Chandler v. Shinseki

• Decision Date: 11 April 2012
• Docket Number: No. 2011–7030.,2011–7030.
• Citation: 676 F.3d 1045
• Parties: Howard E. CHANDLER, Claimant–Appellee, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

676 F.3d 1045

Howard E. CHANDLER, Claimant–Appellee,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellant.

No. 2011–7030.

United States Court of Appeals, Federal Circuit.

April 11, 2012.

Paige M. Willan, Chadbourne & Parke, LLP, of New York, NY, 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 Department of Justice, of Washington, DC, argued for respondent-appellant. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, 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 Washington, 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”) appeals the decision of the U.S. Court of Appeals for Veterans 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 interpretation of 38 U.S.C. § 1513(a) (2006) in Hartness v. Nicholson, 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 disabilities that render him permanently and totally disabled. In 1992, at the age of fifty-seven, Chandler began receiving pension benefits under 38 U.S.C. § 1521(a) for non-service connected disabilities. Chandler has a combined 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 disability reasonably certain to continue throughout the life of the person.”). He received a pension at the rate prescribed 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 decision 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 Veterans Court. Initially, the Veterans Court heard oral arguments before a three-member panel, but sua sponte issued an en banc decision. The Veterans Court addressed 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 reconsidered 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 decision ... on a rule of law or of any statute or regulation ... 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 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, authority, 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 statutory interpretations of the Veterans Court without deference. 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 application of law to the facts. 38 U.S.C. § 7292(d)(2) (2010).

At the outset, this court detects no waiver of a challenge to Hartness in this case. This court has the authority 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 statutory 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 permanent 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 Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (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 meets the service requirements of § 1521. Id. The Veterans 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 disability.” 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 disabilities 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 period of war who meets the service requirements of this section ... and who is permanently and totally disabled from non-service connected disability 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.

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 administered by the Commissioner.

(3) Unemployable as a result of disability reasonably 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 substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or

(B) any disease or...