___________________________
Decided: January 3, 2012
___________________________
MARK A. DELPHIN, Delphin Law Offices, PC, of Lake
Charles, Louisiana, for claimant-appellant.
SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
GUILLORY v. DVA 2
Assistant General Counsel, and BRIAN D. GRIFFIN, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
__________________________
Before LINN, DYK, and REYNA, Circuit Judges.
DYK, Circuit Judge.
John L. Guillory (“Guillory”) appeals from a decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”). The Veterans Court affirmed the
Board of Veterans’ Appeals (“the Board”) decision finding
no clear and unmistakable error (“CUE”) in decisions
declining to award him additional special monthly com-
pensation for aid and attendance retroactive to 1966.
Guillory v. Shinseki, No. 06-2926, 2010 WL 4239763 (Vet.
App. Oct. 28, 2010). We affirm.
BACKGROUND
This is the second appeal arising from this case and
the background is set forth in more detail in this court’s
previous decision. Guillory v. Shinseki, 603 F.3d 981,
984–86 (Fed. Cir. 2010) (“Guillory I”). In short, Guillory
asserted that as a result of service-related injuries, he
suffered, inter alia, complete loss of use of his entire right
arm and of both legs from the waist down, as well as
injuries to his buttocks, thighs, hips, and torso. He was
honorably discharged on October 27, 1966. In a June
1967 regional office (“RO”) decision, Guillory was
awarded, effective on the date of his discharge, compensa-
tion at the total disability rate under 38 U.S.C. § 314(j)
(1964), 1 additional special monthly compensation at the
1 At the time of Guillory’s first claim for disability
compensation, the statutory provision governing disability
compensation was found at 38 U.S.C. § 314 (1964). This
provision was subsequently recodified at 38 U.S.C. § 1114.
3 GUILLORY v. DVA
rate between subsections (l) and (m), and an award under
subsection (k). The RO did not award Guillory aid and
attendance because the law in 1967 required the veteran
to have a special monthly compensation rating of (o) to be
eligible. 38 U.S.C. § 314(r) (1964). In 1970, the RO
determined that there was CUE in the 1967 decision and
awarded Guillory special monthly compensation under
subsection (m) based on the loss of use of his legs in
addition to an award under subsection (k) for the loss of
use of his right hand, retroactive to October 27, 1966.
Guillory nonetheless fell short of the (o) rating required
for aid and attendance at that time.
Over the next decade, due to intervening changes in
the law, Guillory’s rating increased two half-steps to the
rate under subsection (n). In 1979, the law was amended
to provide that a veteran is eligible for aid and attendance
if he is entitled to receive either (1) at least the rate under
subsection (o) or (2) the intermediate rate between sub-
sections (n) and (o) (sometimes referred to as “(n ½)”) and
a separate award under subsection (k). Veterans’ Disabil-
ity Compensation and Survivors’ Benefits Amendments of
1979, Pub. L. No. 96-128, § 104, 93 Stat. 982, 984.
Guillory’s case was not reviewed again until 1992, at
which time the RO granted service connection for a sei-
zure disorder and awarded Guillory a 100% disability
rating. Because this additional independent disability
qualified Guillory for a full-step increase in his special
monthly compensation rating from (n) to (o) pursuant to
38 C.F.R. § 3.350(f)(4), and because he was receiving
compensation under subsection (k), he was then eligible
Department of Veterans Affairs Codification Act, Pub. L.
No. 102-83, § 5, 105 Stat. 378, 406 (1991). Throughout
the opinion, we cite to the statutes applicable as of the
date of the relevant RO decision.
GUILLORY v. DVA 4
for and was awarded aid and attendance under subsection
(r), effective May 1991, the date of the seizure diagnosis.
In September 2001, Guillory asserted a claim of CUE
based on the RO’s failure to award him special monthly
compensation for aid and attendance effective the date of
his original rating in 1966. He appealed an adverse RO
decision to the Board in 2003, making two specific claims
for earlier entitlement to aid and attendance. First,
Guillory argued that the date of onset for his seizure
disorder was earlier than May 1991. Second, he argued
that the ratings in the initial 1967 RO decision did not
properly account for the loss of use of his right and left
trunk through the knee and buttocks. The Board con-
cluded in its 2003 decision that the various ratings deci-
sions in Guillory’s case were not the product of CUE. On
appeal, the Veterans Court remanded for further consid-
eration of both of Guillory’s claims.
In its 2006 remand decision, the Board again refused
to assign an effective date for aid and attendance before
May 1991, holding that there was no CUE in the refusal
to grant an earlier effective date for his seizure disorder.
The Board, however, did not specifically address
Guillory’s second claim related to the additional injuries
to his trunk and buttocks. On appeal, the Veterans Court
held that it did not have jurisdiction over Guillory’s
claims of CUE for the RO’s failure to independently rate
him for his additional injuries because the issue had not
been preserved.
In Guillory I, we reversed the Veterans Court’s deci-
sion that it lacked jurisdiction. 603 F.3d at 986–87. We
held that Guillory had in fact always maintained, and the
Board had addressed in its 2003 decision, “the contention
that he was mistakenly rated independent of the seizure
disorder, due to the loss of use of his right and left trunk
5 GUILLORY v. DVA
through knee and buttocks, thus entitling him to a higher
rating retroactive to 1966.” Id. at 987. We remanded to
the Veterans Court to address this claim on the merits.
Id.On remand, the Veterans Court considered Guillory’s
arguments but found that it was “clear from the Board’s
discussion that the prior regional office decisions ac-
counted for Mr. Guillory’s complaints regarding the loss of
use of his right and left trunk through the knees, includ-
ing the buttocks, when they evaluated his condition under
subsection (m).” Guillory, 2010 WL 4239763, at *7. The
Veterans Court held that because “Mr. Guillory’s argu-
ments amount[ed] only to a disagreement with how the
facts were weighed by the regional office,” “the Board’s
finding of no clear and unmistakable error in the previous
regional office decision[] [was] not ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law,’ and [was] supported by an adequate statement
of reasons or bases.” Id. at *8 (quoting 38 U.S.C.
§ 7261(a)(3)(A)).
Guillory timely appealed the Veterans Court’s deci-
sion, and jurisdiction is asserted under 38 U.S.C.
§ 7292(a).
DISCUSSION
I
At the outset, the VA challenges our jurisdiction over
this appeal. Pursuant to 38 U.S.C. § 7292(a), as amended
in 2002, this court has appellate jurisdiction “with respect
to the validity of a decision of the [Veterans] Court on a
rule of law or of any statute or regulation . . . or any
interpretation thereof . . . that was relied on by the Court
in making the decision.” Despite the VA’s arguments to
the contrary, Guillory makes arguments concerning the
GUILLORY v. DVA 6
interpretation of the governing disability compensation
statutes and regulations in his favor. Because “the deci-
sion below regarding a governing rule of law would have
been altered by adopting the position being urged [by
Guillory], this court has [‘rule of law’] jurisdiction to
entertain the matter.” Wilson v. Principi, 391 F.3d 1203,
1208 (Fed. Cir. 2004) (quoting Morgan v. Principi, 327
F.3d 1357, 1363 (Fed. Cir. 2003)). Accordingly, this court
may decide all relevant questions of law, 38 U.S.C.
§ 7292(d)(1), and legal determinations of the Veterans
Court are reviewed de novo. Willsey v. Peake, 535 F.3d
1368, 1372 (Fed. Cir. 2008).
II
The issue is whether the Veterans Court correctly in-
terpreted the disability compensation scheme in deter-
mining that there was no CUE in the decision to deny
Guillory aid-and-attendance benefits back to 1966, not
whether the application of the law to the particular facts
of this case was correct. See Willsey, 535 F.3d at 1372. In
1967, when Guillory first filed a claim for compensation
under the VA’s disability compensation scheme, the
statute governing aid and attendance provided: “If any
veteran, otherwise entitled to the compensation author-
ized under subsection (o) of this section . . . is in need of
regular aid and attendance, he shall be paid, in addition
to such compensation, a monthly aid and attendance
allowance . . . .” 38 U.S.C. § 314(r) (1964). The VA does
not dispute that, as early as 1966, the evidence demon-
strated that Guillory was “in need of regular aid and
attendance.” Resp’t-Appellee’s Br. 39. The parties dis-
agree, however, as to whether the other statutory criteria
were met at that time.
Guillory makes two primary arguments that he met
the statutory requirements for aid and attendance in 1967
7 GUILLORY v. DVA
and thus that the initial 1967 RO decision was the prod-
uct of CUE. First, Guillory argues that in 1967 he should
have qualified for the rate under subsection (o), and thus
aid and attendance, because he “suffered disability under
conditions which would entitle him to two or more of the
rates provided in one or more subsections (l) through (n)
of [§ 314], no condition being considered twice in the
determination.” 38 U.S.C. § 314(o) (1964). Specifically,
he argues that he was entitled to at least two of the
following rates: (1) a rate under subsection (l) for having
lost a hand and a foot; (2) a rate under subsection (m) for
having suffered the loss of use of “two extremities [his
legs] . . . preventing natural . . . knee action with prosthe-
sis in place”; and (3) a rate under subsection (n) for having
lost “two extremities [i.e., his legs] so near the . . . hip as
to prevent the use of a prosthetic appliance.” 2 See id.§ 314(l)–(n). Guillory asserts that, under a proper inter-
pretation of subsection (o), these awards would not be
duplicative.
This issue turns on whether the restriction in subsec-
tion (o) that “no condition be[] considered twice” should be
interpreted to allow a veteran to recover separately for
2 Guillory also alleges CUE in the 1967 RO decision
because he was originally awarded for only the loss of use
of one hand and one foot. This error, however, was al-
ready corrected in subsequent RO decisions that found
CUE in the 1967 decision, and Guillory was awarded
benefits retroactively to October 27, 1966, the date of his
discharge. See Guillory v. Peake, No. 06-2926, 2008 WL
5155291, at *1 (Vet. App. Dec. 9, 2008). When it is found
that a decision by an RO contains CUE, it is “revised” to
correct the error and it “has the same effect as if the
decision had been made on the date of the prior decision.”
38 U.S.C. § 5109A(a)–(b). When the RO found CUE in its
1967 decision, the decision was effectively revised to no
longer contain the error. Thus, the 1967 RO decision no
longer contains this error alleged by Guillory.
GUILLORY v. DVA 8
the loss of use of his legs and the loss of use of his feet.
The VA regulations interpreting this requirement in 1967
stated that “[d]eterminations must be based upon sepa-
rate and distinct disabilities.” 38 C.F.R. § 3.350(e)(2)
(1967).
Concluding that the loss of use of a foot is a separate
and distinct injury from the loss of use of the leg would
allow any veteran who anatomically lost both of his legs
under subsection (n) to automatically qualify for a higher
rate under subsection (o) because he necessarily would
also have anatomically lost both of his feet under subsec-
tion (l). This would render part of subsection (n) meaning-
less because veterans who anatomically lost both legs
would always be covered by subsection (o). We also note
that a separate regulation, in discussing the bilateral
factor for combining disabilities, states: “The use of the
term[] . . . ‘legs’ is not intended to distinguish between the
. . . thigh, leg, and foot, but relates to the . . . lower ex-
tremities as a whole.” 38 C.F.R. § 4.26(a) (1967). This
distinction is equally applicable here. Thus, it is clear
that an injury to a leg subsumes any injury to the foot,
and that Guillory’s interpretation is in error. The Veter-
ans Court did not err in holding that the loss of use of a
foot is subsumed within, and not separate and distinct
from, the loss of use of a leg.
Guillory’s second argument is that in the 1967 RO de-
cision he was not awarded for other injuries, particularly
the loss of use of his buttocks, which should have entitled
him to an additional half-step increase under 38 C.F.R.
§ 3.350(f)(3), thus putting him at the rate between subsec-
tions (n) and (o) and entitling him to aid and attendance.
To be eligible for a half-step increase, “the disability or
disabilities independently ratable at 50 percent or more
must be separate and distinct and involve different ana-
tomical segments or bodily systems from the conditions
9 GUILLORY v. DVA
establishing entitlement under 38 U.S.C. 314 (l) through
(n).” 38 C.F.R. § 3.350(f)(3) (1967). Because Guillory was
entitled to special monthly compensation under subsec-
tion (m) based on the loss of use of his legs, there is a
question here whether, under this regulation, an injury to
the legs is “separate and distinct and involve[s] different
anatomical segments” from injuries to buttocks, hips, and
trunk.
We need not resolve this question, though, since the
premise of Guillory’s argument misinterprets the relevant
statutes. Because Guillory’s claim requires a showing of
CUE in the 1967 RO decision, we must assess his claim
based on 1967 law. The law in 1967 required a rating
under subsection (o) to qualify for aid and attendance.
See 38 U.S.C. § 314(r) (1964). The law was not changed to
allow aid and attendance based on an (n ½) + (k) rating
until 1979. Veterans’ Disability Compensation and Sur-
vivors’ Benefits Amendments of 1979, Pub. L. No. 96-128,
§ 104, 93 Stat. 982, 984. Thus, even if Guillory were
entitled to an (n ½) rating in the 1967 RO decision based
on an additional half-step increase for his additional
injuries, an issue we do not decide, he still would not be
eligible for aid and attendance at that time.
Finally, we note that Guillory appears to urge on ap-
peal two arguments not raised below. Guillory argues
that awards should have been made in 1967 for the loss of
use of both thighs, both buttocks, both hips, and the upper
right torso, thus entitling him to two full-step increases to
the rating under subsection (o) and, therefore, to aid and
attendance. Guillory, however, did not raise this particu-
lar argument before the Veterans Court or the Board. So
too the issue of whether Guillory was entitled to an addi-
tional half-step increase in 1979, after the statutory
change, based on his buttocks or other injuries—thus
giving him an award of (n ½) + (k) and entitling him to
GUILLORY v. DVA 10
aid and attendance due to the intervening change in
law—was not raised or addressed below, nor is it clear
how such a claim would be supported by a CUE theory.
Because these arguments were not raised below, we do
not address them here. If Guillory wishes to pursue
either of these theories, he must first raise them with
specificity before the RO.
All of Guillory’s remaining arguments are disagree-
ments with how the facts were weighed or how the law
was applied to the facts in this particular case, which we
do not have jurisdiction to review. 38 U.S.C. § 7292(d)(2).
Based on our interpretations of the statutes at issue, we
see no error in the Veterans Court opinion and therefore
affirm.
AFFIRMED
COSTS
No costs.