Terry v. Principi, 03-7107.

• Decision Date: 10 May 2004
• Docket Number: No. 03-7107.,03-7107.
• Citation: 367 F.3d 1291
• Parties: Carol L. TERRY, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

367 F.3d 1291

Carol L. TERRY, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 03-7107.

United States Court of Appeals, Federal Circuit.

DECIDED: May 10, 2004.

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

Nancy M. Kim, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and James M. Kinsella, Deputy Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel were Domenique Kirchner, Principal Attorney; and Kathleen A. Kohl, Attorney, United States Department of Justice, of Washington, DC.

Before RADER, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. Opinion concurring in the result filed by Circuit Judge DYK.

PROST, Circuit Judge.

The appellant, Carol Terry, appeals the Court of Appeals for Veterans Claims' interpretation of the two-year limitation found in 38 U.S.C. § 5121(a) (2000).¹ The Court of Appeals for Veterans Claims interpreted the statute as limiting survivors of veterans to recovery only of those benefits that accrued in the two years immediately preceding a veteran's death. Terry v. Principi, No. 01-1510, 2003 WL 359970 (Vet.App. Feb. 13, 2003). Because we hold that the clear and unambiguous terms of § 5121(a) do not so limit a survivor's potential recovery, we reverse the decision of the Court of Appeals for Veterans Claims and remand this case for further proceedings consistent with this opinion.

BACKGROUND

The facts of this case are not disputed. The appellant, Carol Terry, is the spouse of deceased Army veteran Vander Terry ("Mr. Terry"). Mr. Terry served in the Army between 1956 and 1978. In May of 1986, he was awarded a total-disability rating based on individual unemployability ("TDIU") from the Veterans Administration ("VA"). That rating was made retroactive to April 14, 1986. At the time of the original TDIU determination, Mr. Terry did not appeal the VA's determination of the effective retroactive date. In June of 1995, he challenged the VA's May 1986 decision for the first time and alleged clear-and-unmistakable error ("CUE") in determining the effective date of April 14, 1986. Mr. Terry argued then that April 1985 was the correct effective date. In July of 1995, the VA rejected Mr. Terry's claims. Mr. Terry timely appealed to the Board of Veterans' Appeals. He died, however, in August 1997, before the Board of Veterans' Appeals could decide his appeal.

In September of 1997, Carol Terry filed an application with the VA for recovery of Mr. Terry's unpaid accrued benefits, alleging that her husband's CUE theory granted her an entitlement to the one year of unpaid benefits dating back to 1985 that Mr. Terry claimed he was owed. In May of 1998, the VA rejected Carol Terry's application. Three years later, in May of 2001, the Board of Veterans' Appeals denied her appeal of that rejection, holding that 38 U.S.C. § 5121(a) only permitted payment of benefits accrued in the two-year period immediately prior to death. Finally, in February of 2003, the Court of Appeals for Veterans Claims affirmed the Board of Veterans' Appeals' decision.

The Court of Appeals for Veterans Claims relied entirely on its previous opinions in arriving at its construction of 38 U.S.C. § 5121(a). Terry, 2003 WL 359970, at *1. The court asserted that Marlow v. West, 12 Vet.App. 548, 551 (1999), conclusively settled the issue in this case by limiting a survivor's recovery of accrued benefits to benefits accrued in the two-year period immediately preceding the veteran's death. The court further supported its holding with language from Bonny v. Principi, 16 Vet.App. 504, 506 (2002), which held that "accrued benefits are not payable for any period before two years immediately preceding a veteran's death." Terry, 2003 WL 359970, at *1.

Carol Terry has appealed the Court of Appeals for Veterans Claims' decision on the grounds that its construction of 38 U.S.C. § 5121(a) was erroneous.

DISCUSSION

This court has jurisdiction over this appeal under 38 U.S.C. § 7292(c). The review of the Court of Appeals for Veterans Claims' statutory interpretation presents a question of law reviewed de novo and without deference. Santoro v. Principi, 274 F.3d 1366, 1369 (Fed.Cir.2001).

I.

Before this court, the appellant contends that the language of § 5121(a) is unambiguous and does not limit a survivor's receipt of accrued benefits to those benefits accrued in the two years prior to a veteran's death. Furthermore, the appellant maintains that the legislative history supports her interpretation.

The government responds by arguing that this court is bound by language in Haines v. West, 154 F.3d 1298, 1300 (Fed.Cir.1998), and Richard v. West, 161 F.3d 719, 721 (Fed.Cir.1998), stating that payments for benefits under § 5121(a) are limited to those benefits accrued in the two years immediately prior to the veteran's death. In the alternative, the government contends that § 5121(a) is ambiguous and that legislative history and a contextual reading support the interpretation of the Court of Appeals for Veterans Claims. Finally, the government argues, if the intent of Congress is not clear from the language of the statute or the legislative history, this court should, in performing a Chevron analysis, defer to the VA's "reasonable interpretation" of § 5121(a).

II.

In resolving questions of statutory interpretation, our analysis begins with the language of the statute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908, (2002); Mudge v. United States, 308 F.3d 1220, 1227 (Fed.Cir.2002). Where the language of the statute is clear and unambiguous, our analysis finds its end there as well. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999); Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); Intl Bus. Machs. Corp. v. U.S., 201 F.3d 1367 (Fed.Cir.2000).

The relevant language of 38 U.S.C. 5121(a) states:

[P]eriodic monetary benefits ... under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (hereinafter ... referred to as accrued benefits) and due and unpaid for a period not to exceed two years, shall, upon the death of such individual be paid as follows:

38 U.S.C. § 5121(a) (emphasis added).

In this case, the language of the statute is clear and unambiguous. By its own terms, § 5121(a) limits the total accrued benefit payments that a survivor may receive to those accrued benefits due and unpaid for up to a two-year period. The statute does not, contrary to the government's assertions, limit the payments recoverable to those that were accrued in the two years immediately preceding the veteran's death.

By its structure, § 5121(a) separates "periodic monetary benefits" (i.e., those based on "existing ratings or decisions") from "accrued benefits" (i.e., "those based on evidence in the file at the date of death"). The comma between the two clauses discussing each form of benefit effects this separation. See Bonny, 16 Vet.App. at 507. From the structure of the statute, it is clear that both such benefits are to be paid "upon the death" of the veteran. Therefore the limitation provided by the words "upon the death" in the statute merely restricts the time frame in which the government must pay "periodic monetary benefits" or "accrued benefits." Thus, the phrase "upon death" does not create any ambiguity in the statute because it is not tied to the two-year limitation on accrued benefits.

Furthermore, the phrasing of the accrued benefits clause aids this court in determining the plain and unambiguous meaning of § 5121(a). Under the terms of the statute, a survivor's recovery of a veteran's accrued benefits is limited to those benefits accrued "for a period not to exceed two years," or in other words, for a maximum two year period of accrued benefits regardless of when those benefits were actually accrued. It is clear that § 5121(a) does not, on its face, limit a survivor's recovery of accrued benefits to those benefits accrued two years prior to a veteran's death.²

III.

The government's additional arguments in opposition to this court's construction of § 5121(a) are similarly unconvincing.

First, the government argues that previous decisions by this court are controlling on this issue. That assertion is plainly incorrect. This court's opinions in Haines and Richard do not compel this court finding for the government on this issue. The three total sentences in Haines and Richard in which this court discussed the two-year limitation of § 5121(a) are clearly dicta. See Black's Law Dictionary (7th ed. 1999) (defining "gratis dictum" and "judicial dictum"). In neither case was there any discussion of the language of § 5121(a). And in neither case was the passing language referring to § 5121(a) essential to the court's holding. See Richard, 161 F.3d at 722; Haines, 154 F.3d at 1300.

Second, the government asserts that the legislative history of the Veterans' Benefits Act of 1957 supports the view that Congress intended to limit a survivor's recovery to the accrued benefits earned in the two-year period immediately preceding the death of the veteran. Given the statute's clear and unambiguous language, this court need not resort to the legislative history in determining the plain meaning of § 5121(a). Even examining the legislative history, however, we find that it supports the appellant's construction of the statute.

Prior to the passage of the...