Philbrook v. McDonough, No. 20-2233 (Fed. Cir. 2021)
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Philbrook served in the Army, 2000-2004, then was awarded disability compensation for PTSD. In 2011, Philbrook stipulated to a judgment of “guilty except for insanity” in connection with a felony. He was ordered into 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.” Philbrook then applied for total disability based on individual unemployability (TDIU).
A VA regional office concluded that Philbrook’s PTSD did not entitle him to TDIU because it did not preclude gainful employment. The Board of Veterans’ Appeals denied TDIU “as a matter of law”; 38 U.S.C. 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 Federal Circuit reversed. Philbrook was not confined in a “penal institution or correctional facility”; he was committed to a mental institution, “a hospital for people with mental or emotional problems.” 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.
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