Gazelle: SMC(s)(1), When a Rating Should Not Be Combined

Frederick Gazelle v. McDonald, Opinion Number 14-2272, decided February 2, 2016 involves a case where the veteran sought SMC(s) for having an individual 100% rating and “additional service-connected disability or disabilities independently ratable at 60 percent or more.” 

The veteran had a 100% rating for PTSD and two ratings of 20% for his back and two 10% ratings for left lower and upper extremity radiculopathy.  The veteran sought a SMC rating, but the Board stated the additional back and radiculopathy ratings when combined using the combined ratings table only total 50%. 

The veteran argued that the statute in play 38 USC Section 1114(s)(1) does not mention the use of the combined rating table and the plain language meaning should be simply to add up his disabilities, which would result in a 60% rating and a grant of the SMC rating.

The Court rejected the veteran’s argument that the combined rating table should not be used and instead stated the Veteran’s Court and Federal Circuit have construed the phrase “additional disability or disabilities independently ratable at 60% or more” to mean that the disabilities should be combined. 

This was an attempt by the veteran and his attorney to expand the VA’s application of SMC(s) ratings and frankly a good argument.  The Court’s reliance on the Federal Circuit decision of Guerra v. Shinseki, 642 F.3d 1046, 1048 (Fed. Cir. 2011) does not appear on closer inspection to be directly applicable as the Court in Guerra was addressing “another independently rated disability or combination of disabilities rated at 60%”).  I would not be surprised if this case ends up before the Federal Circuit.

Opinion by Judge Schoelen, joined in by Judges Davis and Moorman.