Skinner v. Brown

• Decision Date: 22 June 1994
• Docket Number: No. 93-7071,93-7071
• Citation: 27 F.3d 1571
• Parties: Suzanne V. SKINNER, Claimant-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1571

27 F.3d 1571

Suzanne V. SKINNER, Claimant-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.

No. 93-7071.

United States Court of Appeals Federal Circuit.

June 22, 1994.

Rehearing Denied; Suggestion for Rehearing In Banc

Declined Sept. 29, 1994.

Stephanie Forester, Nat. Veterans Legal Services Project, of Washington, DC, argued for claimant-appellee. With her on the brief were Gershon M. Ratner, Barton F. Stichman and Ruth E. Eisenberg.

Elizabeth A. Rinaldo, Atty., Commercial Litigation Branch, Dept. of Justice, of Washington, DC, argued for respondent-appellant. With her on the brief were Frank W. Hunger Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief were Richard J. Hipolit, Deputy Asst. Gen. Counsel and Harriett T. Heywood, Atty., Dept. of Veterans Affairs, Washington, DC, of counsel.

Before ARCHER, Chief Judge, ^* MAYER, and PLAGER, Circuit Judges.

MAYER, Circuit Judge.

The Secretary of Veterans Affairs appeals the judgment of the United States Court of Veterans Appeals, Skinner v. Brown, 4 Vet.App. 141 (1993), reversing the denial by the Board of Veterans Appeals of Suzanne V. Skinner's claim for benefits under the Restored Entitlement Program for Survivors. We affirm.

Background

Skinner is the daughter of James Skinner, Jr., a Vietnam veteran who died in December 1987 as a result of a service-connected heart condition. At the time of her father's death, Skinner was eighteen years old and a full time student at the University of Alabama. More than one year later, she filed an application for benefits under the Restored Entitlement Program for Survivors, Pub.L. No. 97-377, Sec. 156, 96 Stat. 1920 (1982) (set out as amended at 42 U.S.C. Sec. 402 note (1988)) (REPS); the Department of Veterans Affairs awarded REPS benefits effective February 1989, the date of her application. Skinner filed a Notice of Disagreement, requesting that she receive benefits effective December 1987.

The Board of Veterans Appeals denied her claim, citing a VA regulation limiting retroactivity of REPS benefits to claims filed within eleven months of the date of the claimant's first eligibility. 38 C.F.R. Sec. 3.812(f)(2)-(3) (1992). ¹ The Court of Veterans Appeals reversed, relying on Cole v. Derwinski, 2 Vet.App. 400 (1992), on appeal sub nom. Cole v. Brown, No. 93-7003 (Fed.Cir. Feb. 7, 1994), in which it struck down subparagraphs (2) and (3) of 38 C.F.R. Sec. 3.812(f) as contrary to the plain meaning of the REPS law. The court determined that since Skinner met all of the statutory requirements for REPS entitlement, she deserved benefits retroactive to December 1987, the month in which she first became eligible. The Secretary now appeals.

Discussion

The sole question is whether those portions of 38 C.F.R. Sec. 3.812(f) that establish a time-specific filing requirement for entitlement to REPS benefits ² overstep VA authority under the relevant statute, Pub.L. No. 97-377, Sec. 156, 96 Stat.1920. ³ The answer depends on our construction of the statute, a task we perform de novo. 38 U.S.C. Sec. 7292(d)(1) (Supp. IV 1992); Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991).

I.

We start with the language of the REPS statute, for "[i]f the intent of Congress is clear, that is the end of the matter...." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). The statute provides for monthly payments to certain survivors of military personnel who die during service or as a result of service connected injury or disease. Under REPS, the VA "shall pay each month" benefits to each person

(A) who is the child of a member or former member of the Armed Forces described in subsection (c); ⁴

(B) who has attained eighteen years of age but not twenty-two years of age and is not under a disability as defined in section 223(d) of the Social Security Act (42 U.S.C. 423(d));

(C) who is a full-time student at a postsecondary school, college, or university that is an educational institution (as such terms were defined in section 202(d)(7)(A) and (C) of the Social Security Act as in effect before the Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35; 95 Stat. 841)); and

(D) who is not entitled for such month to a child's insurance benefit under section 202(d) of the Social Security Act (42 U.S.C. 402(d)) or is entitled for such month to such benefit only by reason of section 2210(c) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 842).

Pub.L. No. 97-377, Sec. 156(b)(1), 96 Stat. 1920. The amount of benefits payable each month under REPS is determined by subsection (2): the child is to receive

the amount that the person concerned would have been entitled to receive for such month as a child's insurance benefit under section 202(d) of the Social Security Act (as in effect before the amendments made by section 2210(a) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 841)), disregarding any adjustments made under section 215(i) of the Social Security Act after August 1981, but reduced for any month by any amount payable to such person for such month under section 2210(c) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 842).

Pub.L. No. 97-377, Sec. 156(b)(2), 96 Stat. 1921. Section 202(d) of the Social Security Act thus furnishes the method for calculating REPS benefits: the amount of the "child's insurance benefit for each month shall, if [the parent] has died in or prior to such month, be equal to three-fourths of the [parent's] primary insurance amount...." 42 U.S.C. Sec. 402(d)(2) (1988). ⁵

Nowhere does the REPS statute limit the amount of benefits an applicant may receive because of a delay in filing. Instead, it directs that the Secretary "shall pay each month" REPS benefits to any person who meets the requirements set out in section 156(b)(1). The language is mandatory, leaving no room for the VA to impose additional restrictions on entitlement. Under REPS, the agency must pay benefits for each month that the recipient meets the statutory requirements expressly set out.

The Secretary argues that the statutory delegation of power to implement REPS through necessary regulations includes the authority to impose time limits on filing applications for REPS benefits. He finds support for the VA regulation to this effect in the statute's provision that a child is to receive only those benefits that she would be entitled to receive under the Social Security Act, reasoning that Congress thus intended to incorporate the limitations of that act into REPS. The Secretary points specifically to section 202(j) of the Social Security Act, which provides for child's insurance benefits retroactive to six months prior to the application's filing date. 42 U.S.C. Sec. 402(j)(1)(B). He maintains that incorporation of section 202(j) justifies the VA's eleven month rule as a valid implementation of the REPS statute.

This position disregards the full import of the language in REPS section 156(b)(2) that benefits are payable each month "in the amount that the person concerned would have been entitled to receive for such month as a child's insurance benefit under section 202(d) of the Social Security Act." The statute does not mention section 202(j) of the Social Security Act; nor does section 202(d), which it expressly incorporates. Far from suggesting the broad incorporation of the terms and limitations of the Social Security Act, the REPS language clearly contemplates reference to a particular section of the Social Security Act for the limited purpose of calculating the amount of REPS payments.

The express reference to 42 U.S.C. Sec. 402(d) shows that Congress well knew how to incorporate the provisions of the Social Security Act into REPS. Indeed, Congress specifically referred to three different sections of the Social Security Act in section 156(b). If it had similarly intended to incorporate section 202(j), we presume it would have done so expressly. Cf. Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 13 F.3d 398, 401 (Fed.Cir.1994) ("It is well established that where Congress has included specific language in one section of a statute but has omitted it from another, related section of the same Act, it is generally presumed that Congress intended the omission.").

The Secretary maintains that since REPS benefits are paid in accordance with section 202(d) of the Social Security Act, the time specific filing limitation on claims filed under that act should apply to REPS as well. But Skinner applied for benefits under REPS, not under the Social Security Act. While the amount of benefits to which she is entitled is determined by reference to 42 U.S.C. Sec. 402(d), her entitlement is governed by REPS--she must be (1) the child of a deceased member or former member of the Armed Forces; (2) between eighteen and twenty-one years old; (3) a full time postsecondary school student; and (4) not independently entitled to benefits under 42 U.S.C. Sec. 402(d). That is all that REPS requires.

The statute imposes no time restrictions on entitlement; it mandates payment of benefits for each month a covered survivor meets the statutory requirements. The VA's regulations to the contrary conflict with the statute's plain meaning.

II.

Because the plain meaning of the REPS statute shows that Congress did not intend to condition REPS benefits on time specific filing requirements, we need not consider the statute's legislative history. Darby v. Cisneros, 509 U.S. ----, ----, 113 S.Ct. 2539, 2545, 125 L.Ed.2d 113 (1993). Even if we choose to look to that history, however, "only the most extraordinary showing of contrary intentions" would lead us to disregard the plain meaning of the statute. Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984). The Secretary has made no such showing here.

REPS was...