United States Court of Appeals 

for the Federal Circuit ______________________ 

GARY PHILBROOK,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2020-2233

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 18-5628, Judge Coral Wong Pietsch, Judge Joseph L. Toth, Judge William S. Greenberg.

______________________ 

Decided: October 8, 2021

______________________ 

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant. 

 ASHLEY AKERS, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented 

by BRIAN M. BOYNTON, ERIC P. BRUSKIN, ROBERT EDWARD 

KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC. 

Case: 20-2233 Document: 41 Page: 1 Filed: 10/08/2021
2 PHILBROOK v. MCDONOUGH

 ______________________ 

Before DYK, O’MALLEY, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge. 

Gary Philbrook applied for a total disability rating 

based on individual unemployability. The Court of Appeals 

for Veterans Claims concluded that Mr. Philbrook was ineligible for such a rating because he was committed to the 

custody of a state hospital in connection with a criminal 

judgment. We agree with Mr. Philbrook that the Veterans 

Court erred in its determination that a federal statute 

barred the assignment of a total disability rating for 

Mr. Philbrook. We reverse the Veterans Court’s decision 

and remand for further proceedings.

I 

Mr. Philbrook served in the Army from 2000 to 2004. 

Philbrook v. Wilkie, 32 Vet. App. 342, 343 (2020) (Decision). 

Upon leaving service, he was awarded disability compensation for PTSD. Id. 

In April 2011, Mr. Philbrook stipulated to a judgment 

of “guilty except for insanity” in connection with a felony. 

Id. at 344. Under Oregon law, an individual is guilty except 

for insanity if, “as a result of mental disease or defect at the 

time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the 

conduct or to conform the conduct to the requirements of 

law.” Id. (citing Or. Rev. Stat. § 161.295(1) (2011)). The 

court ordered Mr. Philbrook to the custody of the Oregon 

State Hospital “under the jurisdiction of the Psychiatric Security Review Board . . . for care, custody and treatment for 

a maximum period not to exceed 20 years.” Id.

While in custody, Mr. Philbrook applied for total disability based on individual unemployability (TDIU). Id. A 

VA regional office concluded that Mr. Philbrook’s PTSD did 

not entitle him to TDIU because it did not preclude gainful 

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PHILBROOK v. MCDONOUGH 3

employment. J.A. 35. Mr. Philbrook appealed to the Board 

of Veterans’ Appeals, which did not consider the facts of his 

disability in detail, but denied TDIU “as a matter of law” 

under 38 U.S.C. § 5313(c) and the VA’s corresponding regulation 38 C.F.R. § 3.341(b). J.A. 67. Section 5313(c) precludes the assignment of a TDIU rating for any period 

“during which the veteran is incarcerated in a Federal, 

State, local, or other penal institution or correctional facility for conviction of a felony.” 

The Veterans Court affirmed the Board’s decision, reasoning that Mr. Philbrook’s stipulation to a judgment of 

guilty except for insanity, and his subsequent confinement 

at the Oregon State Hospital, qualified as being “incarcerated” in a “correctional facility” under the statutory language. Decision, 32 Vet. App. at 346–49. Mr. Philbrook now 

appeals the Veterans Court’s decision.

II

In 1980, Congress passed the Veterans’ Disability 

Compensation and Housing Benefits Amendments of 1980, 

including the relevant language of § 5313(c):

The Administrator shall not assign to any veteran 

a rating of total disability based on the individual 

unemployability of the veteran resulting from a 

service-connected disability during any period during which the veteran is incarcerated in a Federal, 

State, or local penal institution for conviction of a 

felony. 

Pub. L. No. 96-385, sec. 504(a), 94 Stat. 1528, 1534–35. 

A purpose of § 5313(c) expressed by members of Congress when the statute was promulgated was to address 

the perceived problem of providing government benefits to 

individuals who were already being provided for by taxpayer funding of penal institutions. See 126 Cong. Rec. 

26,118 (1980) (statement of Rep. G.V. Montgomery) (“I do 

not see the wisdom of providing hundreds and thousands 

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4 PHILBROOK v. MCDONOUGH

of dollars of tax-free benefits to such individuals when at 

the same time the taxpayers of this country are spending 

additional thousands of dollars to maintain these same individuals in penal institutions.”); 126 Cong. Rec. 26,122 

(1980) (statement of Rep. Chalmers Wylie) (“In the case of 

imprisonment, when a prisoner is being fully supported by 

tax dollars that fund the penal institution, it becomes ludicrous to continue payment of benefits designed to help him 

maintain a standard of living.”); see also Wanless 

v. Shinseki, 618 F.3d 1333, 1337 (Fed. Cir. 2010). 

Section 5313(c) initially applied to veterans “incarcerated in a Federal, State, or local penal institution.” As part 

of the Veterans Benefits, Health Care, and Information 

Technology Act of 2006, Congress amended the language of 

the statute to cover individuals “incarcerated in a Federal, 

State, local, or other penal institution or correctional 

facility.” 35 U.S.C. § 5313(c) (2006) (emphasis added) (as 

amended by Pub. L. No. 109-461, sec. 1002, 120 Stat. 3403, 

3464–65). 

The section of the 2006 public law that amended 

§ 5313(c) was entitled “Clarification of Correctional Facilities Covered by Certain Provisions of Law.” See 120 Stat. 

at 3464. The accompanying report from the Senate Committee on Veterans’ Affairs explained that this was a “technical amendment” to “clarify” the language. S. Rep. No.

109-297, at 41–42 (2006). The purpose of this clarification 

was to address a concurring opinion from the Veterans 

Court’s decision in Wanless v. Principi, 18 Vet. App. 337, 

338 (2004), which suggested that a felon incarcerated in a 

private prison might not be covered by the statute. S. Rep. 

No. 109-297, at 41–42. The committee explained that “[i]f 

VA or the courts were to conclude that private prisons do 

not constitute a ‘Federal, State, or local penal institution,’ 

as the [Veterans Court] has suggested, there would be the 

anomalous situation of the section 5313 limitation applying to a felon in a publicly operated facility and not to a 

felon incarcerated for the same crime in a privately 

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PHILBROOK v. MCDONOUGH 5

operated facility.” Id. Therefore, the 2006 amendment 

makes clear that “the section 5313 limitation applies to a 

felon incarcerated in any type of penal facility, including 

facilities operated by a private contractor.” Id.

III

We have jurisdiction to review questions of law in an 

appeal from a Veterans Court decision. 38 U.S.C. 

§ 7292(d)(1). We review statutory questions and regulatory 

interpretation de novo. See Prenzler v. Derwinski, 928 F.2d 

392, 393 (Fed. Cir. 1991). 

The question before us is whether the phrase “incarcerated in a Federal, State, local, or other penal institution or 

correctional facility for conviction of a felony” in § 5313(c) 

covers Mr. Philbrook’s confinement at the Oregon State 

Hospital. We find that the plain language of § 5313(c) does 

not cover Mr. Philbrook. 

Mr. Philbrook was not confined in a “penal institution 

or correctional facility”; he was committed to a mental institution.1 A mental institution is “a hospital for people 

with mental or emotional problems.” Mental Institution, 

Merriam-Webster, www.merriam-webster.com/dictionary/mentalinstitution (last visited Sept. 9, 2021). Unlike

“jail” or “prison,” there is no necessary criminal element 

leading to treatment in a mental institution. Many psychiatric facilities (including the Oregon State Hospital) include both civil and criminal commitment categories. About 

1 Mr. Philbrook cites current definitions of the relevant terms rather than definitions from the time of the 

statute’s adoption in 1980 or amendment in 2006. Because 

the Secretary does not challenge the use of current definitions (and indeed argues that such definitions support his 

reading of the statute) we accept the current definitions as 

representative of the meaning of the terms at the time the 

statute was written.

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6 PHILBROOK v. MCDONOUGH

Us, Or. State Hosp., www.oregon.gov/oha/osh/pages/about.aspx (last visited Sept. 9, 

2021). 

The Oregon State Hospital is not a “correctional facility” for the purpose of § 5313(c). Both parties provide definitions of the term “correctional facility.” See Correctional 

Institutions, Black’s Law Dictionary 311 (5th ed. 1979) (“[a] 

generic term describing prisons, jails, reformatories and 

other places of correction and detention”); Correctional Facility, Merriam-Webster, www.merriam-webster.com/dictionary/correctionalfacility (last visited Sept. 9, 2021) (“a 

place where people are kept when they have been arrested 

and are being punished for a crime: i.e., prison”). We find 

neither definition conclusive as to whether a mental hospital is a correctional facility, but we reject the Secretary’s

argument that any “place of correction,” that provides

“care, custody, and treatment,” is a correctional facility. 

Appellee’s Br. 9–10. Both cited definitions suggest a connection between a correctional facility and a criminal act. 

Under the Secretary’s reading, a mental hospital (or indeed 

a hospital in general) is a correctional facility even as applied to patients unrelated to the criminal justice system. 

The term “correctional facility” cannot encompass a hospital that treats civil patients, and a hospital cannot be a correctional facility for some patients and not others. 

The legislative history of the 2006 amendment suggests that a mental hospital is not a correctional facility for 

the purpose of § 5313(c). The original statutory language 

did not include the term “correctional facility,” only “Federal, State, or local penal institution.” Pub. L. No. 96-385, 

sec. 504(a), 94 Stat. 1528, 1534–35. When the term “correctional facility” was added to the statute in 2006, Congress 

explained that this was a “technical” and “clarifying” 

amendment not meant to change the original meaning. 

S. Rep. No. 109-297, at 41–42. The purpose of the amendment was to address the notion that an individual incarcerated in a private prison might not be covered by the 

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PHILBROOK v. MCDONOUGH 7

statute. Id. Nowhere does the legislative history suggest

that adding the term “correctional facility” was meant to 

broaden the statute beyond what could be considered a 

“Federal, State, or local penal institution” under the original statutory language.

The Veterans Court found that the original legislative 

history from 1980 supported its reading of the term “correctional facility” because it suggested that the purpose of 

the statute was to avoid paying duplicative benefits to individuals already provided for at the taxpayer’s expense.

Decision, 32 Vet. App. at 347. At most, these statements of 

purpose suggest that Congress did not intend for prisoners 

to receive disability benefits while “incarcerated in a Federal, State, or local penal institution.” We find the Congressional statements minimally probative as to whether a 

mental institution is a correctional facility, particularly 

where, as here, the disputed term “correctional facility” 

was not a part of the original statute. We decline to read 

the Congressional statements as dispositive to the meaning of a term added to the statute twenty-six years later.

Finally, we note that in an analogous statute, Congress 

unambiguously included language that separately covered 

individuals in correctional facilities, like those described in 

38 U.S.C. § 5313(c), and individuals ordered to mental institutions. In the Social Security context, Congress limited

benefits for individuals “confined in a jail, prison, or other 

penal institution or correctional facility pursuant to his 

conviction of a criminal offense,” and also for individuals 

“confined by court order in an institution at public expense 

in connection with . . . a verdict or finding that the individual is guilty but insane, with respect to a criminal offense.” 

42 U.S.C. § 402(x)(1)(A)(i), (x)(1)(A)(ii)(I). Thus, Congress 

used almost identical language to that at issue here, including the term “correctional facility,” and then separately 

identified institutions that house individuals who have 

been found guilty, but insane, with respect to a criminal 

offense. Congress could have used similar language in 

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8 PHILBROOK v. MCDONOUGH

§ 5313(c) if it intended the statute to bar payments to individuals found guilty except for insanity and placed in the 

custody of a mental institution.

IV

Because the Oregon State Hospital is not a “penal institution or correctional facility” under § 5313(c), we reverse the Veterans Court’s decision that Mr. Philbrook was 

barred from receiving a TDIU rating as a matter of law. We 

remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

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