Terrance G. Mackey v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
TERRANCE G. MACKEY,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1854
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-5693, Chief Judge Michael P.
Allen, Judge Coral Wong Pietsch, Judge Margaret C. Bart-
ley.
______________________
Decided: March 30, 2026
______________________
ADAM STEINMETZ, Desmarais LLP, Washington, DC,
argued for claimant-appellant. Also represented by
T HOMAS D ERBISH , J USTIN P.D. WILCOX .
BORISLAV K USHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by ERIC P. BRUSKIN, P ATRICIA M. M C CARTHY , BRETT
SHUMATE; J ONATHAN K RISCH , D EREK SCADDEN, Office of
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MACKEY v. COLLINS 2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before P ROST , HUGHES , and STARK, Circuit Judges.
P ROST , Circuit Judge.
Terrance G. Mackey appeals a decision of the Court of
Appeals for Veterans Claims (“Veterans Court”) denying
him entitlement to special monthly compensation (“SMC”)
under 38 U.S.C. § 1114(s). For the reasons below, we af-
firm.
BACKGROUND
Mr. Mackey served in the U.S. Air Force from 1986 to
1990. In 2009, he filed an application for a total disability
rating based on individual unemployability (“TDIU”). The
Department of Veterans Affairs Regional Office (“RO”)
granted his claim for a TDIU rating. The RO’s rating deci-
sion explained that his service-connected disabilities, in-
cluding sixty percent for bowel incontinence, forty percent
for intervertebral disc syndrome, and forty percent for
bladder incontinence for a combined rating of ninety per-
cent, had “affect[ed] physical employment,” and the associ-
ated pain had “affect[ed] sedentary and physical
employment.” J.A. 1980. It also noted his other service-
connected disabilities, including ten percent for hyperten-
sion, ten percent for left lower extremity radiculopathy, ten
percent for right lower extremity radiculopathy, and ten
percent for degenerative arthritis of the cervical spine.
J.A. 1992–93.
In addition to ordinary disability benefits, some se-
verely disabled veterans are entitled to SMC, which is only
available to veterans with “a service-connected disability
rated as total.” 38 U.S.C. § 1114(s). In February 2018,
Mr. Mackey filed a claim for SMC under § 1114(s) based on
his TDIU rating, J.A. 1429–32, which the RO denied,
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MACKEY v. COLLINS 3
J.A. 1240–41. He again filed a claim for SMC in September
2018, J.A. 1204–07, which the RO again denied,
J.A. 1108–09. Mr. Mackey appealed that RO decision to
the Board of Veterans’ Appeals (“Board”). The Board de-
termined that Mr. Mackey was not entitled to SMC be-
cause he “did not have one service-connected disability that
was rated totally disabling, nor was his TDIU rating based
on one disability” as required by § 1114(s). J.A. 18.
The Veterans Court affirmed the Board’s decision.
Mackey v. McDonough, No. 22-5693, 2023 WL 8284016
(Vet. App. Nov. 30, 2023). It rejected Mr. Mackey’s argu-
ment that, for the purposes of § 1114(s), he “could combine
[his various disabilities] to constitute a service-connected
disability rated as total.” Id. at *2; see also id. at *3–5. The
single-judge decision was ultimately adopted by the Veter-
ans Court. J.A. 3.
Mr. Mackey timely appealed. We have jurisdiction un-
der 38 U.S.C. § 7292.
D ISCUSSION
In appeals from decisions of the Veterans Court, we
generally “may not review (A) a challenge to a factual de-
termination, or (B) a challenge to a law or regulation as ap-
plied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). This court does, however, have jurisdiction to
“decide all relevant questions of law, including interpreting
constitutional and statutory provisions.” Id. § 7292(d)(1).
“We review the Veterans Court’s statutory interpretation
de novo.” O’Brien v. Wilkie, 948 F.3d 1339, 1341 (Fed. Cir.
2020).
This case turns on the interpretation of 38 U.S.C.
§ 1114(s), and in particular, the phrase “a service-con-
nected disability rated as total.” Mr. Mackey argues that
we should interpret § 1114(s) “to encompass all TDIU rat-
ings, regardless [of] whether based on one underlying
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MACKEY v. COLLINS 4
disability or multiple underlying disabilities.” Reply Br. 20
(emphasis in original). We disagree.1
We start and end our analysis with the statutory text.
The provision at the heart of this dispute states in relevant
part:
If the veteran has a service-connected disability
rated as total, and (1) has additional service-con-
nected disability or disabilities independently rat-
able at 60 percent or more, or, (2) by reason of such
veteran’s service-connected disability or disabili-
ties, is permanently housebound, then the monthly
compensation shall be $2,993.
38 U.S.C. § 1114(s) (emphasis added). Concerning the op-
erative phrase “a service-connected disability rated as to-
tal,” the use of the article “a” and the singular “disability”
suggest that Congress intended to reference one disability
rather than several. Moreover, within subsection (s), the
statute distinguishes between the singular “disability” and
the plural “disabilities.” See Bittner v. United States,
598 U.S. 85, 94 (2023) (“When Congress includes particular
language in one section of a statute but omits it from a
neighbor, we normally understand that difference in lan-
guage to convey a difference in meaning (expressio unius
est exclusio alterius).” (italics in original)). Taken together,
the plain language of § 1114(s) establishes that Congress
did not intend for multiple disabilities with ratings com-
bining to a disability rated as total to qualify as “a service-
connected disability rated as total.” Nor did Congress
1 In Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir.
2011), we declined to decide “whether and in what circum-
stances the benefits of [§] 1114(s) are available to a veteran
with a TDIU rating.” Id. at 1048 n.1. We must now decide
that issue.
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MACKEY v. COLLINS 5
intend § 1114(s) to mean that multiple disabilities justify-
ing a TDIU rating can combine to form “a service-connected
disability rated as total.” Rather, only a single service-con-
nected disability rated as total can meet the “a service-con-
nected disability rated as total” requirement under
§ 1114(s).
Thus, under our interpretation of § 1114(s), the Veter-
ans Court properly denied Mr. Mackey’s SMC claim. His
TDIU rating was predicated on multiple disabilities, none
of which was or could have alone constituted a disability
rated as total. And he has not provided us with any sound
reasons to disturb the Veterans Court’s decision.
In the alternative, Mr. Mackey argues that even if we
deem § 1114(s) limited to TDIU ratings that are based on
a single service-connected disability rated as total, we
should “nevertheless reverse because Mr. Mackey’s TDIU
is based on underlying orthopedic disabilities that are clas-
sified as ‘one disability’ under” 38 C.F.R. § 4.16(a). Appel-
lant’s Br. 30. We disagree.
There are two paths to TDIU under § 4.16—subsec-
tions (a) and (b). To receive a TDIU rating under § 4.16(a),
a veteran must have either one disability rated at sixty per-
cent or more, or multiple disabilities with a combined rat-
ing of seventy percent or more with at least one of those
disabilities rated at forty percent or more. Section 4.16(a)
states in relevant part:
For the above purpose of one 60 percent disability,
or one 40 percent disability in combination, the fol-
lowing will be considered as one disability: (1) Dis-
abilities of one or both upper extremities, or of one
or both lower extremities, including the bilateral
factor, if applicable, (2) disabilities resulting from
common etiology or a single accident, (3) disabili-
ties affecting a single body system, e.g. orthopedic,
digestive, respiratory, cardiovascular-renal, neuro-
psychiatric, (4) multiple injuries incurred in action,
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MACKEY v. COLLINS 6
or (5) multiple disabilities incurred as a prisoner of
war.
38 C.F.R. § 4.16(a) (emphasis added). By explicitly speci-
fying that “one disability” is to be used “[f]or the above pur-
pose,” § 4.16(a) limits the applicability of the phrase “one
disability” to determining whether a veteran’s TDIU re-
quest is eligible under § 4.16(a); that is, § 4.16(a)’s “one dis-
ability” clause is used only to show entitlement to TDIU
benefits. Thus, even if multiple service-connected disabili-
ties are considered “one disability” under § 4.16(a), that
fact alone does not demonstrate “a service-connected disa-
bility rated as total” for the purposes of § 1114(s).
CONCLUSION
We have considered Mr. Mackey’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
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