Buffington v. Wilkie
| Decision Date | 12 July 2019 |
| Docket Number | 17-4382 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Thomas H. Buffington, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Argued April 10, 2019
On Appeal from the Board of Veterans' Appeals
Stacy A. Tromble, with whom Raymond J. Kim and Barton F. Stichman were on the brief, all of Washington, D.C., for the appellant.
Debra L. Bernal, with whom Catherine C. Mitrano, Acting General Counsel; Mary Ann Flynn, Chief Counsel; Joan E. Moriarty Deputy Chief Counsel; and Michael M. Epsten, Non-Attorney Practitioner, were on the brief, all of Washington, D.C., for the appellee.
Before GREENBERG, MEREDITH, and FALVEY, Judges.
The appellant, Thomas H. Buffington, through counsel appeals a July 20, 2017, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective date earlier than February 1, 2008, for the reinstatement of VA benefits. Record (R.) at 1-13. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to address whether the Secretary's regulation, 38 C.F.R. § 3.654(b)(2) which governs the effective date for the recommencement of VA benefits following a period of active duty, is inconsistent with 38 U.S.C. § 5304(c), which prohibits concurrent receipt of active service pay and pension, compensation, or retirement pay. For the reasons discussed below, the Court holds that § 3.654(b)(2) is a valid exercise of the Secretary's broad rulemaking authority, pursuant to 38 U.S.C. § 501, to issue regulations necessary to carry out the laws administered by VA and is not inconsistent with 38 U.S.C. § 5304(c). Accordingly, the Court will affirm the Board's decision.
The appellant served on active duty in the U.S. Air Force from September 1992 to May 2000, and in the Air National Guard from July 2003 to June 2004, from November 2004 to July 2005, in December 2009, and from February 2016 to May 2016. R. at 14-21. In March 2002, he was granted entitlement to VA disability compensation for tinnitus, rated 10% disabling. R. at 1261-64, 1272-78. The appellant submitted a VA Form 21-8951, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, in August 2003. R. at 1233. This form reflects that he elected to receive military pay and allowances for the performance of active and inactive duty in lieu of VA benefits and provides that the "waiver will remain in effect, while [he was] entitled to receive VA disability payments, unless [he] notif[ies] VA otherwise in writing." Id.
In October 2003, VA advised him that it was proposing to terminate his VA benefits, effective July 20, 2003, because his National Guard unit had been activated on July 21, 2003. R. at 1229. In response, the appellant executed and submitted VA Form 21-8951-2, in which he again elected to waive VA benefits in lieu of military pay. R. at 1224-25. In December 2003, VA informed him that it had stopped his benefits the day before he was recalled to active duty. R. at 1222-23. The letter further instructed: "When you have been released from active duty, please provide our office with a copy of your DD[-]214, so that we may re[]instate your benefits." R. at 1222.
Following two periods of active duty-July 2003 to June 2004, and November 2004 to July 2005-in January 2009, the appellant requested that his benefits be reinstated. R. at 1210. In August 2009, a VA regional office (RO) reinstated his VA disability compensation, effective February 1, 2008. R. at 1196-99. The RO informed him that, in December 2003, "[w]e . . . told you to provide us with copies of your DD Form 214[] upon your release from active duty so that we could re[]instate your benefits." R. at 1196. The RO then explained: R. at 1197.
The appellant filed a Notice of Disagreement (NOD), asserting that the RO's December 2003 letter "did not address the [1-]year requirement for informing . . . VA of [his] release from active duty," R. at 1193, and he perfected an appeal to the Board, R. at 1153-55, 1159-81. He also testified at a November 2015 Board hearing that, in 2003, VA did not clarify that there was a time line for when he needed to submit his DD-214s to reinstate benefits. R. at 643-44. He explained that, between 2003 and 2009, he had three different activations and "kind of forgot about it." R. at 643. He said: "I'm in the Guard and it was kind of like my full-time job." Id.
In the July 20, 2017, decision on appeal, the Board concluded, as a matter of law, that VA cannot resume payment of the appellant's benefits more than 1 year prior to the date of his claim for reinstatement, which was received on January 20, 2009. R. at 7-9 (citing 38 U.S.C. § 5304(c), 38 C.F.R. §§ 3.31, 3.654(b)(2) (2017)). Regarding the appellant's contention that VA did not provide notice as to the time to submit copies of his DD-214s, the Board found that the VA Form 21-8951, submitted by him in August 2003, and the RO's December 2003 letter "clearly informed [him] that the consequence of failing to notify VA of his cancelling his waiver of VA benefits would be the continued waiver of those benefits." R. at 9-10. Thus, applying § 3.654(b)(2) to the undisputed facts, the Board denied an effective date earlier than February 1, 2008, for the reinstatement of VA benefits. R. at 1-13. This appeal followed.
The appellant argues that the language of 38 U.S.C. § 5304(c) is clear-VA must "withhold or suspend a veteran's benefits only 'for any period for which such person receives active service pay.'" Appellant's Brief (Br.) at 6 (quoting 38 U.S.C. § 5304(c)). He asserts that § 3.654(b)(2) is inconsistent with the statute because section 5304(c) "does not predicate payment or reinstatement of benefits upon notice by the veteran." Id. at 10. He further asserts that reading section 5304(c) in the context of 38 U.S.C § 1110(a), which provides that VA "will pay" disability compensation benefits once service connection is established, demonstrates that "Congress has prohibited VA from withholding or suspending benefits due to a veteran's receipt of active pay during any period . . . section 5304(c) does not encompass." Id. at 9. He therefore maintains that the regulation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and seeks reversal of the Board's decision denying an effective date earlier than February 1, 2008. Id. at 10-11.
In the alternative, he argues that equitable tolling is warranted because "the Board treated [§] 3.654(b)(2) as a statute of limitations," and VA effectively misled him into believing that there was no deadline to notify VA that he had been released from active duty. Id. at 13. Also in the alternative, he argues that, because he has a property interest in VA benefits and he relied to his detriment on the allegedly misleading notice, VA violated his constitutional right to due process. Id. at 14-16.
The Secretary argues that VA promulgated § 3.654(b)(2) pursuant to his broad congressional authority under 38 U.S.C. § 501 to "'prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.'" Secretary's Br. at 6 (quoting 38 U.S.C. § 501). He asserts that section 5304(c) does not address the recommencement of payments; rather, "Congress unambiguously delegated the authority to create the procedural structure to prevent duplication of benefits to VA." Id. at 9. In that regard, he maintains that the regulation "effectively establishes 'the nature of proof and evidence and the method of taking and furnishing them' for purposes of resumption of benefits." Id. at 10 (quoting 38 U.S.C. § 501(a)). The Secretary further maintains that, when sections 5304 and 1110 are read together, a gap remains, and VA's regulation should be afforded deference. Secretary's Br. at 11-12 (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)).
In response to the appellant's argument for equitable tolling, the Secretary asserts that the doctrine is not applicable to § 3.654(b)(2) because the regulation is not a statute of limitations; there is no filing deadline to toll. Id. at 16-18. He also asserts that the Board did not "treat" the regulation as a statute of limitations and, in either event, the appellant fails to demonstrate that VA provided misleading notice. Id. at 18-20. The Secretary similarly maintains that the appellant's due process argument must fail because he has not demonstrated that VA provided misleading notice or that he relied to his detriment on the notice. Id. at 20-22. Finally, he avers in the alternative that, even assuming the notice was improper, the appellant is charged with knowledge of the regulatory requirements. Id. at 22-23 (citing Morris v. Derwinski, 1 Vet.App. 260, 265 (1991)).
In his reply brief, the appellant responds that the Secretary's argument would lead to an absurd result-that the Secretary could promulgate regulations pursuant to section 501, even though the "regulation conflicts with other statutes with which the Secretary is obligated to comply." Reply Br. at 2-3. He asserts that there is no gap to fill; rather ...
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