Sears v. Principi, 03-7005.

• Decision Date: 20 November 2003
• Docket Number: No. 03-7005.,03-7005.
• Citation: 349 F.3d 1326
• Parties: Marian SEARS, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

349 F.3d 1326

Marian SEARS, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 03-7005.

United States Court of Appeals, Federal Circuit.

DECIDED: November 20, 2003.

Kenneth M. Carpenter, Carpenter Chartered, of Topeka, KS, argued for claimant-appellant.

Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief was David M. Cohen, Director.

Before MICHEL, CLEVENGER, and LINN, Circuit Judges.

Opinion for the court filed by Circuit Judge MICHEL. Opinion concurring in the judgment filed by Circuit Judge CLEVENGER.

MICHEL, Circuit Judge.

Appellant Sears appeals from the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the Board of Veterans' Appeals' ("BVA's") determination that the applicable Department of Veterans Affairs ("DVA") regulation set the earliest possible effective date for service-connection benefits granted for a reopened claim as the date on which a veteran requested reopening, and therefore denying Sears' request for setting the effective date as of the date of the original application for benefits. Because the Veterans Court correctly upheld the legality of the DVA regulation expressly so limiting the earliest effective date for reopened claims, we affirm.

Background

Under section 7105(c) of Title 38, a final decision by the DVA on a veteran's claim that is not appealed may not be reopened unless statutorily authorized. 38 U.S.C. § 7105(c) (2000). The statute provides only two grounds on which otherwise finally-decided claims may be reopened. The ground at issue in this appeal is the production of "new and material evidence." Id. § 5108. Section 5108 provides that, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."

If the evidence later presented by a veteran is deemed new and material and service connection is granted, the DVA must then determine the effective date for benefits. Section 5110(a) of Title 38, which governs the effective date for service-connection benefits, provides:

[T]he effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

Id. § 5110(a) (emphasis added). The DVA has issued a regulation which specifically provides that the effective date for an award following submission of new-and-material evidence is the "[d]ate of receipt of new claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(q)(1)(ii) (2003). Thus, the DVA regulation treats a reopened claim as a "new" claim. In effect, it interprets "application therefor" in the statute to mean the application to reopen, not the original application for service-connection benefits.

In the case at bar, the veteran, Virgil Lawton,¹ served in the U.S. Army from July 1968 to July 1971. Mr. Lawton was initially denied service connection for post-traumatic stress disorder in 1990. In October 1995, Mr. Lawton filed an application to reopen his prior claim for service connection on the ground of new and material evidence. Mr. Lawton was awarded service connection in August 1997, with an effective date of October 1995, the time when he filed his request to reopen. On appeal, the BVA denied an earlier effective date, finding that 38 U.S.C. § 5110(a) and the implementing regulation required that the earliest possible effective date of the service connection was the date of the application for reopening. The Veterans Court affirmed the decision of the BVA in August 2002, finding:

no support in the law for the appellant's position that the [c]ourt should read section 5110(a)'s mandate that the effective date for a reopened claim `shall not be earlier than the date of receipt of application therefor' as referring to the date of receipt of the original claim rather than the claim to reopen.

Sears v. Principi, 16 Vet.App. 244, 247 (2002) (emphasis in original). The Veterans Court also concluded that: (1) "Congress expressly specified that a claim reopened after final disallowance is distinct from the original claim that came before it," and (2) a "reopened claim [is] a `new claim' for purposes of the effective-date language of 38 C.F.R. § 3.400(q)(1)(ii)." Id. at 248.

On appeal to this court, appellant argues that the DVA regulation, section 3.400(q)(1)(ii), is inconsistent with sections 5108 and 5110 of Title 38, and is thus invalid. Further, to the extent this court finds that the plain language of sections 5108 and 5110 does not alone invalidate the regulation, the appellant argues that we must still invalidate the regulation because it is inconsistent with the pro-claimant policy permeating Title 38.

We have jurisdiction pursuant to 38 U.S.C. § 7292(a) and (c).

Discussion

I.

In determining the validity of agency regulations, the first inquiry is whether the applicable statute provides a clear statement of congressional intent on point. The Supreme Court has stated:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, as we have held, "[a]n agency that has been granted authority to promulgate regulations necessary to the administration of a program it oversees may fill in gaps in the statutory scheme left by Congress." Contreras v. United States, 215 F.3d 1267, 1274 (Fed.Cir.2000). Ambiguities in the veterans' statutes may also be resolved through agency regulation, "as long as the agency's action is reasonable and consistent in light of the statute and congressional intent." Disabled Am. Veterans v. Gober, 234 F.3d 682, 691 (Fed.Cir.2000) (citing Gilpin v. West, 155 F.3d 1353, 1355-56 (Fed.Cir.1998)).

Here, appellant argues that the DVA regulation in question conflicts with the language of sections 5108 and 5110. As noted above, section 5108 provides for the reopening of an otherwise final claim upon presentation of new and material evidence, and section 5110, that the earliest effective date for benefits is the date of "application therefor" for an original claim, a claim reopened after final adjudication, or a claim for increase. According to the appellant, the DVA regulation, which treats a claim reopened for new and material evidence as a new claim (such that the "application therefor" is the request to reopen) is inconsistent with the unambiguous language of sections 5108 and 5110, in that these sections clearly characterize reopened claims as old claims that have been revived.

The appellee agrees that the language of sections 5108 and 5110 is unambiguous, but disagrees as to its meaning. According to the appellee, the language of section 5110 clearly differentiates three types of claims (an original claim, a claim reopened after final adjudication, and a claim for increase), each of which has a separate and distinct application date. Thus, according to the appellee, an original claim and a reopened claim are separate claims under section 5110(a), and each has a separate date of "application therefor."

To the extent the parties seek to characterize sections 5108 and 5110(a) as unambiguously calling for one interpretation over another, we disagree. Rather, the language of these two sections is subject to multiple interpretations. We thus look to the legislative history for guidance as to the congressional intent behind these provisions.

The parties agree that prior to 1962, the effective date of a reopened claim was the date of the request for reopening. This rule was based on two statutes. First, 38 U.S.C. § 3010 provided that "[u]nless specifically provided otherwise in this chapter, the effective date of an award of compensation, dependency, and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." Second, 38 U.S.C. § 3004 stated that "[w]here a claim has been finally disallowed, a later claim on the same factual basis, if supported by new and material evidence, shall have the attributes of a new claim." Because a reopened claim had "the attributes of a new claim," the effective date for a reopened claim was the filing date of that claim, not the original claim.

In 1962, Congress repealed section 3004 and amended section 3010, now section 5110. Notably, Congress did not include the language stating that reopened claims have the "attributes of a new claim." The appellee asserts, however, that this language was no longer needed, because section 3010 (now section 5110) specifically defined three separate types of claims, i.e., "an original claim, a claim reopened after final adjudication, or a claim for increase."

The appellant, on the other hand, argues that a Senate Report on the 1962 amendments undercuts the appellee's reading:

Unless provided otherwise, the effective date of all...