Guillory v. SHINSEKI

United States Court of Appeals for the Federal Circuit
2009-7117

JOHN L. GUILLORY,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Mark A. Delphin, Delphin Law Offices, of Lake Charles, Louisiana, for claimant-
appellant.

Scott D. Austin, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel was
Meredyth Cohen Havasy, Trial Attorney. Of counsel on the brief was Michael J.
Timinski, Deputy Assistant General Counsel, Office of the General Counsel, United
States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Lawrence B. Hagel
United States Court of Appeals for the Federal Circuit

2009-7117

JOHN L. GUILLORY,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in
06-2926, Judge Lawrence B. Hagel.

___________________________

DECIDED: April 27, 2010
___________________________

Before MAYER, LINN, and DYK, 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”) affirming the Board of Veterans’

Appeals (“the Board”). The Board found no clear and unmistakeable error (“CUE”) in a

March 30, 1992, regional office (“RO”) decision that assigned an effective date of May

1991 for an award of special compensation resulting from the diagnosis of a service-

connected seizure disorder. The Veterans Court affirmed in Guillory v. Peake, No. 06-

2926, 2008 WL 5155291 (Vet. App. Dec. 9, 2008). The Veterans Court also dismissed

Guillory’s claims for increased compensation for the “loss of [use of] trunk through the

knee, to include the buttocks,” for lack of jurisdiction. Id. at *4. We dismiss the appeal
insofar as it contests the court’s determination as to the seizure disorder, but we

remand for further consideration as to the claim arising from the loss of the use of both

buttocks and the right and left trunks through the knee.

BACKGROUND

I

In order to understand the nature of the veteran’s claim, some background on the

Department of Veterans Affairs (“VA”) disability compensation scheme is required.

Generally, veterans receive compensation for service-connected disabilities based on

the degree of severity of the injury. Veterans are rated from 0%-100% disabled, with

monthly payments starting with 10% disability and increasing for each 10% increase in

disability rating. See 38 U.S.C. § 1114(a)-(j). Extraordinarily 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” (“SMC”), over

and above the monthly amount for total disability. Id. § 1114(k)-(s). A veteran is eligible

for SMC if he meets precisely defined statutory criteria. Id. For example, in order to

qualify for SMC under subsection (l), a veteran must have “suffered the anatomical loss

or loss of use of both feet, or of one hand and one foot.” Id. § 1114(l). Subsections (l),

(m), (n), and (o) represent disabilities of increasing severity, for which the veteran is

entitled to increasing levels of SMC. See id. § 1114(l)-(o).

Additionally, under subsection (k), a veteran can also receive an additional

monthly payment for certain disabilities, separate from the disabilities described in

subsections (l) through (o). 38 U.S.C. § 1114(k). Subsection (p) of section 1114 allows

for a half-step increase to the next higher SMC rate when a veteran exceeds the

2009-7117 2
requirements set forth in the previous rate, but does not qualify for the next highest rate.

Id. § 1114(p). Current law allows an individual to qualify for intermediate SMC under

subsection (p) even when such disability had also been the basis for entitlement to

compensation under subsection (k). See 38 C.F.R. § 3.350(f)(1)-(4). For example, an

additional independent disability (not already entitling the veteran to SMC payments

under (l)-(o)) meriting a 50% disability rating (regardless of whether already

compensated under subsection (k)) results in a half step SMC rate increase, while an

additional independent 100% disability rating results in a full step SMC rate increase.

Id. § 3.350(f)(3)-(4).

The law also provides for additional SMC above and beyond that authorized by

38 U.S.C. § 1114(k)-(p) under subsection (r)(1), where the veteran “is in need of regular

aid and attendance.” Until 1979, the entitlement to “aid and attendance” SMC required

a SMC rating of “(o).” See Veterans’ Disability Compensation and Survivors’ Benefits

Amendments of 1979, Pub. L. No. 96-128, § 104, 93 Stat. 982, 984. Current law

provides that a veteran is eligible for aid and attendance if he is entitled to receive at

least the rate under subsection (o) or the intermediate rate between subsections (n) and

(o) authorized under subsection (k). See 38 U.S.C. § 1114(r).

II

With this background in mind, we turn to the facts of this case. Guillory served in

active duty in the U.S. Army from June 1964 to October 1966, including service in

Vietnam. While serving in Vietnam, he received multiple injuries from a gunshot wound,

and was subsequently discharged. In June of 1967, a VA RO awarded Guillory a

combined 100% disability rating for “chronic brain syndrome associated with trauma,

2009-7117 3
with triplegia.” J.A. 19. Based on the RO’s rating decision, Guillory received

compensation at the total disability rate pursuant to 38 U.S.C. 1114(j). The RO also

granted SMC under 38 U.S.C. § 1114(p), at the rate between subsection (l) and (m) on

account of the loss of use of the lower extremities, effective from the date of discharge.

The RO also granted a separate SMC rating under subsection (k) for the loss of use of

a hand. Guillory did not appeal the RO decision, and it became final.

During the period between 1967-1992, Guillory’s SMC disability rating was

progressively increased as a result of a number of rating errors and intervening changes

in the law. Additionally, in 1992, the RO granted service connection for a seizure

disorder, based on a 1991 examination report diagnosing a seizure disorder, and

awarded a 100% disability rating for the seizure disorder. Because this additional

independent disability qualified Guillory for another full-step increase in his rating under

subsection (p) from (n) to (o) pursuant to 38 C.F.R. § 3.350(f)(4), he was then eligible

for and was awarded aid and attendance under subsection (r), effective May 1991 (the

date of the seizure diagnosis).

In 1997 Guillory requested a review of his file to determine whether he had been

paid the correct amount of compensation, stating his belief that he “should have been

paid at the higher rate under (p) plus [aid and attendance]” at the time of the original

rating in 1967. 1 See J.A. 48. In an April 2001 statement, Guillory alleged the following

errors in the VA’s rating decisions: 1) error in the RO’s failure to rate and compensate

1
There was a delay in response to Guillory’s request for a file review
because his claims file had been lost. The VA reconstructed his claims file from agency
documents as well as documents provided by Guillory. When a veteran’s claims file
has been lost, the VA has a heightened duty to explain its findings and conclusions.
See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997).

2009-7117 4
him for the loss of use of both hips, thighs, and buttocks, and 2) error in the RO’s

assignment of a 70% rating for loss of use of the right hand. In September of 2001,

Guillory submitted a Statement in Support of Claim (VA Form 21-4138) asserting CUE

in the VA’s failure to award aid and attendance under 38 U.S.C. § 1114(r) effective the

date of his original rating in 1966. In an October 2001 rating decision, the RO

concluded that only when the evaluation for seizure disorder was assigned a 100%

rating in 1991 did the veteran become entitled to aid and attendance under subsection

(r)(1). Guillory sent a written notice of disagreement with the rating decision, and was

issued a “Statement of the Case,” which summarized Guillory’s claims as follows:

The veteran contends . . . that he was paid the incorrect rate from the
onset following service. . . . He further states that the VA failed to rate him
for loss of both bottom limbs and his whole right side. He states they only
rated him for his knees down and not above. He feels that he should have
been rated N1/2 plus k in 1966. He states that they corrected him to M1/2
in 1977. However, when he was given M1/2 plus k they did not consider
that the hips were involved as well as the buttocks.

J.A. 90 (emphases added).

In 2003, Guillory appealed to the Board, which concluded that the RO’s various

ratings decisions were not the product of CUE (“the 2003 Board decision”). The Board

noted that Guillory had been properly rated at the various points throughout the rating

history, finding that he failed to provide any evidence of record showing that his service-

connected disabilities entitled him to a higher rating than he was assigned. Additionally,

the Board concluded that “there is no specific probative evidence demonstrating that the

veteran had a seizure disorder prior to May 1991,” and thus a higher rate of

compensation based on the seizure disorder was not assignable prior to May of 1991.

J.A. 112.

2009-7117 5
 On appeal, the Veterans Court remanded due to the Board’s failure to discuss or

acknowledge a VA medical treatment record dated August 1975 that appeared to reflect

a diagnosis of seizure disorder. Guillory v. Principi, No. 03-678, 2005 WL 103060, at *4

(Vet. App. Jan. 4, 2005) (“the 2005 Veterans Court decision”). On appeal, Guillory

appeared to have also raised a challenge to the RO’s rating decision independent of the

seizure disorder. For example, Guillory’s informal brief in that case stated the following:

BVA did not grant loss of use of right arm, elbow, scapula, and shoulder,
refer R-46 thru R-67. R-67 shows award only for loss of use of right hand.
BVA should have awarded for loss of use of right scapula, shoulder,
elbow, wrist, fingers, and thumb. . . . BVA did not award me for loss of use
of trunk, hips. Refer R-46 thru R-67 to prove BVA did not award for Loss
of use from both Right and left Trunk thru Knee, which includes buttocks.
Refer R-73 proves these losses present as of 27 June 66. BVA should
have awarded according to Title 38 rating schedule for compensation and
pension the following: If a veteran is already rated at 100% he should be
awarded an intermediate rate or the next higher rate for loss of use of both
buttocks or a K award for loss of use of each part of his anatomy. A
veteran may receive up to 3K awards and I am receiving only 1 K award.

Petr.’s Informal Br. at 4-5, Guillory, 2005 WL 103060 (No. 03-678). With respect to

Guillory’s “remaining arguments,” the court stated that “those arguments need not be

addressed at this time.” Guillory, 2005 WL 103060, at *5. The court indicated that “[o]n

remand, Mr. Guillory is free to submit additional evidence and argument, including those

arguments raised in his brief.” Id.

In its remand decision, the Board again concluded that prior to May 1991, there

was “no evidence of record showing that the veteran’s service-connected disabilities

exceeded the requirements of subsection (n),” thus warranting “an intermediate rate

under subsection (p).” J.A. 22. The Board also concluded there was no evidence that

Guillory’s seizure disorder was severe enough to warrant a 100% disability rating prior

2009-7117 6
to 1991, because the 1975 record only showed a diagnosis of seizure disorder, without

any findings of episodes of seizure.

On appeal, the Veterans Court affirmed this ruling, holding that “the Board’s

finding that the March 1992 regional office decision did not contain clear and

unmistakable error is not ‘arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law .’” Guillory, 2008 WL 5155291, at *6. The Veterans Court also

concluded that “[t]he April 2003 Board decision that was vacated and remanded by this

Court did not contain any issue regarding the loss of trunk through the knee, to include

the buttocks. . . . [Thus] the Board did not err in not addressing those

issues. . . . [B]ecause those issues are not the subject of the Board decision currently

on appeal, the Court does not have jurisdiction to address them.” Id. at *4.

Guillory timely appealed the Veterans Court’s judgment, and jurisdiction is

asserted under 38 U.S.C. § 7292(d).

DISCUSSION

This court’s jurisdiction to review decisions of the Veterans Court is limited by

statute. See 38 U.S.C. § 7292. We have jurisdiction over “all relevant questions of

law, including interpreting constitutional and statutory provisions.” 38

U.S.C. § 7292(d)(1). We lack jurisdiction to review any challenge to a factual

determination or the application of a law or a regulation to the facts of a particular case.

Id. § 7292(d)(2). A determination of the jurisdiction of the Court of Appeals for Veterans

Claims is a question of law that we review de novo. See Hudson v. Principi, 260 F.3d

1357, 1362 (Fed. Cir. 2001).

2009-7117 7
 The briefs for both Guillory and the government are somewhat opaque. On

appeal, Guillory appears to challenge two aspects of the Veterans Court’s decision.

First, he contends that the court erred in refusing to find CUE in the 1992 RO decision

that declined to award aid and attendance retroactively to 1966, apparently based on

the allegedly pre-existing seizure disorder and CUE in earlier ratings decisions that

failed to award compensation for the seizure disorder. In order to qualify for aid and

attendance, a veteran must have an SMC rating under subsection (o), or the rate

between subsections (n) and (o) authorized under subsection (k). See

38 U.S.C. § 1114(r). According to the Board and the Veterans Court, until Guillory

received the 100% rating for the seizure disorder in 1991, his rating of (n)+(k) made him

ineligible to qualify for aid and attendance, and therefore there was no CUE in earlier

ratings decisions not awarding a service connection for the seizure disorder. Guillory

does not make the argument that the Veterans Court misinterpreted subsection (r) or

raise any other issue of statutory interpretation. Instead, he disagrees with the findings

of fact and application of law to fact by the Board and the Veterans Court that he did not

meet the criteria for additional aid and attendance SMC. He contends that certain

records indicating that he was taking prescription medications to treat seizures

demonstrate that his seizure disorder dated back to 1966. He also relies on recorded

observations by medical doctors dating back to 1967 suggesting the need for aid and

attendance. However, the onset and severity of the seizure disorder are questions of

fact beyond our jurisdiction to review. Thus, we dismiss the appeal insofar as it

challenges the ruling on the seizure disorder.

2009-7117 8
 Second, Guillory challenges the jurisdictional determination of the Veterans

Court. The government argues that whether Guillory should have been rated for loss of

use of right and left trunk through knee including buttocks was not a new argument

related to his CUE claim upon appeal, but was a separate claim of CUE that must be

brought in a separate CUE proceeding. Appellee’s Br. 38-40 (citing Andre v. Principi,

301 F.3d 1354, 1357-58 (Fed. Cir. 2002)). The Veterans Court determined that it

lacked jurisdiction over the issue, stating that “[t]he April 2003 Board decision that was

vacated and remanded by this Court did not contain any issue regarding the loss of

trunk through the knee, to include the buttocks. . . . [Thus] the Board did not err in not

addressing those issues.” Guillory v. Peake, 2008 WL 5155291, at *4.

This jurisdictional determination is erroneous. As the background discussion and

procedural history of the case indicate, Guillory has always made two separate

arguments for entitlement to aid and assistance SMC: 1) the contention as to the earlier

onset of his seizure disorder, entitling him to a 100% disability rating that would increase

his SMC rating by a full step; and 2) the contention that he was mistakenly rated

independent of the seizure disorder, due to the loss of use of his right and left trunk

through knee and buttocks, thus entitling him to a higher rating retroactive to 1966.

Thus, this is not a case where the veteran raised for the first time on appeal a new claim

of CUE, separate and distinct from the claims that the Board addressed below.

2009-7117 9
 Moreover, contrary to the Veterans Court decision, the 2003 Board decision did

address this issue. 2 Although the 2005 Veterans Court decision did not specifically

address the argument, it remanded the question for further consideration by the Board

and granted Guillory an opportunity “to argue those claimed errors before the Board at

the readjudication” and “submit additional evidence and argument, including those

arguments raised in his brief.” Guillory, 2005 WL 103060, at *5. Accordingly, a remand

is necessary for the court to address this claim on the merits. We express no opinion

whether this CUE claim has merit or, if it does, what consequences the error may have

had, if any, given the then-existing requirements for establishing a right to aid and

attendance SMC. 3

Finally, Guillory further asserts that he has been deprived of his constitutional

right to procedural due process, because his claims have not been properly addressed.

We have held that veterans’ benefits are a protected property interest under the Fifth

Amendment, because they are statutorily mandated and nondiscretionary in nature.

Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). In Cushman, we held that

2
The 2003 decision discussed Guillory’s contentions that “he was not rated
and not compensated for the loss of use of both hips, thighs, and buttocks,” J.A. 101,
which was also part of the Statement of the Case. The Board then concluded that at
the various points throughout Guillory’s rating history, he had been properly rated, as he
failed to provide any evidence showing that his service-connected disabilities exceeded
the requirements of the subsection he was assigned. Thus, it appears that the Board in
2003 dismissed this argument because there was insufficient evidence as to these
alleged disabilities.
3
Guillory also argues that the VA committed CUE in failing to award the
“triplegia rate retroactive to 1966.” Appellant’s Br. 6. It is unclear if this claim is distinct
from his assertions regarding the loss of use of his trunk and buttocks. However, as this
argument also goes to the contention that he was improperly rated independent of the
seizure disorder, it is appropriate for consideration on remand.

2009-7117 10
there was a violation of due process where there was no adequate remedy under

existing statues and regulations to address the VA’s reliance on an improperly altered

medical record. Id. at 1298-99. However, here there is no due process issue since,

unlike the situation in Cushman, the statutes and regulations provide an adequate

remedy for any error that occurred in prior proceedings.

Thus, we dismiss-in-part, reverse-in-part, and remand for further consideration.

DISMISSED-IN-PART, REVERSED-IN-PART, and REMANDED

COSTS

No costs.

2009-7117 11