THIS VERSION OF THE OPINION INC LUDES T HE APR IL 21, 2011, ERRATA

UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 08-2705

J A M E S E. B U I E , A P P E L L A N T ,

V

. E R I C K. S H I N S E K I , S E C R E T A R Y O F V E T E R A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans’ Appe als (De cided Ma

rch 23, 2011)

Kenneth M. Carpenter , of Topeka , Kansa s, was on the br ief for the appe llant.

W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; Brian B. Rippel , Deputy Assistant Gene ral Couns el ; an d Nhu P. Nguyen , Appellate Attorney ; all of Washington, D.C., wer e on the br ief for the appe llee.

Be fore HAGEL , L ANCE, and SCHOEL EN, Judges

. PER CURI AM: J ames E. Buie appea ls throug h counsel a May 5, 2008, Boa rd of Veter ans' Appea ls (B oard) decision that (1) g rante d an eff ective date of April 16, 1998, for the awa rd of a total disability rating based on individual unemploy ability ; and (2) g rante d an eff ective date of April 16, 1998, for the awa

rd of a 60% disability rating for a low back disability

. The Court has jurisdiction 1 pursuant to 38 U.S.C. §§ 7252(a) a nd 7266(a) to reviewthe B oard de cision. The novel legal issue raised by this case is whether a claimant may be awa rded specia l monthly compensa tion under 38 U.S.C. § 1114(s) when the claimant has a total disability rating

T h e B o a r d a l s o d e n i e d e n t i t l e m e n t t o a d i s a b i l i t y r a t i n g i n e x c e s s o f 7 0 % f o r p o s t

- t r a u m a t i c s t r e s s d i s o r d e r 1 f r o m J a n u a r y 2 6 , 2 0 0 1 , a n d t o a n i n i t i a l d i s a b i l i t y r a t i n g i n e x c e s s o f 3 0 % f o r t h a t c o n d i t i o n p r i o r t o J a n u a r y 2 6 , 2 0 0 1

. I n h i s b r i e f

, h o w e v e r , M r

. B u i e m a k e s n o a r g u m e n t s w i t h r e s p e c t t o h i s c l a i m f o r b e n e f i t s f o r p o s t

- t r a u m a t i c s t r e s s d i s o r d e r , a n d t h e C o u r t t h e r e f o r e d e e m s a n y a p p e a l w i t h r e s p e c t t o t h a t c l a i m a b a n d o n e d

. S e e G r i v o i s v

. B r o w n , 6 V e t

. A p p

. 1 3 6 , 1 3 8 ( 1 9 9 4 ) ( h o l d i n g t h a t i s s u e s o r c l a i m s n o t a r g u e d o n a p p e a l a r e c o n s i d e r e d a b a n d o n e d )

.based on individual unemploy ability that is based on more than one underly ing disability

. The Court holds that a total disability rating based on individual unemploy ability that is based on more than one underly ing disabilit y does not satisfy the first re q u i reme nt of section 1114(s) that a claimant have "a service -conne cted disability rate d as total." The Court also holds, howeve r, t h at when such a situation arises, VA' s duty t o maxi miz e a claimant' s benef its require s VA to assess all of the claimant' s service -conne cted disabiliti es without reg ard to the order in which service connec tion was

awa rded to deter

mine whether any combination of the disabiliti es establishes elig ibilit y for specia l monthly compensa tion under sec tion 1114(s). Be cause the Bo a

r d f a il e d to c o n s id er whether the combination of Mr. Buie ' s disabiliti es might entitle him to specia l monthly compensa t i on, and beca use the Boa

rd failed to consider the application of 38 C.F.R. § 3.156(b) in reg ard to the eff ective date for Mr. Buie ' s low back disability , the Court will vacate the May 2008 Boa rd decision and rema n d t h e m at ters for rea djudication consistent with this decision.

I. F ACTS Mr. Buie serve d on active duty in the U.S. Army from Dec ember 1965 to J une 1967. He was

awa rded VA disability benef

its for a low back condition and assig ned a 10% disability rating in J une 1971. I n November 1995, Mr. Buie soug ht an incre ased disability rating for his low back condition and advised VA that he had been "a pproved for 100% disability by [t h e S o ci al S ecurity Administration] for this disability ," and that he h ad n o t worke d since 1974 beca use his back condition was "totally disabling." Record (R.) at 2492. I n Fe bruar y 1996, VA sent Mr. Buie a letter advising him that he might be entitled to a total disability rating if he was unable to "se cure and follow a substantially g ainful occupation" beca use of his service -conne cted disabiliti es. R. at 2490. The letter continued: "I f y ou believe that y ou qualify , please complete and return the enclose d VA For m 21-8940, Veter an' s Application for I ncre ased Compensation Ba sed on Unemploy ability ." Id. Neither party disputes that Mr. Buie did not return the e nclosed for m. I n May 1996, a VA reg ional office consi d er ed medical repor ts from the Social Security Administration "thr oug h" Fe bruar y 1983, and outpatient trea tment rec ords from the Fa y etteville,

2North Carolina, VA medical cente r dated Marc h to November 1995. The reg ional office deter mined that the medical evidenc e did not support a 20% disability rating and denied Mr. Buie ' s claim. The
reg ional office did not expressly consider or discuss entitlement to a total disability rating based on in d i v i d u al unemploy ability , but noted that the Social Security Administration rec ords "pr imarily show disability due to neuropsy chiatric impairment, with lumbar injuries noted in service , and ag ain
at work [on September 7, 1971,] and [J anuar y 7, 1973,] by history only

. Older rec ords refer t o Worker' s Compensation settlement with ongoing benef its for the 1971 injury ." R. a t 2303. I n Fe bruar

y 1997, Mr. B uie submitted a statement in support of c laim: I would like to reope n my claim to have my 10% [ s er v i ce -c onnecte d] back injury incre ased to a highe r rating

. I rec eive all my medi cal car e at [t he] VA [m edica l cente r in] Fa

y etteville. My back is worse beca us e I h ave more pain and difficulty bending and standing for long periods of time.

R

. at 2299. I n J uly 1997, the reg ional office considere d outpatient trea tment rec o rd s d at ed November 1995 to J une 1996 from the Fa y etteville VA medical cente r, as well as an April 1997 VA orthopedic examination repor t. The reg ional office found that the outpatient trea tment rec ords wer e "c ompletely neg ative for complaints, sy mptoms, diag nosis[ ,] and trea tment" of Mr. Buie ' s service

connec ted low back disability

. R. at 2265. Ba sed on the April 1997 VA examination, howeve r, the
reg ional office incre ased Mr. Buie ' s low back disability rating to 20%, eff ective Fe bruar

y 17, 1997, though no e x planation was g iven for the assig nment of the e ffe ctive date

. 2
I n Aug ust 1997, Mr. Buie a g ain submitted a statement in support of c laim: I am reque st i n g an upg rade for my condition–back strain[–] and please note the enclose d medical paperw ork. I now have a 20% [service -conne cted] rating for the back strain but the condition has worsene d. Also, I h av e b een on medication for
sever al y ear s for the condition. The medical paper work is from [t he Durha m, North Carolina, VA me dical ce nter].

M r

. B u i e 's F e b r u a r y 1 9 9 7 s t a t e m e n t i s h a n d d a t e d F e b r u a r y 3 , 1 9 9 7 , a n d a p p e a r s t o h a v e b e e n r e c e i v e d b y V A 2

o n F e b r u a r y 1 0 , 1 9 9 7

. S e e R

. a t 2 2 9 9

. T h e J u l y 1 9 9 7 r e g i o n a l o f f i c e d e c i s i o n s t a t e s t h a t M r

. B u i e 's " c l a i m f o r i n c r e a s e "
w a s r e c e i v e d o n F e b r u a r y 5 , 1 9 9 7

. R

. a t 2 2 6 7

. T h e r e g i o n a l o f f i c e a l s o n o t e d t h a t t h e A p r i l 1 9 9 7 e x a m i n a t i o n w a s t h e f i r s t e v i d e n c e t h a t a n i n c r e a s e d d i s a b i l i t y r a t i n g w a s w a r r a n t e d

. B e c a u s e V A t r e a t e d M r

. B u i e 's F e b r u a r y 1 9 9 7 s t a t e m e n t
a s a n e w c l a i m f

o r a n i n c r e a s e d r a t i n g , i t a p p e a r s t h a t t h e e f f e c t i v e d a t e a s s i g n e d i n J u l y 1 9 9 7 w a s n o t i n a c c o r d w i t h 3 8 U

. S

. C

. § 5 1 1 0 ( b ) ( 2 ) , w h i c h p r o v i d e s t h a t " [ t ] h e e f f e c t i v e d a t e o f a n a w a r d o f i n c r e a s e d c o m p e n s a t i o n s h a l l b e t h e e a r l i e s t d a t e a s o f w h i c h i t i s a s c e r t a i n a b l e t h a t a n i n c r e a s e i n d i s a b i l i t y h a d o c c u r r e d , i f a p p l i c a t i o n i s r e c e i v e d w i t h i n o n e y e a r f

r o m s u c h d a t e

. "
3R. at 2260. I n Marc h 1998, the reg ional office considere d VA outpatient trea tment rec ords from an

unspecifie d VA medical cente r dat ed Aug ust 1994 and September 1995 (the later of which the
reg ional office deter

mined was a d u p l i ca t e o f a rec ord alre ady considere d by VA) and a hospital
repor t from the Durha m VA medical cente r dated April to May 1997, as well as other evidenc e. The
reg ional office noted that the Aug ust 1994 rec ord showed that Mr. Buie had been seen for "r ecur rent low back pain." R. at 2239. Ba sed on an April 1997 VA examination (p re s u m ab l y t he same examination on which the reg ional office relied in its J uly 1997 decision), t h e re gi o n al office incre ased Mr. Buie ' s disability rating for his low back condition to 40%, eff ective Fe bruar

y 5, 1997, the date the "[p]rior claim" w as re ceive d. R. at 2239-40. I n April 1998, Mr. Buie wrote to VA reque sting a 60% disability rating for his low back

co n dition. He stated that the pain had incre ased, had moved closer to his spine, and was n o w s o

sever e that h e might have to be hospitaliz ed. He advised that he had been trea ted by a private phy sician and h ad been presc ribed medication for his condition. I n May 1998, Mr. Buie ag ain
reque sted ree valuation of his back condition. I n October 1999, the reg ional offi ce co n s i dere d 3 evidenc e dated as ear ly as J uly 1998 and continued Mr. Buie ' s 40% disability rating , finding that his

curr ent condition did not war rant a highe r disability rating

. Mr. Buie filed a Notice of Disag ree ment with that decision in November 1999. Also in November 1999, Mr. Buie submitt ed VA For m 21-8940, Veter an' s Application for I ncre ased Compens at i on Ba sed on Unemploy ability , and asserted that his service -conne cted back and knee disabiliti es re ndere d him unemploy able. I n J anuar y 2000, th e re g ional office issued a Statement of the Case continuing the 40% disability rating assig ned for Mr. Buie ' s low back disorder. I n November 2000, the reg ional office denied e ntitlement to a total disa bility rating based on individual une mploy ability , finding that the medical evidenc e did not demonstrate that Mr. Bu i e wa s unable to secur e or follow substantially
g ainful employ

ment. Mr. Buie , throug h his curr ent counsel, filed a Notice of Disag ree ment with that decision in Dec ember

2000.

A t t h i s t i m e , M r

. B u i e a l s o s o u g h t t o r e o p e n p r e v i o u s l y d e n i e d c l a i m s f o r b i l a t e r a l k n e e d i s a b i l i t i e s

. T h o s e 3

c l a i m s w e r e g r a n t e d a n d M r

. B u i e w a s u l t i m a t e l y a s s i g n e d a 1 0 % d i s a b i l i t y r a t i n g f o r e a c h k n e e

. 4I n J uly 2001, the reg ional office considere d evidenc e dated as ear ly as J une 1998 and issued

a rating decision g ranting Mr. Buie an incre ased disability rating of 60% for his low back disability , eff ective May 29, 1998, the date of Mr. Buie ' s corres p o ndence reque sting "r eeva luation" of his condition. The reg ional office also g rante d entitlement to a total disability rating based on individual

u n em p l oy ability , finding that Mr. Buie was unable to secur e or follow substantially g ainful employ ment as a result of his service -conne cted knee and back disabi l i t i es

. The reg ional office assig ned an effective date of May 29, 1998, finding that was the date that Mr. Buie ' s service

connec ted disabilities first met the schedular require ments for such a

rating

. I n November 2001, Mr. Buie filed a Notice of Disag ree ment with the eff ective date assig ned for e ntitlement to a total disability rating based on indivi dual unemploy ability . The e ffe ctive date

was confirme d by a Marc h 2002 Statement of the Case. I n April 2002, Mr. Buie ag ain disagre ed with the effec t i v e date assig ned for the awa rd of a total disability rating based on individual unemploy ability and also filed a Notice of Disag ree ment wit h the eff ective date assig ned for the incre ased disability

rating for his low bac k condition. I n the meantime, in May 2004, the Boa rd g rante d Mr. Buie entitlement to benef its for posttraumatic stress disorder. Ultimately , Mr. Buie was g rante d a 30% disability rating for that condition, effe ctive Aug ust 28, 1997, and a 70% disa bility ratingfrom January

26, 2001. I n May 2008, afte r several y ear s of additional development, including two Boa rd remands and a rema

nd from this Court, the Boa rd issued the decision on appea l, g ranting an eff ective date of April 16, 1998, but no ear lier, for the awa rd of a t o t al d isability rating based on individual unemploy ability

and for the awa rd of a 60% disability ratingfor a low back disa

bility . The B oard first d et er m i ned that, althoug h Mr. Buie ' s April 1998 letter did not constitute a Notice of Disag ree ment with the Marc h 1998 reg ional office decision, it did raise a valid claim of entitlement
to a 60% disability rating

. Acc ording ly , the Boa rd deter mined th at t h e ef

fe cti ve date of the assig nment of t he 60% disability rating was April 16, 1998, rathe r t han M ay 29, 1998. L ikewise, the Boa rd deter mined that April 16, 1998, was the proper ef fe ct i v e date for the awa

rd of a total disability rating based on individual unemploy ability , as Mr. B uie met the sche dular re quirements for such a rating at the time he was g rante d an incre ased disability rating for his low back condition.

5Next, the Boa rd eng ag ed in a long discussion of whether Mr. Buie ' s various statements in support of claim and corr espondenc e to VA throug hout the adjudication of his claim for benef its for

a back condition, including fo r en t i t l ement to total disability rating based on individual unemploy ability , met the require ments of a Notice of Disag ree ment. The Boa rd conclude d that Mr. Buie ' s Fe bruar

y 1997, Au gu s t 1 9 97, April 1998, and May 1998 statements wer e not Notices of Disag ree ment, and ther efor e the r eg ional office had not err ed in trea ting all of those statements as

new c laims for entitlement to an incr ease d disability rating for a

low back c ondition. Wit h respe ct to Mr. Buie ' s arg ument that his Novem

b e r 1995 claim for an incre ased disability rating for a low back condition should also have been construed as a reque st for consideration of entitlement to a total disability rating based on individual unemploy ability , the Boa rd ag ree d that the 1995 statement included an "inf ormal claim" for entitlement t o a total disability rating based on individual unemploy ability

. Howeve r, the Boa rd deter mine d that such an informal claim only trig g ere d VA' s duty t o send Mr. Buie an officia l application for that benef it, and that the reg ional office proper ly interpre ted Mr. Buie ' s failure to return the application form "a s an indication that he did not believe he qualified for a [t otal disability rating based on individual une mploy ability ]." R.
at 2 4

. Acc ording ly , the Board determined that the November 1995 statement could not provide a basis for an ear lier eff

ecti v e d at e for entitlement to a total disability rating based on individual unemploy ability

. On appea l, Mr. Buie makes two arg uments. First, with r espec t to his c laim f or benef its for

a l o w back condition, he contends that the Boa rd failed to consider 38 C.F.R. § 3.156(b), which provides, in pertinent part: "N ew and materia l evidenc e rec eived prior to the expiration of the appea l period

. . . will be considere d as having been filed in connec tion with the claim which was pending
at the beg inning of the appea l period." I n that reg ard, Mr. Buie arg ues that his Fe bruar

y 1997
statement to VA, rec eived within one y ear of the May 1996 reg ional office decision, abate d the finality of that decision, such that, when VA issued its J uly 1997 decision, it should have considere d

an eff ective date as ear ly as November 1995, the date of his initial claim for an incre ased disability rating

. L ikewise, he contends that his Aug ust 1997 and April 1998 statements also acte d to abate the finality

of the July

1997 and Mar ch 1998 re g ional office decisions, respe ctively

. As such, Mr. Buie arg ues t hat t he Board' s finding that he filed numerous new claims for an incre ased disabilit y

6rating and, by extension, its deter mination of t he proper effec tive date for a 60% d i s ability rating , is clea rly err oneous. Second, Mr. Buie arg ues t h at t h e Boa rd err ed in not awa

rding him specia l monthly compensa t i o n pursuant to 38 U.S.C. § 1114(s), despite the fac t that he met the statutory require ments for such a

n awa rd. I n response , the Secre tary ar g u e s th a t th e Boa rd' s deter mination that the May 1996, J uly 1997, and Marc h 1998 reg ional office decisions wer e final beca use Mr. Bu i e d i d not file Notices of Disag ree ment with those decisions is not clea rly err oneous

. He al s o contends that the Boa rd considere d and reje cted the possibili ty of an ear lier eff ective date for the awa

rd of t o t al d i s ability rating based on individual unemploy ability , and ther efor e "a ny arg ument that [Mr. Buie] arg ues is mooted and harmless." Secre tary ' s Br ief (B r.) at 10-11. Finally , the Secre tary asser ts that Mr. Buie is not entitled to specia l monthly compensa tion beca use the statute and reg ulation both require that the first prong of the section 1114(s) test be met by a single disability , not a combination of disabiliti es.

II. ANALYSIS A. Special Monthly

Compensation Mr. Buie arg ues that the Boa rd err ed by fa iling to consider and apply all applicable provisions of law and reg

ulation as require d by 38 U.S.C. § 7104(a)

. Specifica lly , he contends that his disability rating s rende red him elig ible, as a matter of law, to rec eive specia l monthly compensa tion pursuant
to 3 8 U. S

. C. § 1114(s) without having to file a separ ate claim. Appellant' s Br

. at 15-16 (citing Bradley v. Peak

e , 22 Vet.App. 280, 294 (2008)) ; see also Akles v. Derwinski , 1 Vet.App. 118, 121 (1991) (noting VA' s policy to consider specia l monthly compens a tion wher e applicable ). The statute provides, in per

tinent part: "I f the ve tera

n has a se rvice -conne cted disability rate d as total, and . . . has additional service -conne cted disability or disabiliti es independe ntly ra t able at 60 perc ent or more," then VA will awa

rd him specia l monthly compensa tion. 38 U.S.C. § 1114(s). The pertinent part of the impl em enting reg ulation provides: "T he specia l monthly compensa tion provided by 38 U.S.C. § 1114(s) is pa

y able wher e the veter an has a single service -conne cted disability rate d as 100 perc ent and

. . . [h] as additional service -conne cted disability or disabiliti es independe ntly rata ble at 60 per cent." 38 C.F.R. § 3.350(i)(1) (2010).

7Mr. Buie contends that, beca use he was alre ady g rante d entitlement to a total disability rating based on individual unemploy ability eff ective May 29, 1998 (prior to the Boa rd' s g rant of an ear lier eff ective date for that rating ), he was entitled to rec eive specia l monthly compen sation eff ective J anuar y 26, 2001, the eff

ective date VA assig ned for the awa rd of a 70% disability rating for post-traumatic stress disorder

. I n o t h er words, Mr. Buie rea ds the words "a service -conne cted disability rate d as total" in section 1114(s) to include a total disability rating based on individual unemploy ability , even wher e this rating is based on multipl e disabiliti es. This is a question of law that the Court revie ws de novo. See 38 U.S.C. § 7261; Lane v. Principi , 339 F.3d 1331, 1339 (F ed. Cir. 2003) (" [I ]nt erpr etation of a statute or re g ulation is a question of law." ). I n Bradley , the Court considere d a simil ar fac tual situation. There , when confr onted with an appellant seeking specia l monthly compensa tion based in pa rt on rec eipt of a total disability rating based on individual unemploy ability , the Secre tary raised the issue of "duplica te counting of disabiliti es," wher eby "a llowing [a total disability rating based on individual unemploy ability ] to satisfy the total disability

require ment of sec tion 1114(s), and one or m ore of the di sabilities upon which the [t otal disability rating based on indiv i dual unemploy ability ] was awa rded to satisfy the second require ment of an addit i o n al disability or disabiliti es of 60% or more, would result in the

same disability being counted twice." 22 Ve t

. App. at 293. The Court, howeve r, noted that this would not happen in all case s and hy pothesized a situation in which a claimant is in rec eipt of a total disability rating based on individual unemploy ability for a single d i s ab i l i ty and was there afte r

awa rded disability rating s for other conditions. The Court declined to exclude such a claimant from entitlement to specia l monthly compensa tion and held t h at section 1114(s) "doe s not limit ' a service -conne ct ed d i sability rate d as total' to only a schedula r rating of 100%, and the Secre tary ' s

curr ent reg ulation permits a [ total disability rating based on individual unemploy ability ] based on a single disabili ty to satisfy the statutory

require ment of a total rating." Id. (empha sis added). The Secre tary hang s his hat on the wordi n g i n B r a d ley emphasized above and arg ues that beca use Mr. Buie ' s total disa

bility rating for individual unemploy ability is based on more than one underly ing disability , he cannot be entitled to specia l monthly compensa tion. Mr. Buie arg ues that "[t]he fac t tha t the VA' s 2001 awa rd of a total rating based on unemploy ability was made based on a combination of disabilities is irreleva nt." Appe llant's Reply

Br . at 11. Neither

party is corre ct.

8First, the Court notes that a total disability rating for individual unemploy ability is a rating ,

not a disabili ty

. See Rice v. Shinseki , 22 Vet.App. 447, 452 (2009) (" [A] finding that an individual is entitled to [a total disability rating based on individual unemploy ability ]

. . . mere ly means that the
veter an has met cer

tain qualifica tions entitling him to a ' total disability ' rating." ); Norris v. W est , 12 Vet.App. 413, 420-21 (1 999). There fore , as t he C ourt held i n Bradley , a tot al di sability rating based on individual unemploy ability may satisfy the statutory require ment that a disability be "r ated
as t otal." 22 V et.App. at 293. How ever , the award of a total disability rating based on individual unemploy ability cannot meet the statutory require ment for "a service -conne cted disability " beca use it is not a disabili ty , but rather a rating . There fore , Mr. B uie i s incorre ct t hat VA's 2001 awa rd of

a total disability rating based on individual unemploy ability is sufficie nt, in itself, to meet the first require ment of the statutory test for spec ial monthly

compensa tion under sec tion 1114(s). Th e ab o v e analy sis alone does not resolve the question the Court is prese nted with in this
ap p ea l

. I n Bradley , the Court did not addre ss the question of whether the section 1114(s) require ment of a "se rvice -conne cted disability rate d as total" could be satisfied by a total disability rating based on individual unemploy ability that is based on more than one underly ing di s ab ility

. That is the question we r esolve today

.

"' Statutory interpre tation beg ins with the lang uag e of the statute, the plain meaning of which

we derive from its text and its structure .' " Myore v. Nicholson , 489 F.3d 1207, 1211 (F ed. Cir. 2007) (quoting McEntre e v. Me r i t Sys. Prot. Bd , 404 F.3d 1320, 1328 (F ed. Cir. 2005)); see Sharp v. Shinseki , 23 Vet.App. 267, 271 (2009); Gardner v. Derwinski , 1 Vet.App. 584, 586 (1991) (" Deter mining a statute' s plain meaning require s examining t he specific langua g e a t i s s u e and the

overa ll structure of the statute." (citing Bethesda Hosp. Ass'n v. Bowen , 485 U.S. 399, 403-05 (1988)) ), aff'

d , 5 F.3d 1456 (F ed. Cir.1993), aff' d , 513 U.S. 115 (1994); see also Mc Gee v. Pe ake , 511 F.3d 1352, 1356 (F ed. Cir. 2008). I f "' the plain meaning of a statute is discerna ble, that "pla in meaning must be g iven eff ect," ' " Johnson v. Brown , 9 Vet.App. 369, 371 (1996) (quoting Tallman v. Brown , 7 Vet.App. 453, 460 ( 1995)), unless a "' literal application of [t he] statute will pr oduce a result d em o n s t ra b l y at odds with the intention of its draf ters,' " Gardner , 1 Vet.App. at 586-87 (quoting Griffin v. Oce anic C o n t r actors, Inc. , 458 U.S. 564, 571 (1982)) ; Tropf v. Nicholson , 20 Vet.App. 317, 321, n.1 (2006) ( "[A] functioning sy stem of laws must g ive primacy to the plain

9lang uag e of authoriti es

. . . . Wit hout standard word meaning s and rules of construction, neither

Congr ess nor the Secre tary can know how to write authorities in a way that convey s their intent and

no prac titioner or–more importantl y

– v et eran can rely on a statute or reg ulation to mean what it
appea rs to say .") ; see also Rope r v. Nicholson , 20 Vet.App. 173, 180 (2006). The Court inter prets statutes de novo. See 38 U.S.C. § 7261; Lane , 339 F.3d at 1339; Butts v. Brown , 5 Vet.App. 532, 539 (1993) ( en banc ). I n Bradley , the Court examined the plain lang uag e of section 1114(s) and held: "[I ]t is clea r from the use of the lang uag e and the structure of the sentenc e [i n section 1114(s)] that Congr ess did
not intend that a 100% combined [schedular] rating suffice s for ' a service -conne cted disability rate d

as total.'" 22 Vet.App. at 290. The Court explained that "Cong ress used the article ' a' and singula r

' disability ' when establishing ' a service -conne cted disability rate d as total' as one of the require ments for [special monthly compensa tion] under section 1114(s)." Id. The Court noted that, "I n contra st, Congr ess permits the second require ment to be met with either a single ' disability or d isabiliti es i n d epende ntly ' rate d at 60%." Id. The Court conclude d that this distinction demonstra t ed "c ong ressional authorization f o r c o mb in e d r a

ti n g s to s a ti s f y the second require ment but not the first." Id. Simi larly , when draf ting the implementing reg ulation, § 3.350(i), VA used the article "a ," along with the adjec tive "sing le" and the singula r noun "disa

bility ," when establishing the require ment of "a single service -conne cted disability rate d as 100 perc ent" as the first require ment for specia l monthly compensa tion. 38 C.F.R. § 3.3 5 0 (i ). L ike the statute, VA' s reg ulation also clea rly permits the second require m ent to be met by additional "disa bility or disabiliti es" that are independe ntly rate d at 60%. Id. ; see Bradley , 22 Vet.App. at 292 (stati n g that VA' s reg ulation "a uthorizi ng the use of [a total disability rating based on individual une mploy ability ] to satisfy the

' total' rating require ment of section 1114(s) is a plausible and rea sonable interpre tation of the statute and this reg ulation is entitl ed to substantial defe renc e" ). Acc ording ly , based on the plain and unambig uous lang uag e of the statute, Congr ess' s demonstrated intent not to permit combined rating s to satisfy the first require ment of the statute, and the S ecr etar

y 's re asonable interpre tation of t he st atute, the Court cannot discern any rational basis
to permit a "total" rating –whether it be s ch edular , extraschedular , or based on individual

10unemploy ability –to sat i s fy t he statute when the total rating is based on more than a single service -conne cted disability

. H e n ce, althoug h a total disability rating for individual unemploy ability
may satisfy the "r ated as total" element of section 1114(s), the Court today holds that a total disability rating based on individual unemploy ability that is based on multi p le u nderly ing disabiliti es cannot s at i s fy the section 1114(s) require ment of "a service -conne cted disability " beca use that require ment must be met by a sing le disability

. That is not the end of the matter, howe ver. The Secre tary is a lso inc orre ct in a sserting that this analy sis means that Mr. Buie is ne cessa rily ineligible for specia l monthly compensa tion under section 1114(s). There is no lang uag e in either the statute or the reg ulation that rela tes to timing or sug g ests that the rele vant disabiliti es must be awa rded in a particula

r order

. See 38 U.C.S. § 1114(s); 38 C.F.R. § 3.350(i). The Court envisions a sce nario in which a veter an re ceive s a total disability rating based on individual unemploy ability that is based on multipl e underly ing disabiliti es and then later rec eives a schedula

r disability rating for a single , separ ate disability that would, by itself, cre ate the basis for an awa

rd of a total disability ra t i n g b as ed on individual unemploy ability

. I n this

scena rio, if the order in which the veter an rec eived the awa rds for his disabiliti es was deter minative, he would not be elig ible to rec eive specia l monthly compensa tion. Howeve r, if the veter an had been

awa rded service connec tion for these disabiliti es in the reve rse order , he would be elig ible to rec eive specia l monthly compensa ti o n

. T here is no evidenc e to sug g est that Congr ess intended such an absurd result, and nothing in the plain lang uag e of the statute or the reg ulation require s it. See Timex V. I. v. United States , 157 F.3d 879, 886 (F ed. Cir. 1998) (holding that a statutory or reg ulatory construction "tha t cause s absurd res u l t s i s t o b e avoided if at all possible" (citing Haggar Co. v. Helve ring , 308 U.S. 389, 394 ( 1940))) ; see also United States v . X-Citement Video , I nc., 513 U.S. 64 , 6 8-69 (1994); Gree n v. Bock Laundry Mach. Co. , 490 U.S. 504, 527-29 (1989) (Scalia, J ., concurring ). I n addition, such a result would be in conflict with VA' s well-e stablish ed d u t y t o maxi miz e a claimant' s benef its. See AB v. Brown , 6 Vet.App. 35, 38 (1993); 38 C.F.R. § 3.103(a ) (2010); see also Bradley , 22 Vet.App. at 294 (re man d i n g, p u rsuant to VA' s duty to maxi miz e benef it s , for VA to deter

mine whether the appellant' s post-traumatic stress disorder, rate d 70% d i s ab l i ng , would entitle him to a total disability rating based on individual unemploy ability and , there fore , specia l monthly compensa tion); cf. Sharp v. Shinseki , 23 Vet.App. 267, 276 (2 0 0 9)

11(holding that the order in which a veter an was awa rded benefi t s wa s n o t relevant to deter mining elig ibilit y to additional depende ncy compensa tion). T h er efore, the Court holds that the order i n which dis abilities are service connec ted i s n o t rele vant to VA' s deter

mination of a claimant' s elig ibilit y for specia l monthly co m pensation under section 1114(s). Whenever a veter an has a total disability rating , schedula r or extraschedular , based

on multipl e disabiliti es and the veter a n is s u b s e q u e n tl y a w a r d ed service connec tion for any additional disability or disabiliti es, VA' s duty to maxi miz e benef its require s VA to assess all of the claimant' s disabiliti es without reg ard to the order in w hich they wer e service connec ted to de termine whether
any combination of the disabili ties establishes entitlement to spe cial monthly compensa tion unde r section 1114(s). I f, afte r such an assessment, VA deter mines that the claimant is entitled to specia l monthly compensa tion, the eff ective date of the awa

rd of specia l monthly compensa tion will be the eff ective d at e assig ned for the awa rd of benef

its for the final disability that forms the rele vant combination of disabilities. I n this case , there is evidenc e in the rec ord to sug g est that Mr. Buie may be elig ible for a total disability rating for individual unemploy ability based on his service -conne cted post-traumatic stress disorder a lone. The B oard note d that: there i s at l east some evidenc e indicating that the veter an is totally disabled, even though the repor

ted sy mptomatology [for h is p o s t- tr a u ma ti c s tr e s s d is o r der] has never been consistent with the criter ia for a 100 perc ent [ schedula

r] rating

. I n particula

r, the veteran' s private phy sician . . . conc luded in a May 2001 repor t that the veteran has not been able to sustain work or social rela tionships since he was discharg ed, and that he considered the veter an permane n t l y and tot ally disabled because of this. A Global Assessment of F unctioning ( GAF ) scor e of 25 w as then a ssigne d.

R. at 15. Despite this evidenc e, the Boa rd did not consider whether Mr. Buie might be elig ible for 4 a total disability

rating based on individual une mploy ability based solely on his service -conne cted post-traumatic stress disorder. I f his post-traumatic stress disorder alone, fo r wh ich he has been assig ned a disability rating of 70%, would qualify him for a total disability rating based on individual unemploy ability , then th a

t c o n d ition would satisfy the require ment of a "se rvice -conne cted disability

A G l o b a l A s s e s s m e n t o f F u n c t i o n i n g s c o r e r e p r e s e n t s " t h e c l i n i c i a n 's j u d g m e n t o f t h e i n d i v i d u a l 's o v e r a l l l e v e l 4

o f f u n c t i o n i n g " a n d i s " u s e f u l i n p l a n n i n g t r e a t m e n t a n d m e a s u r i n g i t s i m p a c t [ ] a n d i n p r e d i c t i n g o u t c o m e

. " D IA G N O S T IC A N D S T A T IS T IC A L M A N U A L O F M E N T A L D IS O R D E R S 3 0 ( 4 t h e d

. 1 9 9 4 ) ; s e e R i c h a r d v

. B r o w n , 9 V e t

. A p p

. 2 6 6 , 2 6 7 ( 1 9 9 6 )

. 12rate d as total" and his service -conne cted leg and knee injuries would meet the requirem en t of

"a dditional service -conne cted disability or disabiliti es independe ntly rata ble at 60 perc ent or more." Acc ording ly , on rema

nd, the Boa

rd wi l l deter

mine whether Mr. Buie ' s service -conne cted post-traumatic stress disor der alone would be sufficie nt to entitle him to a total disability rating based

on individual unemploy ability

. I f so, in light of his other "disa b i l i t y or disabiliti es independe ntly
rata ble at 60%," 38 U.S.C. § 1114(s), he is entitled to rec eive spe cial monthly compensa tion, and the Boa rd should deter

mine the proper eff

ective date for such an awa rd. On rema

nd, Mr. Buie is fre e to submit additional evidenc e and arg ument in acc ordanc e with Kutscherousky v. W est , 12 Vet.App. 369, 372-73 (1999) (per

curia m order)

. See Kay

v. Principi , 16 Vet.App. 529, 534 ( 2002). B. 38 U .S.C. § 3.156(b) Turning to Mr. Buie 's cl aim for benef its for a low back disability , the Boa rd' s and the Secre tary ' s discussions of whether Mr. B uie' s Fe bruar

y and August 1997 and Apr il and May 1998
statements are Notices of Disag ree ment are not rele vant and d i s t ra ct from the rea l issue in this
matter. There is no dispute that those docum en t s are not Notices of Disag ree ment with the prior
reg ional office decisions in May 1996, J uly

1997, and Mar ch 1998. That, howeve r, does not end the inquiry , beca use those statements wer e submitt ed within one y ear of the reg ional office decisions they followed, and so, if those statements included the submissi on of new and materia l evidenc e, 38 C.F.R. 3.156(b) require s that any subsequent decision based on such evidenc e rela te back to the orig inal claim. As the United States Court of Appea ls for the Feder al C ircuit (F eder al C ircuit) ex plained, "[t] he current statutory and reg ulatory scheme

. . . provides that claimants have one y ear in which to appea l [a reg ional office ] decision deny ing service

connec tion, and that new evidenc e rec eived prior to the expiration of that one-y ear time period

. . . is to be considere d as having been filed in connec tion with the orig inal cl ai m

. " Je nnings v. Mansfiel d , 5 0 9 F.3d 1362, 1368 (F ed. Cir. 2007) (citing 38 U.S.C. § 7105(b)( 1), (c) ; 38 C.F.R. § 3.156(b) (2007))

. The Fe dera l Circuit went on to hold that a reg ional office decision become s final "only afte r the per iod for appea l ha s run," and that "[a]ny interim submissi ons befor e finality must be considered by the VA as part of t he original c laim." Id. Acc ording ly , the S ecr etar y ' s asser tion that the May 1996, J uly 1997, and Marc h 1998 reg ional office decisions are nece ssarily final beca use Mr. B uie fa iled to file Notices of Disag ree ment is incorre ct.

13The Boa rd did not discuss the application of § 3.156(b) in its decision, instead focusing on the question of whether Mr. Buie ' s statements satisfied 38 C.F.R. § 20.201 and wer e there fore Notices of Disag ree ment. This was undoubtedly err or. Eac h of Mr. Buie ' s statements was submitt ed within one y ear of the corr esponding reg ional office decision, and the Boa rd there fore should have considere d whether the statements included the submissi on of new and materia l evidenc e. 38 U.S.C. § 7104(a) (" Dec isions of the B oard sha ll be based on the entire r ecor d in the proce eding and upon consideration of all evidenc e and materia l o f re co rd and applicable provisions of law and
reg ulation.")

. Although the Secre tary contends that Mr. Buie ' s various statements do not contain materia l evidenc e, the deter

mination of whether evidence is materia l is a fac tual finding , and the Court is
empower ed only to revie w the Boa rd' s finding s in that reg ard. See Suavis o v. N i cholson , 19 Vet.App. 532, 533 (2006) (holding that the deter mination of new and materia l ev i d en ce i s a fac tual finding the C ourt re v i ew s under the "c lear ly err oneous" standard)

. Be cause , howeve r, t he Boa rd has made no such finding s, Mr. Buie ' s appea l of the eff ective date assig ned for an incre ased disability rating for a low back disability , including entitlement to a total disability rating based on individual unemploy ability , must be rema nded for the Boa

rd to consider t his question in the first instance. See Elkins v. Gober , 229 F.3d 1369, 1377 (F ed. Cir. 2000) (" Fa ct-finding in veter ans case s is to be done by the expert [Board], not by the Veter ans Court.") ; Rice , 22 Vet.App. at 453 (holding that entitlement to a tota l disability rating based on individual unemploy ability is not a separ ate claim, but is part o f a claim for an incre ased disability rating wher e there is evidenc e of unemploy ability ). On rema nd, the Boa

rd should consider the application of § 3.156(b), including rec onsidering whethe r t h e regiona l office corr ectly char acte rized Mr. Buie' s Fe bruar y 1997, Aug ust 1997, April 1998, and May 1998 statements as new claims for an incre ased disability rating

. Mr. Buie is fre e to submit additional evidenc e and arg ument with r espec t to this claim. See Kay , 16 Vet.App. at 534; Kutscherousky , 12 Vet.App. a t 372-73.

14III. CONCLUSION

Upon consideration of the fore g oing, the May 5, 2008, Boa rd decision is VACATED and the
matters ar e REMANDED for r eajudication consistent with thi s decision.

15