Guerra v. Shinseki

United States Court of Appeals
for the Federal Circuit
__________________________

LIONEL GUERRA,
Claimant-Appellant,

v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________

2010-7080
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-223, Judge William A.
Moorman.
___________________________

Decided: April 29, 2011
___________________________

ZACHARY M. STOLZ, Chisholm, Chisholm & Kilpatrick,
of Washington, DC, argued for claimant-appellant.

LAUREN A. WEEMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
GUERRA v. DVA 2

sel on the brief was MICHAEL J. TIMINSKI, Deputy Assis-
tant General Counsel, and RACHAEL T. SHENKMAN, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
__________________________

Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON.
Dissenting opinion filed by Circuit Judge GAJARSA.

BRYSON, Circuit Judge.

This case requires us to construe one of the statutes
providing benefits for disabled veterans. The issue on
appeal is whether the Court of Appeals for Veterans
Claims (“the Veterans Court”) correctly interpreted a
statute that provides additional monthly compensation to
certain severely disabled veterans. We hold that it did,
and we affirm.

Pursuant to congressional direction, the Department
of Veterans Affairs (“DVA”) has promulgated a “disability
ratings schedule” that it uses to determine the level of a
veteran’s disability and thus the amount of the veteran’s
monthly disability benefits. The ratings in the table are
based on the agency’s assessment of the reduction in the
average veteran’s earning capacity that results from
various service-connected injuries, diseases, or conditions.
38 U.S.C. § 1155; 38 C.F.R. § 4.1; see Guillory v. Shinseki,
603 F.3d 981, 983 (Fed. Cir. 2010). A particular disability
can be rated in ten percent increments from 0% to 100%
(total disability). The rating assigned to a particular
disability under the ratings table is referred to as the
schedular rating. The veteran’s schedular rating governs
the veteran’s entitlement to compensation at the statu-
tory levels provided in subsections 1114(a)–(j). A veteran
3 GUERRA v. DVA

rated at 10% has, on average, 90% of the earning capacity
of a nondisabled individual and receives compensation at
the rate established in subsection 1114(a). A veteran who
is rated at 100% is deemed to be totally disabled and
receives compensation at the rate established in subsec-
tion 1114(j).

Some disabled veterans have multiple service-
connected disabilities. To determine the veteran’s overall
disability rating in such cases, the DVA rates each dis-
abling condition individually (unless otherwise provided
in the ratings schedule). 38 C.F.R. § 4.25; see Amberman
v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009). The
DVA then combines all the individual ratings, as directed
by the “combined ratings table,” 38 C.F.R. § 4.25, to
calculate the veteran’s combined disability rating. Com-
pensation for the combined rating is then calculated
according to the statutory schedule in section 1114.

In addition to having a schedular rating of 100%, a
veteran can also be rated as totally disabled, and thus
entitled to benefits at the statutory level for total disabil-
ity, if the veteran is unable to maintain gainful employ-
ment as a result of service-connected disability. In that
case, even if the veteran does not qualify for a schedular
rating of 100%, the Secretary can rate the veteran as
“totally disabled based on individual unemployability,” a
rating referred to as TDIU. 38 C.F.R. § 4.16(b). If the
veteran’s claim for a total disability rating predicated on
TDIU is based on “one . . . disability,” that disability must
be ratable at 60% or more under the rating schedule. For
the purpose of TDIU, “one disability” includes multiple
disabilities resulting from a single accident and multiple
disabilities affecting a single bodily system. Id. § 4.16(a).
GUERRA v. DVA 4

Some exceptionally disabled veterans who are rated
as totally disabled are entitled to extra monthly compen-
sation over and above the “total” rate provided in 38
U.S.C. § 1114(j). This case requires us to construe one of
those special monthly compensation provisions, 38 U.S.C.
§ 1114(s). That statute provides $320 in additional
monthly compensation above the rate for total disability
to a veteran with “a service-connected disability rated as
total” if the veteran either has another independently
rated disability or combination of disabilities rated at
60%, or is permanently housebound by reason of service-
connected disability.

I

Appellant Lionel Guerra served on active duty in the
United States Marine Corps from 1966 to 1968 and suf-
fered service-connected injuries. Most of his injuries
resulted from a single combat incident. The regional
office awarded Mr. Guerra a 70% rating for an upper-
extremity gunshot wound, a 70% rating for post-
traumatic stress disorder, a 40% rating for injuries to his
left leg and thigh, a 40% rating for injuries to his right leg
and thigh, and a 30% rating for neuropathy. None of his
disabilities is individually rated at 100%, but his indi-
vidually rated disabilities combine to a rating of 100%,
i.e., total disability. His rating of total disability is not
based on TDIU, however.

The Veterans Court held that Mr. Guerra did not
meet the threshold requirement for special monthly
compensation under subsection 1114(s) because none of
his disabilities is independently rated as total. In con-
struing the statute, the court followed its earlier decision
in Bradley v. Peake, 22 Vet. App. 280, 289-90 (2008), in
which the court held that a veteran with a schedular
5 GUERRA v. DVA

rating of total disability must have a single disability
rated at 100% in order to qualify for benefits under sub-
section 1114(s). 1 The court rejected the argument that a
veteran is entitled to benefits under subsection 1114(s) if
the veteran suffers from several disabilities, no one of
which is rated at 100%, even if the veteran’s combined
disability rating is 100%.

Mr. Guerra appeals, contending that benefits under
subsection 1114(s) should be available to veterans who
are rated as totally disabled, regardless of whether the
veteran has a single disability rated at 100% or a com-
bined rating of 100% based on multiple disabilities, no
one of which is rated at 100%.

II

The relevant portion of subsection 1114(s) states that
a veteran is to receive special monthly compensation
under the following conditions:

If the veteran has a service-connected disabil-
ity rated as total, and

(1) has additional service-connected disability
or disabilities independently ratable at 60 percent
or more, or,

1 The Veterans Court in Bradley held that a vet-
eran with a TDIU rating could qualify for compensation
at the subsection 1114(s) rate, but only if the TDIU rating
was based on a single disability. 22 Vet. App. at 293.
Because Mr. Guerra’s disability rating is not based on
TDIU, we do not address whether and in what circum-
stances the benefits of subsection 1114(s) are available to
a veteran with a TDIU rating.
GUERRA v. DVA 6

(2) by reason of such veteran’s service-
connected disability or disabilities, is permanently
housebound[.]

The statute requires “a service-connected disability
rated as total.” The use of the term “a service-connected
disability” suggests, as the Veterans Court held, that the
veteran must have at least one disability that is rated at
100%. While the use of the singular is not by itself dispo-
sitive, the language of subsection 1114(s) and the other
statutory compensation provisions supports the interpre-
tation adopted by the Veterans Court.

Among the seven special monthly compensation pro-
visions in section 1114, the use of the singular indefinite
article in referring to a disability (“a service-connected
disability”) is unique to subsection (s). The first of the
special monthly compensation provisions, subsection
1114(k), states that a veteran is entitled to compensation
“if the veteran, as the result of service-connected disabil-
ity,” has suffered the loss of one or more paired organs or
has suffered any of several other listed conditions. The
next four subsections, (l)-(o), contain the same introduc-
tory language, “as the result of service-connected disabil-
ity.” Subsection (p) provides heightened compensation
when “the veteran’s service-connected disabilities exceed
the requirements for any of the rates prescribed in this
section.”

Even within subsection (s), the statute distinguishes
between a single “disability” and multiple “disabilities.”
To receive benefits at the subsection (s) rate, in addition
to having “a service-connected disability rated as total,”
the veteran must either be housebound by reason of the
veteran’s service-connected disability or have “additional
service-connected disability or disabilities independently
7 GUERRA v. DVA

ratable at 60 percent or more.” Thus, the same sentence
of the statute draws a distinction between a single dis-
ability and multiple disabilities. That distinction is a
strong indication that Congress’s use of the singular and
plural terms was purposeful and that the reference to “a
service-connected disability rated as total” was meant to
refer to a single disability with a 100% rating. Accord-
ingly, the statutory text evidences Congress’s intent to
limit the payment of special monthly compensation under
subsection 1114(s) to a veteran who has at least one
condition that has been rated as totally disabling.

While the language of subsection 1114(s) is not en-
tirely free from ambiguity, we are compelled to defer to
the DVA’s interpretation of subsection 1114(s), and we
uphold the decision of the Veterans Court on that ground.
By regulation, the DVA has interpreted subsection
1114(s) to provide that in order to qualify for benefits
under that statute, the veteran must have a single dis-
ability rated at 100%. That interpretation is entitled to
deference under the principles of Chevron U.S.A. Inc. v.
Natural Resource Defense Council, Inc., 467 U.S. 837, 842-
43 (1984). As applied in this setting, the rule of Chevron
provides that when an agency “has statutory authority to
issue regulations [and] invokes its authority to issue
regulations, which then interpret ambiguous statutory
terms, the courts defer to its reasonable interpretations.”
Fed. Express Corp. v. Holowecki, 552 U.S. 389, 395 (2008);
see Haas v. Peake, 525 F.3d 1168, 1195 (Fed. Cir. 2008).

The DVA’s regulation corresponding to subsection
1114(s) was promulgated under the Secretary’s authority
“to prescribe all rules and regulations which are neces-
sary or appropriate to carry out the laws administered by
the Department,” 38 U.S.C. § 501(a). It provides as
follows: “The special monthly compensation provided by
GUERRA v. DVA 8

38 U.S.C. 1114(s) is payable where the veteran has a
single service-connected disability rated as 100 percent . .
. .” 38 C.F.R. § 3.350(i). That portion of the regulation
has been in effect since 1962. Special Monthly Compen-
sation Ratings, 27 Fed. Reg. 4739 (May 18, 1962). The
regulation’s reference to a “single service-connected
disability rated as 100 percent” resolves any latent ambi-
guity in the statutory language and makes it clear that
subsection 1114(s) benefits are available only if the vet-
eran has a single disability that is rated at 100%. Thus,
under the regulation, subsection 1114(s) benefits are not
available to a veteran such as Mr. Guerra, whose 100%
disability rating is based on multiple disabilities, no one
of which is rated at 100%.

Mr. Guerra argues that the DVA has interpreted its
own regulation to allow certain combined ratings to
satisfy the definition of “single” and thus the statutory
“total” standard. In making that argument, he relies on a
reference to the TDIU rules that was previously contained
in the DVA’s Adjudication Procedure Manual M21-1
(“Manual”) but was removed more than 15 years ago. The
version of the Manual that was in effect between 1965
and 1995 directed the reader to the rules pertaining to
TDIU for a definition of the term “single disability” for
purposes of subsection 1114(s). The pertinent TDIU rule
provided (as it still does) that, for purposes of TDIU
determinations, “one disability” includes multiple dis-
abilities resulting from a single accident and multiple
disabilities affecting a single bodily system. 38 C.F.R.
§ 4.16(a). In 1995, however, before Mr. Guerra filed his
claim for subsection 1114(s) benefits, the DVA deleted the
reference to the TDIU rules from the portion of the Man-
ual dealing with subsection 1114(s).
9 GUERRA v. DVA

While acknowledging that the current version of the
Manual does not support his position, Mr. Guerra argues
that the deletion of the reference to the TDIU rules in
1995 constituted a “substantive rule” and that the agency
was required to comply with the notice-and-comment
rulemaking procedures of the Administrative Procedure
Act (“APA”) before making that change in the Manual.
Because the DVA did not follow those procedures, Mr.
Guerra argues that the change in the Manual is inopera-
tive and that we must defer to the agency’s pre-1995
construction of the term “single” in the statute and the
corresponding regulation.

There is no force to Mr. Guerra’s contention, for two
reasons. To begin with, the premise of Mr. Guerra’s
argument—that the pre-1995 version of the Manual
demonstrates that the DVA interpreted the phrase “a
service-connected disability rated as total” as he does—is
contrary to a more formal and explicit statement of the
agency’s position in the form of a precedential opinion of
the agency’s general counsel issued in 1991. In that
opinion, the agency interpreted the statute and its own
regulation to provide that the “threshold requirement for
entitlement under 38 U.S.C. § 1114(s) is ‘a’ disability
rated as total. If a veteran does not have a single service-
connected disability rated as total (100 percent), he can-
not be eligible for compensation at the 38 U.S.C. § 1114(s)
rate.” VA Op. Gen. Counsel Prec. 66-91 (Aug. 15, 1991).
That formal expression of the agency’s position, see 38
U.S.C. § 7104(c), clearly takes precedence over an infer-
ence drawn from a cross-reference found in a publication
that the DVA has described as “an internal manual used
to convey guidance to VA adjudicators [and] not intended
to establish substantive rules beyond those contained in
statutes and regulations.” 72 Fed. Reg. 66,218, 66,210
(Nov. 27, 2007).
GUERRA v. DVA 10

Moreover, neither the 1995 modification of the Man-
ual nor the general counsel opinion that preceded it
constituted or contained a substantive rule that was
subject to the notice-and-comment requirements of the
APA. A substantive rule represents an agency’s exercise
of the power delegated to it by Congress to “effect a
change in existing law or policy or . . . affect individual
rights and obligations.” Haas, 525 F.3d at 1195. By
contrast, an interpretive rule is one that is “issued by an
agency to advise the public of the agency’s construction of
the statutes and rules which it administers.” Shalala v.
Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995), quoting
Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979).
An interpretive rule thus “represents the agency’s reading
of statutes and rules rather than an attempt to make new
law or modify existing law.” Haas, 525 F.3d at 1195-96
(internal quotations omitted). If the rule in question “is
an interpretation of a statute rather than an extra-
statutory imposition of rights, duties or obligations, it
remains interpretive even if the rule embodies the Secre-
tary’s changed interpretation of the statute.” White v.
Shalala, 7 F.3d 296, 304 (2d Cir. 1993), cited with ap-
proval in Nat’l Org. of Veterans’ Advocates v. Sec’y of
Veterans Affairs, 260 F.3d 1365, 1376 (Fed. Cir. 2001).
The 1991 general counsel opinion explains that the stat-
ute and the agency’s regulation require that a veteran
have a single service-connected disability rated as total.
As such, the general counsel opinion “represents the
agency’s reading of statutes and rules rather than an
attempt to make new law or modify existing law.” Splane
v. West, 216 F.3d 1058, 1063 (Fed. Cir. 2000). Likewise,
the 1995 modification of the Manual simply conforms the
guidance given to VA adjudicators to accord with the
agency’s position set forth in its regulation, as interpreted
in the 1991 general counsel opinion. Thus, neither is
11 GUERRA v. DVA

invalid for failure to comply with the APA’s notice-and-
comment rulemaking requirements. 2

The dissent suggests that any ambiguity in subsection
1114(s) should be resolved in favor of the veteran instead
of by reference to the DVA’s interpretation of a statute
that it has been entrusted to administer. In Sears v.
Principi, however, we rejected the argument that the pro-
veteran canon of construction overrides the deference due
to the DVA’s reasonable interpretation of an ambiguous
statute. 349 F.3d 1326, 1331-32 (Fed. Cir. 2003) (“Where,
as here, a statute is ambiguous and the administering
agency has issued a reasonable gap-filling or ambiguity-
resolving regulation, we must uphold that regulation.”);
see also Haas, 544 F.3d at 1308; Terry v. Principi, 340
F.3d 1378, 1384 (Fed. Cir. 2003).

In sum, we conclude that subsection 1114(s) requires
that a disabled veteran whose disability level is deter-

2 Of course, the question whether a particular pro-
vision is substantive or interpretive for purposes of the
APA is not resolved simply by the title of the document in
which the provision is found. If an agency announces new
substantive rules, those rules are subject to the proce-
dural requirements of 5 U.S.C. § 553 even if they are not
formally published as agency regulations. The Veterans
Court has in the past found that certain provisions of the
Manual constituted substantive rules for purposes of the
APA. See, e.g., Earle v. Brown, 6 Vet. App. 558, 562
(1994); Hayes v. Brown, 5 Vet. App. 60, 67 (1993); Fugere
v. Derwinski, 1 Vet. App. 103 (1990), aff’d, 972 F.2d 331
(Fed. Cir. 1992). That was plainly not the case here,
however, as the 1995 change in the Manual did not effect
a substantive change in the agency’s position as to the
scope of entitlement to subsection 1114(s) benefits. See
Fournier v. Shinseki, 23 Vet. App. 480, 487-88 (2010)
(Manual provision is not a substantive rule if it does not
“establish or alter the criteria for benefits”).
GUERRA v. DVA 12

mined by the ratings schedule must have at least one
disability that is rated at 100% in order to qualify for the
special monthly compensation provided by that statute.
Because no one of Mr. Guerra’s disabilities carries a
disability rating of 100%, he is not eligible for that statu-
tory benefit. We therefore affirm the decision of the
Veterans Court.

No costs.

AFFIRMED
 United States Court of Appeals
for the Federal Circuit
__________________________

LIONEL GUERRA,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________

2010-7080
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-223, Judge William A.
Moorman.
__________________________

GAJARSA, Circuit Judge, dissenting
The majority makes two errors in its analysis of 38
U.S.C. § 1114(s), and therefore, I must respectfully dis-
sent. First, it fails to read § 1114(s) in the context of the
entire statute, as opposed to selected, segmented, individ-
ual portions. Majority Op. at 6-7. Second, the majority
improperly perceives ambiguity in § 1114(s) and thus
resorts to 38 C.F.R. § 3.350(i)—the regulation related to
§ 1114(s)—to support its conclusion that a veteran must
have a single disability rated at 100 percent in order to
qualify for compensation under that section. Id. at 7-8.
In so doing, the majority also ignores the canon of statu-
GUERRA v. DVA 2

tory construction that requires ambiguities, if any, in
veterans’ statutes to be resolved in favor of the veteran.
See Brown v. Gardner, 513 U.S. 115, 117-18 (1994). In my
view, the plain language of the statute and the intent of
Congress establishes that a veteran must simply have a
total disability rating pursuant to § 1114(j) to qualify for
special monthly compensation under § 1114(s).
Section 1114(s) states, in relevant part, that “[i]f the
veteran has a service-connected disability rated as total,
and (1) has additional service-connected disability or
disabilities independently ratable at 60 percent or more,
or, (2) by reason of such veteran's service-connected
disability or disabilities, is permanently housebound, then
the monthly compensation shall be $2,993.” (Emphasis
added). In its limited analysis of the plain language, the
majority asserts that the singular indefinite article “a”
before “service connected disability” and the use of both
the singular “disability” and the plural “disabilities”
demonstrates that § 1114(s) requires that a single disabil-
ity be rated as total. Majority Op. at 6.
A review of § 1114 in its entirety, however, mandates
a different result. Compensation awarded under Section
1114 is either regular compensation, (a)-(j), or special
monthly compensation, (k)-(p) and (r)-(s). Sections
1114(a)-(j) provide the amount of monthly compensation
“if and while the disability is rated” at a certain percent-
age, which is provided in increments of ten. (Emphasis
added). Specifically, § 1114(j) provides the monthly
compensation rate “if and while the disability is rated as
total.” (Emphasis added). Although §§ 1114(a)-(j) refer to
“the disability” in the singular, a veteran’s multiple
service-connected disabilities can be combined to give the
veteran a singular rating for compensation under those
sections. See 38 C.F.R. § 4.25. A veteran who qualifies
3 GUERRA v. DVA

for compensation under § 1114(j) can obtain a total rating
based on the combination of multiple disabilities.
The key language in § 1114(s) that says “a service
connected disability rated as total” tracks almost identi-
cally to the language in 38 U.S.C. § 1114(j) that says “if
and while the disability is rated as total.” Because the
language in these provisions is nearly identical, it should
be construed to have the same meaning. See IBP, Inc. v.
Alvarez, 546 U.S. 21, 34 (2005) (noting “the normal rule of
statutory interpretation that identical words used in
different parts of the same statute are generally pre-
sumed to have the same meaning.” (citation omitted)).
Veterans entitled to monthly compensation under
§ 1114(j) can obtain a total rating by combining their
disabilities into a single rating pursuant to 38 C.F.R.
§ 4.25. Having a total rating is a prerequisite to obtaining
special monthly compensation under § 1114(s). See
Guillory v. Shinseki, 603 F.3d 981, 983 (Fed. Cir. 2010)
(explaining that “[e]xtraordinarily disabled veterans
already receiving a 100% disability rating under section
1114(j) (‘total disability’) may also be eligible to receive an
additional award for ‘special monthly compensation’ . . .,
over and above the monthly amount for total disability.”
(citation omitted)). The language of § 1114(s) does not
preclude a veteran from relying on a combined disability
rating total to form the basis of his claim for compensa-
tion under that section.
Furthermore, the legislative history of section 1114(s)
demonstrates that the very purpose of the section was to
provide additional benefits to those veterans who were
totally disabled under section 1114(j) but had additional,
severe disabilities. It states that “[t]he current total
disability rating [under subsection (j)] is $225 monthly”
and “[t]his new rate [in subsection (s)] is an intermediate
rate and applies to a veteran who is totally disabled . . . .”
GUERRA v. DVA 4

See Special Compensation Rate for Housebound Service-
Connected Disabled Veterans, H.R. Rep. No. 86-723 at 1
(1959); see also Special Compensation Rate for House-
bound Service-Connected Disabled Veterans, H.R. Rep.
No. 86-723 at 2 (1959) (noting that although “a wartime
totally disabled veteran is entitled to basic compensation
of $225 per month[, t]here is no intermediate rate . . . for
the veteran who is totally disabled . . . and whose activi-
ties are greatly restricted, but who is not permanently
bedridden . . . .”); see also 86 Cong. Rec. 11,931 (1960)
(statement of Rep. Rogers); id. at 15,434 (statement of
Sen. Johnson). Thus, the legislative history supports the
plain language of the statute: for a veteran to be entitled
to compensation under § 1114(s), the veteran must qualify
for total disability under § 1114(j). Section 1114(s) was an
“intermediate” benefit for those veterans who were more
seriously injured than those having only a total disability
but not requiring constant care. See H.R. Rep. No. 86-723
at 1.
The majority also claims that §§ 1114(k)-(p) support
its reading of the statute. Sections 1114(k)-(o) provide
special monthly compensation for veterans who, “as the
result of service-connected disability,” have suffered
certain other injuries. (Emphasis added). Section 1114(p)
provides that “in the event the veteran’s service-connected
disabilities exceed the requirements for any of the rates
provided in this section,” the Secretary may award addi-
tional compensation. (Emphasis added). The majority
relies on the lack of “a” before service-connected disability
in these sections to support its contention that the use of
the word “a” in § 1114(s) means that the veteran must
have a single disability rated as total to qualify for com-
pensation under that section. Majority Op. at 6.
5 GUERRA v. DVA

Contrary to the majority’s view, § 1114(k) does not re-
quire that a veteran suffer multiple disabilities to receive
compensation. Section 1114(k) states:
if the veteran, as the result of service-connected
disability, has suffered the anatomical loss or loss
of use of one or more creative organs, or one foot,
or one hand, or both buttocks, or blindness of one
eye, having only light perception, has suffered
complete organic aphonia with constant inability
to communicate by speech, or deafness of both
ears, having absence of air and bone conduction,
or, in the case of a woman veteran, has suffered
the anatomical loss of 25 percent or more of tissue
from a single breast or both breasts in combina-
tion (including loss by mastectomy or partial mas-
tectomy) or has received radiation treatment of
breast tissue, the rate of compensation therefor
shall be $96 per month for each such loss or loss of
use independent of any other compensation pro-
vided in subsections (a) through (j) or subsection
(s) of this section . . . .
38 U.S.C. § 1114(k) (emphases added). Section 1114(k)
clearly provides compensation in the event a veteran has
a single disability, such as the loss of one foot or one hand,
without the use of the article “a”. The lack of the article
“a” does not mean that any compensation awarded under
§ 1114(k) must be for multiple disabilities. Indeed, the
only limitation on the number of disabilities a veteran
must have to qualify for compensation appears in
§ 1114(p), which uses the plural “disabilities.” Clearly, to
obtain compensation under that section, a veteran must
have two or more “disabilities.” The other sections in
§ 1114 do not have such a limitation.
GUERRA v. DVA 6

The majority also claims that the distinction in
§ 1114(s) between “an additional service connected dis-
ability or disabilities” demonstrates that the use of the
singular disability in the beginning of § 1114(s) means
that one of the veteran’s disabilities must be rated as
total. The use of the singular and plural of disability does
not have the meaning that the majority ascribes to it.
The most natural reading of this language is that a vet-
eran may have one or more disabilities that are each
independently ratable at 70 percent to qualify for com-
pensation under § 1114(s). The inclusion of “disabilities”
demonstrates that a veteran having two disabilities, each
independently rated at 70 percent, is not excluded from
special monthly compensation under this section simply
because he has more than one severe injury.
Therefore, based on the plain language of the statute,
for a veteran to qualify for SMC under section 1114(s), the
veteran must have a total disability rating pursuant to
section 1114(j). Because, in my view, the language of
§ 1114(s) is clear, it is unnecessary to rely on the related
regulation. See Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of
Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unam-
biguously expressed intent of Congress.” (footnote omit-
ted)). To the extent that any ambiguity does exist in
§ 1114(s)—as the majority suggests—it should be resolved
in favor of the veteran. Gardner, 513 U.S. at 117-18
(explaining that “interpretive doubt is to be resolved in
the veteran’s favor”); see also King v. St. Vincent's Hosp.,
502 U.S. 215, 221 (1991) (“[P]rovisions for benefits to
members of the Armed Services are to be construed in the
beneficiaries' favor.” (citing Fishgold v. Sullivan Drydock
& Repair Corp., 328 U.S. 275, 285 (1946))).
7 GUERRA v. DVA

In this case, the Board determined that Mr. Guerra
“has a combined 100 percent disability evaluation,” and
he thus would qualify as having “a service-connected
disability rated as total” for purposes of section 1114(s).
The Board’s finding, however, did not specify whether Mr.
Guerra would be entitled to this rating if his 70 percent
rating for PTSD were counted separately. I would re-
mand this case to determine whether Mr. Guerra would
have a combined 100 percent disability rating excluding
the 70 percent rating for PTSD. Because the majority has
not so resolved this case, I dissent.