United States Court of Appeals
for the Federal Circuit
__________________________
CHESTER R. GASTON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2009-7104
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 07-0604, Judge Alan G. Lance, Sr.
___________________________
Decided: May 20, 2010
___________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
ALLISON KIDD-MILLER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and RACHAEL T. SHENKMAN,
GASTON v. DVA 2
Attorney, Office of the General Counsel, United States
Department of Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, BRYSON, and DYK, Circuit Judges.
DYK, Circuit Judge.
Chester R. Gaston (“Gaston”) appeals from a final
judgment of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) denying his claim to an
earlier effective date for his award of total disability based
on individual unemployability (“TDIU”). See Gaston v.
Shinseki, No. 07-0604, 2009 WL 624041 (Vet. App. Mar.
10, 2009) (“Veterans Court Decision”). We hold that under
38 U.S.C. § 5110(b)(2), a veteran is only entitled to an
earlier effective date if an increase in his disability oc-
curred during the year before he filed his claim. Here, the
Veterans Court concluded that the increase in Gaston’s
disability occurred more than one year earlier than the
filing of his claim. Accordingly, we affirm.
BACKGROUND
Gaston served in the U.S. Army from June 1970 to
August 1987. Upon leaving the service, the Veterans
Administration (“VA”) awarded Gaston service connection
for knee and back conditions, and hearing loss. These
disabilities were initially rated noncompensable. In 1990,
the VA increased the rating for Gaston’s back condition to
10%. In April 1995, the VA granted Gaston service con-
nection for post-traumatic stress disorder (“PTSD”) at an
initial rating of 30% and tinnitus at an initial rating of
10%. The VA also increased the rating for Gaston’s right
knee to 10%. A February 1996 VA decision continued
these assigned ratings. In March 1999, Gaston filed a
formal claim for TDIU and requested an increased rating
for PTSD. In March 2000, the VA granted Gaston’s TDIU
claim. In addition, the VA increased Gaston’s PTSD
3 GASTON v. DVA
rating to 50% and his left knee rating to 10%. The VA
granted an effective date of March 25, 1999—the date of
Gaston’s claim—for the award of TDIU and the increased
PTSD and left knee ratings.
Gaston appealed the TDIU effective date to the Board
of Veterans’ Appeals (“Board”), arguing, inter alia, that he
should have been awarded an effective date of one year
prior to the date of his formal TDIU claim under 38
U.S.C. § 5110(b)(2). He did not challenge the effective
date for the increase in the PTSD or left knee ratings.
Section 5110(b)(2) provides that the effective date of an
increase in disability compensation “shall be the earliest
date as of which it is ascertainable that an increase in
disability had occurred, if application is received within
one year from such date.” The VA treats an award of
TDIU for an already service-connected disability as an
award of increased compensation for the purposes of
§ 5110(b)(2). See Dalton v. Nicholson, 21 Vet. App. 23,
32–34 (2007). It is unclear whether Gaston alleged that
his disability increase had occurred (1) because the condi-
tions for an award of TDIU were satisfied or (2) because
the severity of the PTSD had increased, which, in turn,
created the conditions for TDIU. 1 The Board appeared to
reject both theories, as did the Veterans Court.
1 TDIU may be awarded when a veteran’s
schedular rating for service-connected disabilities is less
than total when the veteran is found to be unable to
secure or follow substantially gainful employment as a
result of a single service-connected disability rated at 60%
or more, or as a result of two or more service-connected
disabilities where at least one of those disabilities is rated
at 40% or more and the veteran’s combined disability
rating is 70% or more. 38 C.F.R. § 4.16(a). Veterans who
do not meet the disability rating requirements may still
receive TDIU on an extraschedular basis if they are
unable to secure and follow substantially gainful employ-
GASTON v. DVA 4
The Board concluded that Gaston would be entitled to
an effective date up to one year prior to the date of his
TDIU claim under 38 U.S.C. § 5110(b)(2) only if it was
“‘factually ascertainable’ that there was an increase in the
service-connected disabilities such that it rendered [Gas-
ton] unemployable within one year of receipt of his formal
claim for TDIU in March 1999.” In re Gaston, No. 02-16
763, slip op. at 9 (Bd. Vet. App. Nov. 6, 2006). Examining
Gaston’s medical records, the Board “[did] not find that
the . . . medical records provide[d] evidence of increased
disability of the service-connected disabilities or of total
disability based on service-connected disabilities for the
year preceding receipt of [Gaston’s] claim for increase in
March 1999.” Id. at 11. Thus, the Board denied Gaston
an effective date for TDIU prior to March 25, 1999.
Gaston appealed the Board’s decision to the Veterans
Court. He argued that because his Social Security Ad-
ministration (“SSA”) records demonstrated that his condi-
tion had worsened in October 1994, it was “factually
ascertainable” that his disability had increased before his
formal claim for TDIU was filed in March 1999, and
therefore he was entitled to an effective date one year
prior to the VA’s receipt of his claim. The Veterans Court,
however, explained that 38 U.S.C. § 5110(b)(2) only
permitted the assignment of an effective date earlier than
the date of Gaston’s claim if his disability had become
worse during the year prior to his claim. See Veterans
Court Decision, 2009 WL 624041, at *4. The court held
that “[i]f [Gaston]’s disability became worse . . . (as he
asserts is established by the record in the form of SSA
documents) many years before he filed his claim for an
award of TDIU, those documents do not establish that his
condition worsened in the year prior to his claim for TDIU
filed in March 1999.” Id. The court then noted that “[t]he
ment by reason of service-connected disabilities. Id.
§ 4.16(b).
5 GASTON v. DVA
Board did not find any of the evidence between March
1998 and March 1999 to indicate a factually ascertainable
increase in [Gaston’s] conditions supporting [his] claim for
an earlier effective date for an award of TDIU.” Id. The
Veterans Court thus affirmed the Board’s denial of an
earlier effective date for TDIU. Gaston timely appealed.
DISCUSSION
We have jurisdiction to review decisions of the Veter-
ans Court “with respect to the validity of a decision of the
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the Court in
making the decision.” 38 U.S.C. § 7292(a); see Forshey v.
Principi, 284 F.3d 1335, 1359 (Fed. Cir. 2002) (en banc)
(“We hold that we have jurisdiction over . . . issues of
interpretation if the Court of Appeals for Veterans Claims
elaborated the meaning of a statute or regulation and the
decision depended on that interpretation . . . .”), super-
ceded on other grounds by Veterans Benefits Act of 2002,
Pub. L. No. 107-330, § 402(a), 116 Stat. 2820, 2832. We
therefore have jurisdiction to review all legal questions
decided by the Veterans Court. See Szemraj v. Principi,
357 F.3d 1370, 1374–75 (Fed. Cir. 2004). We review a
claim of legal error in a decision of the Veterans Court
without deference. Id. at 1372. This appeal rests on the
proper construction of 38 U.S.C. § 5110(b)(2).
Under 38 U.S.C. § 5110(a), the effective date of an in-
crease in a veteran’s disability compensation “shall be
fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefor.”
Section 5110(b)(2) provides an exception to this general
rule:
The effective date of an award of increased com-
pensation shall be the earliest date as of which it
is ascertainable that an increase in disability had
GASTON v. DVA 6
occurred, if application is received within one year
from such date.
In accordance with this subsection, the VA has promul-
gated 38 C.F.R. § 3.400(o)(2), which states that the effec-
tive date of any increase in disability compensation will
be the “[e]arliest date as of which it is factually ascertain-
able that an increase in disability had occurred if [the]
claim is received within 1 year from such date”; otherwise,
the effective date of the increase is the date of receipt of
the claim.
Gaston argues that the Veterans Court misconstrued
38 U.S.C. § 5110(b)(2) by limiting it to cases in which the
evidence demonstrates that an increase in a veteran’s
service-connected disability occurred during the one year
prior to the claim. Under Gaston’s interpretation of the
statute and accompanying regulation, if there is evidence
that an increase occurred during or before the one year
prior to the veteran’s claim, the effective date for in-
creased compensation will be based on the “facts found” as
required by § 5110(a), but no earlier than the “one-year
look-back period.”
The government responds that the Veterans Court
correctly limited § 5110(b)(2) to situations in which there
was an increase in disability during the year prior to the
claim. The government agrees that the entire claimed
increase need not occur within the one-year period, but at
least some part of the increase must occur during that
period. If there is some increase during that period, the
veteran is entitled to an earlier effective date (up to one
year) for the entire increased disability. We agree that
the statute compels these results.
It is clear from the plain language of 38 U.S.C.
§ 5110(b)(2) that it only permits an earlier effective date
for increased disability compensation if that disability
increased during the one-year period before the filing of
7 GASTON v. DVA
the claim. Section 5110(b)(2) first specifies that the
effective date of an increase “shall be the earliest date”
that the evidence shows “an increase in disability had
occurred.” The statute then imposes a condition, permit-
ting application of this earlier date only “if application is
received within one year from such date.” 38 U.S.C.
§ 5110(b)(2).
The government notes that eleven other subsections
in § 5110 provide veterans and other claimants earlier
effective dates for claims filed within one year of an
event. 2 We find it equally difficult to read these other
2 See 38 U.S.C. § 5110(b)(1) (specifying effective
date of award of disability as day following discharge or
release “if application therefor is received within one year
from such date of discharge or release”); id.
§ 5110(b)(3)(A) (specifying effective date of disability
pension as date “veteran became permanently and totally
disabled, if the veteran applies for a retroactive award
within one year from such date”); id. § 5110(c) (specifying
effective date of disability compensation under 38 U.S.C.
§ 1151 as date of injury or aggravation “if an application
therefor is received within one year from such date”); id.
§ 5110(d) (specifying effective date of death benefits as
first day of month in which death occurred if “application
is received within one year from the date of death”); id.
§ 5110(e)(1) (specifying effective date of dependency and
indemnity compensation as first day of month in which
entitlement arose “if application therefor is received
within one year from such date”); id. § 5110(e)(2) (specify-
ing effective date of dependency and indemnity compensa-
tion for child age eighteen or over as date child turns
eighteen “if application therefor is received within one
year from such date”); id. § 5110(f) (specifying effective
date of additional disability compensation based on de-
pendents as date of rating decision “if proof of dependents
is received within one year from the date of notification of
such rating action”); id. § 5110(j) (specifying effective date
of death benefits as first day of month of death “if applica-
tion therefor is received within one year from the date
such report or finding [of date of death] has been made”);
GASTON v. DVA 8
provisions as allowing earlier effective dates for claims
filed more than one year after the specified event. Gaston
offers no plausible construction of the statute that could
support his position that an increase in disability that
occurred more than one year before the filing of a claim
allows a veteran to claim an effective date of one year
before the date of the claim.
Gaston argues that Congress could not have intended
to limit the statute to increases that occur during the one-
year period. The legislative history of the provision,
however, demonstrates that the purpose of § 5110(b)(2)
was to provide veterans a one-year grace period for filing
a claim following an increase in a service-connected
disability. Congress enacted § 5110(b)(2) in 1975. See
Veterans Disability Compensation and Survivor Benefits
Act of 1975, Pub. L. No. 94-71, § 104(2), 89 Stat. 395, 396.
Prior to that time, “the law provide[d] that increases in
compensation payments because of increased disablement
[would] be made from the date of an application for in-
crease.” 121 Cong. Rec. 23,937 (1975) (statement of Rep.
Roberts). Congress intended the new provision to allevi-
ate that strict rule by “permit[ting] retroactive payment of
increased compensation from the date of increase in
id. § 5110(k) (specifying effective date of spousal or child
benefits following annulment of marriage as “date judicial
decree of annulment becomes final if a claim therefor is
filed within one year from the date the judicial decree of
annulment becomes final”); id. § 5110(l) (specifying effec-
tive date of spousal or child benefits following termination
of remarriage as date of death or date divorce becomes
final “if an application therefore is received within one
year from such termination”); id. § 5110(n) (specifying
effective date of benefits as date of marriage, birth, or
adoption “if proof of such event is received by the Secre-
tary within one year from the date of the marriage, birth,
or adoption”); see also id. § 5110(g), (i) (limiting retroac-
tive benefits to one year).
9 GASTON v. DVA
disability up to 1 year when that date is ascertainable.”
Id.
In addition, Congress modeled the new statute after
the disability pension provision providing a one-year
grace period—currently found at 38 U.S.C. § 5110(b)(3)(A)
(quoted in note 2, supra)—that it had just enacted into
law in the previous Congress. The Senate committee
report for § 5110(b)(2) noted that “[t]his amendment is
consistent with amendments concerning pension awards
made last year by Public Law 93-177 [i.e.,
§ 5110(b)(3)(A)].” S. Rep. No. 94-214, at 20 (1975), as
reprinted in 1975 U.S.C.C.A.N. 771, 772; see 121 Cong.
Rec. 23,937 (“This amendment is consistent with a similar
amendment governing awards of pension enacted last
year.”); see also Act of Dec. 6, 1973, Pub. L. No. 93-177,
§ 6(a), 87 Stat. 694, 696. The disability pension provision
of § 5110(b)(3)(A) originated as a proposal by the VA to
“afford[] the disabled veteran a year from onset of disabil-
ity to apply for pension and, if he is otherwise eligible,
authorize payment retroactively to the date on which he
became permanently and totally disabled.” S. Rep. No.
93-373, at 24 (1973) (letter from Donald E. Johnson,
Administrator of Veterans’ Affairs). The VA explained
that “[t]he 1-year period prescribed by the proposal within
which to apply for disability pension is considered reason-
able.” Id. In passing the VA’s proposal, Congress was
“adopt[ing] [the] Veterans’ Administration recommenda-
tion.” H.R. Rep. No. 93-398, at 4 (1973). This history
shows that Congress passed the disability pension provi-
sion of § 5110(b)(3)(A) to provide veterans a one-year
grace period for filing their claim. It further suggests that
by passing § 5110(b)(2), Congress intended to implement
a similar grace period for increases in disability. Thus,
consistent with the plain language of the statute and this
legislative history, the only reasonable construction of 38
U.S.C. § 5110(b)(2) is that a veteran’s claim for increased
GASTON v. DVA 10
disability compensation must be filed within one year of
an increase in the disability, as shown by the evidence, in
order to obtain an effective date earlier than the date of
the claim.
The Veterans Court correctly construed 38 U.S.C.
§ 5110(b)(2) and its implementing regulation as requiring
that an increase in a veteran’s service-connected disabil-
ity must have occurred during the one year prior to the
date of the veteran’s claim in order to receive the benefit
of an earlier effective date.
We have considered Gaston’s other arguments alleg-
ing error in the decision of the Veterans Court, and we
find them to be without merit. In particular, we reject
Gaston’s contention that 38 C.F.R. § 3.340(a)(1) provides a
separate basis for an award of TDIU. See Johnston v.
Nicholson, 421 F.3d 1285, 1288 (Fed. Cir. 2005) (noting
that the regulation “merely sets forth the general stan-
dards for total disability ratings”).
AFFIRMED
COSTS
No costs.