Buffington v. McDonough

• Decision Date: 06 August 2021
• Docket Number: 2020-1479
• Citation: 7 F.4th 1361
• Parties: Thomas H. BUFFINGTON, Claimant-Appellant v. Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

7 F.4th 1361

Thomas H. BUFFINGTON, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2020-1479

United States Court of Appeals, Federal Circuit.

Decided: August 6, 2021

Doris Johnson Hines, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for claimant-appellant. Also represented by Andrea Grace Klock Mills; Barton F. Stichman, National Veterans Legal Services Program, Washington, DC.

Shari A. Rose, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Jeffrey B. Clark, Martin F. Hockey, Jr., Robert Edward Kirschman, Jr. ; Brian D. Griffin, Samantha Ann Syverson, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Richard Abbott Samp, New Civil Liberties Alliance, Washington, DC, for amicus curiae New Civil Liberties Alliance. Also represented by Aditya Dynar.

Before Moore, Chief Judge^* , Lourie and O'Malley, Circuit Judges.

Dissenting opinion filed by Circuit Judge O'Malley.

Moore, Chief Judge.

Thomas H. Buffington appeals a final decision of the United States Court of Appeals for Veterans Claims. Buffington v. Wilkie , 31 Vet. App. 293 (2019) ( Veterans Court Op. ). Under 38 C.F.R. § 3.654(b)(2), the Veterans Court denied Mr. Buffington an earlier effective date for recommencement of his disability benefits after periods in which he received active service pay. Id. at 296. Mr. Buffington contends § 3.654(b)(2) conflicts with and is an unreasonable interpretation of 38 U.S.C. § 5304(c). Because we hold § 3.654(b)(2) reasonably fills a statutory gap, we affirm.

BACKGROUND

Mr. Buffington served on active duty in the United States Air Force from September 1992 until May 2000. After leaving active duty service, Mr. Buffington sought disability benefits. The Department of Veterans Affairs (VA) found that Mr. Buffington suffered from service-connected tinnitus, rated his disability at ten percent, and awarded him disability compensation. In 2003, Mr. Buffington was recalled to active duty in the Air National Guard. He informed the VA of his return to active service, and the VA discontinued his disability compensation. See 38 U.S.C. §§ 5112(b)(3), 5304(c). In 2004, Mr. Buffington completed his term of active service. Later that year, he was again recalled to active duty, serving until July 2005. It was not until January 2009, however, that Mr. Buffington sought to recommence his disability benefits. The VA determined Mr. Buffington was entitled to compensation effective on February 1, 2008—one year before he sought recommencement. See 38 C.F.R. § 3.654(b)(2) (setting effective date for recommencement of compensation, at the earliest, one year before filing).

Mr. Buffington filed a Notice of Disagreement, challenging the VA's effective-date determination. The VA Regional Office issued a Statement of the Case rejecting his challenge and providing further reasoning for the February 1, 2008 effective date. Mr. Buffington then appealed to the Board of Veterans Appeals, which affirmed the VA's decision. He next appealed to the Veterans Court. That court held that § 3.654(b)(2) was a valid exercise of the Secretary of Veterans Affairs rulemaking authority and was not inconsistent with 38 U.S.C. § 5304(c). See Veterans Court Op. , 31 Vet. App. at 300–04. Mr. Buffington appeals. We have jurisdiction under 38 U.S.C. § 7292(a).

DISCUSSION

Title 38 codifies a complex statutory scheme aimed at providing benefits to veterans. For example, it provides veterans with a general entitlement to compensation "[f]or disabilit[ies] resulting from personal injur[ies] suffered ... in [the] line of duty" during a period of war, § 1110, or during peacetime, § 1131. As a shorthand, Congress refers to those disabilities as service-connected disabilities. See 38 U.S.C. ch. 11 ("Compensation for Service-Connected Disability or Death"). And it refers to benefits paid as a result of service-connected disabilities as compensation. Id. § 101(13). Title 38 also provides pensions for veterans who served in a period of war and for veterans who appear on the Army, Navy, Air Force, or Coast Guard Medal of Honor Roll. See id. §§ 1511–25.

To receive disability benefits, a veteran must apply. Id. § 5101(a)(1)(A) ("[A] specific claim in the form prescribed by the Secretary ... must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary."). Based on that application, the VA must determine whether the veteran has a general entitlement to disability benefits—for example, because he has a service-connected disability. If a veteran has a service-connected disability, the VA must assign him a disability rating, which corresponds to the amount of compensation paid. See, e.g. , id. § 1134 (setting rates of peacetime disability compensation by reference to § 1114, which sets those rates for wartime disability). It must also set the effective date for the award of benefits. Id. § 5110. Occasionally, under the statutory framework, benefits must be reduced or discontinued. When a veteran returns to active service, for example, he cannot receive both active service pay and disability compensation. Id. § 5304(c). When a reduction or discontinuance is in order, § 5112 dictates how the VA must determine the effective date for that reduction or discontinuance.

This appeal requires us to interpret VA-administered statutes to determine the effective date for recommencing (as opposed to awarding or discontinuing) service-connected disability benefits once a veteran leaves active service.¹ The Secretary of Veterans Affairs has answered that interpretive question, promulgating 38 C.F.R. § 3.654(b)(2) through notice-and-comment rulemaking. In such circumstances, we apply the two-step framework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).² Step one asks "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter," and we "must give effect to the unambiguously expressed intent of Congress." Id. at 842–43, 104 S.Ct. 2778. If, however, "the statute is silent or ambiguous with respect to the specific issue," we proceed to step two of the Chevron framework, at which we determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. We must defer in the face of statutory silence because, "as a general rule, agencies have authority to fill gaps where the statutes are silent." Nat'l Cable & Telecom. Ass'n, Inc. v. Gulf Power Co. , 534 U.S. 327, 339, 122 S.Ct. 782, 151 L.Ed.2d 794 (2002) (citing Chevron , 467 U.S. at 843–44, 104 S.Ct. 2778 ); see also Canadian Solar, Inc. v. United States , 918 F.3d 909, 917 (Fed. Cir. 2019).

I

At step one, we hold that Congress left a gap in the statutory scheme.

Section 5304(c) bars duplicative compensation when a veteran receives active service pay:

Pension, compensation, or retirement pay on account of any person's own service shall not be paid to such person for any period for which such person receives active service pay.

38 U.S.C. § 5304(c). Thus, a veteran cannot receive both service-connected disability payments and active service pay. And Congress set the effective date (start date) for discontinuing disability benefits based on active service:

The effective date of a reduction or discontinuance of compensation ... by reason of receipt of active service pay or retirement pay shall be the day before the date such pay began.

38 U.S.C. § 5112(b)(3). But Congress did not establish when or under what conditions compensation recommences once a disabled veteran leaves active service. Nowhere in § 5304(c) ’s plain terms or in the broader statutory structure did Congress speak directly to that issue.

The "any period" phrase in § 5304(c) does not set the effective date for recommencing disability benefits. Of course, the word period refers to a length of time: here, the time during which a veteran is receiving active service pay. And that period has a beginning date—when active service compensation starts—and an end date—when active service compensation ends. But § 5304(c) does not say compensation must cease only for that period. Congress was silent regarding whether other conditions, such as timely filing of an application, could justify a later effective date for any recommencement of compensation. Congress neither required nor prohibited consideration of such conditions. And we must not read into § 5304(c) words that Congress did not enact—like reading "any period" as "only any period." See Bates v. United States , 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997) ("[W]e ordinarily resist reading words or elements into a statute that do not appear on its face.").

Mr. Buffington argues, relying on statutory context, that his interpretation does not read "only" (or any other language) into § 5304(c). He claims Title 38 obligates the VA to pay compensation for service-connected disabilities, see 38 U.S.C. § 1131 ;³ sets the effective date for those awards, see id. § 5110; and provides a limited exception for when payment is barred based on active service pay, see id. § 5304(c). Thus, to Mr. Buffington, "compensation runs parallel to the period of service: stopping on re-entry to active military service and restarting at discharge from active military service." Appellant's Reply Br. at 14–15 (internal quotation marks omitted).

Mr. Buffington's concessions throughout this case, however, undermine that position. In his opening brief, Mr. Buffington agreed the VA can "require that a veteran notify it that the veteran is no longer receiving active duty pay before benefits can be paid ." Appellant's Br. at 32 (emphasis in original). That is, the VA can...