Chandler v. SHINSEKI

United States Court of Appeals
for the Federal Circuit
__________________________

HOWARD E. CHANDLER,
Claimant-Appellee,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellant.
__________________________

2011-7030
__________________________

Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-932, Judge Alan G.
Lance, Sr.
_________________________

Decided: April 11, 2012
_________________________

PAIGE M. WILLAN, Chadbourne & Parke, LLP, of New
York, New York, argued for claimant-appellee. With her
on the brief was THOMAS E. RILEY. Of counsel on the brief
was MARGARET C. BARTLEY, National Veterans Legal
Services, of Washington, DC.

SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellant. With him on the brief were TONY WEST,
CHANDLER v. DVA 2

Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN E. HOCKEY, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and Y. KEN LEE, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________

Before RADER, Chief Judge, MOORE, Circuit Judge and
AIKEN, District Judge. *
Opinion for the court filed by Chief Judge RADER. District
Judge AIKEN concurs in the result.
RADER, Chief Judge.
The Secretary of Veterans Affairs (“Secretary”) ap-
peals the decision of the U.S. Court of Appeals for Veter-
ans Claims (“Veterans Court”) finding Howard Chandler
entitled to a special monthly pension under 38 U.S.C.
§ 1521(e) (2001) in view of the Veterans Court’s interpre-
tation of 38 U.S.C. § 1513(a) (2006) in Hartness v. Nichol-
son, 20 Vet. App. 216 (2006). Chandler v. Shinseki, 24
Vet. App. 23 (2010). Because this court overrules the
Veterans Court’s decision in Hartness, this court reverses
and remands for further proceedings.
I.
Howard Chandler (“Chandler”) is a U.S. Navy veteran
who served on active duty during the Korean Conflict and
receives pension benefits for non-service connected dis-
abilities that render him permanently and totally dis-
abled. In 1992, at the age of fifty-seven, Chandler began
receiving pension benefits under 38 U.S.C. § 1521(a) for

* The Honorable Ann L. Aiken, Chief Judge, United
States District Court for the District of Oregon, sitting by
designation.
3 CHANDLER v. DVA

non-service connected disabilities. Chandler has a com-
bined disability rating of 80% based on the following
ratable disabilities: prostate cancer (60%), osteoarthritis
of the right and left knees (10%), glaucoma/cataracts
(10%), hypertension (10%), hyperthyroidism (10%), and
major depressive disorder (10%). These disabilities
prevent him from maintaining employment, and thus
render him “permanently and totally disabled.” See 38
U.S.C. § 1502(a)(3) (“Unemployable as a result of disabil-
ity reasonably certain to continue throughout the life of
the person.”). He received a pension at the rate pre-
scribed by 38 U.S.C. § 1521(b).
In 2006, at seventy-one years old, Chandler applied to
a Regional Office (“RO”) of the Department of Veterans
Affairs (“VA”) for an enhanced pension under the special
monthly rate prescribed by 38 U.S.C. § 1521(e). In his
request, Chandler sought consideration for housebound
status under section 1521(e) because he was older than 65
years of age and had a disability rating of more than 60%.
Chandler explicitly relied on the Veterans Court’s deci-
sion in Hartness to support his claim. The RO determined
that Chandler did not meet the requirements for the
special monthly pension and denied the claim. The RO
distinguished Hartness on the basis that Chandler was
originally granted a pension based on disability, not age.
Chandler filed an appeal with the Board of Veterans’
Appeals (“the Board”), which was denied because he had
received a pension under section 1521 before turning
sixty-five. In that case, he could not rely on section
1513(a) to remove the pension eligibility requirement of
section 1521(e).
Chandler appealed the Board’s decision to the Veter-
ans Court. Initially, the Veterans Court heard oral ar-
guments before a three-member panel, but sua sponte
CHANDLER v. DVA 4

issued an en banc decision. The Veterans Court ad-
dressed Chandler’s eligibility to receive “a single pension
at the higher rate described in section 1521(e) rather than
the lower, basic rate.” Chandler v. Shinseki, 24 Vet. App.
23, 28 (2010). The Veterans Court specifically reconsid-
ered its recent decision in Hartness. The Veterans Court
highlighted three reasons to retain Hartness: (i) it was
“rightly decided in the first instance,” (ii) it did not affect
the ambiguity between sections 1513 and 1521, and (iii) it
deserved application of principles of stare decisis. Id. at
28-29. The Veterans Court also determined that the
purpose of section 1513(b) was to prevent a veteran from
collecting two pensions, i.e., pensions under both sections
1513 and 1521, “but it does not prevent a veteran from
receiving a higher pension under section 1513 simply
because he would be eligible only for a basic pension
under section 1521.” Id. at 30. Accordingly, the Veterans
Court reversed and remanded the Board’s decision.
The Secretary filed a timely appeal. This court has
jurisdiction under 38 U.S.C. § 7292 (2010).
II.
This court has jurisdiction to review a decision of the
Veterans Court “with respect to the validity of a deci-
sion . . . on a rule of law or of any statute or regula-
tion . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on
by the [Veterans Court] in making the decision.” Gaston
v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (citing 38
U.S.C. § 7292(a); Forshey v. Principi, 284 F.3d 1335, 1359
(Fed. Cir. 2002) (en banc), superseded on other grounds by
Veterans Benefits Act of 2002, Pub. L. No. 107-330,
§ 402(a), 116 Stat. 2820, 2832).
This court sets aside any decision of the Veterans
Court that is found to be “(A) arbitrary, capricious, an
5 CHANDLER v. DVA

abuse of discretion, or otherwise not in accordance with
law; (B) contrary to constitutional right, power, privilege,
or immunity; (C) in excess of statutory jurisdiction, au-
thority, or limitations, or in violation of a statutory right;
or (D) without observance of procedure required by law.”
38 U.S.C. § 7292(d)(1) (2010). This court reviews statu-
tory interpretations of the Veterans Court without defer-
ence. See, e.g., Boggs v. Peake, 520 F.3d 1330, 1333 (Fed.
Cir. 2008). However, absent a constitutional issue, this
court may not review a factual determination or an appli-
cation of law to the facts. 38 U.S.C. § 7292(d)(2) (2010).
At the outset, this court detects no waiver of a chal-
lenge to Hartness in this case. This court has the author-
ity to correct a statutory interpretation of the Veterans
Court when it was “relied on” to decide a case—even when
it was not contested below. See Forshey, 284 F.3d at 1350.
Because Hartness was an underlying premise for the
decision below, this court may address this issue of statu-
tory interpretation.
The Veterans Court in Hartness v. Nicholson, 20 Vet.
App. 216 (2006), addressed the interplay between 38
U.S.C. §§ 1513 and 1521. In Hartness, the Board rejected
Hartness’ application for special monthly pension benefits
because he did not have a single disability rated as per-
manent and total under §1521(e) and 38 C.F.R. § 3.351(d).
On appeal, the Veterans Court found that the Board erred
in not applying § 1513(a), noting that “generally, where a
veterans benefit statute is ambiguous, ‘interpretive doubt
is to be resolved in the veteran’s favor.’” Hartness, 20 Vet.
App. at 220 (citing Gardner v. Brown, 513 U.S. 115, 118
(1994)). The Veterans Court determined that, by the
plain language of § 1513(a), “the requirement under
section 1521 that a veteran be permanently and totally
disabled or have a disability rated as permanent and total
is excluded” for a veteran who is at least 65 years old and
CHANDLER v. DVA 6

meets the service requirements of § 1521. Id. The Veter-
ans Court also held “that application of § 1513(a) results
in the exclusion of the permanent-and-total-disability
requirement in §§ 1521(a) and (e) when considering
whether a veteran 65 years of age or older is entitled to
non-service-connected disability pension.” Id. at 221.
The Veterans Court stated that its application of
§ 1513(a) to reconstruct the requirements of § 1521 was
“consistent with Congress’ intent to provide a pension to
veterans aged 65 years of age or older regardless of dis-
ability.” Id. at 222. In a footnote, the Veterans Court
acknowledged that the permanent and total disability
requirements of subsections (a) and (e) of section 1521
were defined differently, but declined to explore the
implications of conflating their meanings. Id. at 221 n.2.
III.
The present appeal hinges on the proper construction
of 38 U.S.C. §§ 1513 and 1521 and the interplay between
those statutory sections. Section 1521 provides a pension
for wartime veterans with non-service-connected disabili-
ties who meet certain requirements. Under the statute,
however, a veteran only qualifies if “permanently and
totally disabled:”
The Secretary shall pay to each veteran of a pe-
riod of war who meets the service requirements of
this section . . . and who is permanently and to-
tally disabled from non-service connected disabil-
ity not the result of the veteran's willful
misconduct, pension at the rate prescribed by this
section . . . .
38 U.S.C. § 1521(a) (2001) (emphasis added). Section
1502 is titled “[d]eterminations with respect to disability”
and sets the requirements for such disability.
7 CHANDLER v. DVA

For the purposes of this chapter, a person shall be
considered to be permanently and totally disabled
if such person is any of the following:
(1) A patient in a nursing home for long-term care
because of disability.
(2) Disabled, as determined by the Commissioner
of Social Security for purposes of any benefits ad-
ministered by the Commissioner.
(3) Unemployable as a result of disability rea-
sonably certain to continue throughout the life of
the person.
(4) Suffering from--
(A) any disability which is sufficient to render it
impossible for the average person to follow a sub-
stantially gainful occupation, but only if it is rea-
sonably certain that such disability will continue
throughout the life of the person; or
(B) any disease or disorder determined by the Sec-
retary to be of such a nature or extent as to justify
a determination that persons suffering therefrom
are permanently and totally disabled.
38 U.S.C. § 1502(a) (emphasis added).
The subsections of 1521 prescribe different pension
rates based on a veteran’s circumstances. Two pension
rates of section 1521 are relevant to the present appeal:
(b) If the veteran is unmarried . . . and there is no
child of the veteran in the custody of the veteran
or to whose support the veteran is reasonably con-
tributing, and unless the veteran is entitled to
pension at the rate provided by subsection (d)(1)
or (e) of this section, pension shall be paid to the
CHANDLER v. DVA 8

veteran at the annual rate of $3,550, reduced by
the amount of the veteran's annual income.
***
(e) If the veteran has a disability rated as perma-
nent and total and (1) has additional disability or
disabilities independently ratable as 60 per cen-
tum or more, or (2) by reason of a disability or
disabilities, is permanently housebound but does
not qualify for pension at the aid and attendance
rate provided by subsection (d) of this section, the
annual rate of pension payable to the veteran un-
der subsection (b) of this section shall be $4,340 . .
..
38 U.S.C. § 1521(b), (e) (2001) (emphasis added). Section
1521(b) provides a basic pension rate for wartime veter-
ans and section 1521(e) provides severely disabled war-
time veterans a special monthly pension under a special
monthly rate. Section 1521(e)’s requirement of “a disabil-
ity rated as permanent and total” is defined by 38 C.F.R.
§ 3.351(d) as “a single permanent disability rated 100
percent disabling.” In contrast, being “permanently and
totally disabled” under section 1521(a)’s eligibility re-
quirements, is defined as satisfying any one of four crite-
ria found in 38 U.S.C. § 1502(a), as recited above.
Section 1513 was promulgated after section 1521 and
provides wartime veterans who are sixty-five years of age
or older with section 1521 pension benefits. Section 1513
states, in pertinent part:
(a) The Secretary shall pay to each veteran of a
period of war who is 65 years of age or older and
who meets the service requirements of section
1521 of this title . . . pension at the rates pre-
scribed by section 1521 of this title and under the
9 CHANDLER v. DVA

conditions (other than the permanent and total
disability requirement) applicable to pension paid
under that section.
(b) If a veteran is eligible for pension under both
this section and section 1521 of this title, pension
shall be paid to the veteran only under section
1521 of this title.
(Emphasis added). Of particular importance, subsections
(a) and (e) of section 1521 include the phrases “perma-
nently and totally disabled” and “disability rated as
permanent and total,” respectively, but, section 1513
includes only the phrase “permanent and total disability”
without expressly stating which requirement of section
1521 it excludes.
At the outset, this court emphasizes the importance of
the statutory language. See, e.g., American Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982); McEntee v. Merit Sys.
Prot. Bd., 404 F.3d 1320, 1328 (Fed. Cir. 2005). In this
case, the language of section 1513(a) carries great weight,
but even more important is its context in relation to
section 1521. The parenthetical exclusion within section
1513(a) (i.e., “other than the permanent and total disabil-
ity requirement”) closely parallels the language of section
1521(a), which requires a veteran to be “permanently and
totally disabled.” Section 1521(a)’s “permanently and
totally disabled” requirement serves as a threshold quali-
fication to receive various pension rates under that sec-
tion. Moreover, it applies to all the subsections of section
1521. This “permanently and totally disabled” require-
ment receives a broad definition in a list of flexible crite-
ria set forth in section 1502(a). The parenthetical
exclusion, however, and section 1521(a)’s “permanently
and totally disabled” requirement are not identical.
CHANDLER v. DVA 10

The parenthetical exclusion is also not identical to
section 1521(e), which requires that a veteran have “a
disability rated as permanent and total” to qualify for the
special monthly pension rate. “[D]isability rated as
permanent and total” is defined by 38 C.F.R. § 3.351(d) as
“a single permanent disability rated 100 percent dis-
abling.” Section 1521(e) represents a separate require-
ment beyond those of section 1521(a).
This court does not read section 1513(a) to waive the
requirements of both § 1521 subsections. The context and
features of the statutory language suggest that the paren-
thetical in § 1513(a) does not waive the two completely
different requirements of § 1521. Specifically, the paren-
thetical exclusion in § 1513(a) uses the definite article
“the,” which indicates that the exclusion refers to a single
§ 1521 requirement. See Warner-Lambert Corp. v. Apotex
Corp., 316 F.3d 1348, 1356 (Fed. Cir. 2003). Also, while
not dispositive by itself, when taken in context with the
statute as a whole, the use of the singular term “require-
ment” in the parenthetical exclusion indicates that the
Act only contemplates excluding one of the section 1521
requirements.
Section 1521 contains two different permanent and
total disability requirements that have two different
meanings. Section 1513 was enacted after 38 C.F.R.
§ 3.351, which made clear the two different requirements
of § 1521. Moreover, section 1521(e) states its require-
ment in different terms, indicating that the subsection (e)
requirement is separate from the “permanently and
totally disabled” requirement in subsection (a). These
distinctions in contextual placement and language pre-
vent this court from conflating the two definitions in one.
This court also declines to render one of the phrases
meaningless. See TRW Inc. v. Andrew, 534 U.S. 19, 31
(2001) (stating that no clause should be superfluous);
11 CHANDLER v. DVA

Bailey v. United States, 516 U.S. 137, 146 (1995) (“We
assume that Congress used two terms because it intended
each term to have a particular, nonsuperfluous mean-
ing.”). In direct terms, the statute dictates that a perma-
nently and totally disabled veteran for one purpose may
not have a disability rated as permanent and total for
another purpose. See Chandler, 24 Vet. App. at 34
(Kasold, C.J., dissenting).
This court concludes § 1513(a) only eliminates the
permanent and total disability requirement in § 1521(a),
which applies to all § 1521 subsections. The language of
section 1521 is structured so that subsection (a) is a
threshold requirement and the other subsections recite
additional requirements for a veteran to qualify for differ-
ent pension rates. As such, § 1521’s language and struc-
ture, when viewed in light of the statute’s purpose and
meaning, suggest that the parenthetical exclusion in
section 1513(a) refers only to the threshold requirement
found in section 1521(a) for pension benefits under § 1521
and not to the additional requirements imposed by
§ 1521(e).
Based on the statutory language and structure, this
court therefore rejects and overrules the Veterans Court’s
Hartness opinion. Otherwise, Hartness introduces the
possibility of the absurd result indentified by the Veter-
ans Court wherein similarly situated veterans are treated
differently under the pension provisions depending on
when they first started receiving a pension. 24 Vet. App.
at 24. Veterans applying for special monthly pension
benefits under section 1521(e) should be on equal footing
regardless of when they apply for a pension, i.e., whether
the veteran applies before or after turning sixty-five years
old. Thus, section 1513(b) shows that Hartness was
incorrectly decided. This court’s statutory construction
CHANDLER v. DVA 12

and rejection of Hartness avoids this potential for absurd
results.
IV.
In sum, this court overturns the Veterans Court’s de-
cision in Hartness. Further, the plain language of sec-
tions 1513 and 1521 indicates that the parenthetical
exclusion of section 1513(a) applies to only the threshold
“permanently and totally disabled” requirement found in
section 1521(a). Accordingly, this court reverses and
remands.
REVERSE AND REMAND