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