Opinion

Bo v. Robert L. Wilkie

Court: United States Court of Appeals for Veterans Claims
Filed: Aug 15, 2019
Status: Published
Cited by: 0 cases
Authority: More cited than 8.8%

"The starting point in interpreting a statute is its language."

How later courts described this case

"The starting point in interpreting a statute is its language."
"Congress is presumed to be aware of an administrative or judicial interpretation of a statute." (citing Lorillard v. Pons, 434 U.S. 575, 580 (1978))
"An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language."
recognizing that legislative purpose can serve as a useful tool in statutory interpretation

Written by the judges who cited it.

The opinion

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-4134

BO,1 APPELLANT,

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued May 2, 2018 Decided August 15, 2019)

Timothy L. McHugh, with whom Kevin S. Elliker and David J. DePippo, all of Richmond,

Virginia, for the appellant.

Lavinia A. Derr, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn,

Chief Counsel; and James B. Cowden, Deputy Chief Counsel, all of Washington, D.C., were on

the brief for the appellee.

Before SCHOELEN, BARTLEY, and ALLEN, Judges.

ALLEN, Judge, filed the opinion of the Court. BARTLEY, Judge, filed a dissenting

opinion.

ALLEN, Judge: Congress has been generous in providing a wide array of benefits to those

who served in the Armed Forces. An example of that generosity is support for veterans' educational

endeavors. This appeal calls on us to discuss two such education-related programs. In particular,

we address an important interplay between the Montgomery GI Bill education program (MGIB),

chapter 30 of title 38 of the United States Code, and the Post-9/11 GI Bill education program (Post-

9/11 GI Bill), chapter 33 of that title.

The appellant BO served the Nation honorably in the United States Army. BO had more

than one period of service in the Army, having been both an enlisted person as well as an officer.

As described in more detail below, BO's separate periods of service independently qualified him

to receive benefits under both the MGIB and the Post-9/11 GI Bill. At its core, this case is about

For reasons not relevant to the subject of this appeal, the record in this case has been sealed pursuant to

Rule 48(b) of the Court's Rules of Practice and Procedure, and the veteran is identified only as "BO."

whether he, and others like him with two separate periods of qualifying service, may obtain the

full benefits of both programs (subject to an overall cap).

In this appeal, which is timely and over which the Court has jurisdiction under 38 U.S.C.

§§ 7252(a) and 7266(a), the appellant specifically contests a July 14, 2016, Board of Veterans'

Appeals (Board) decision denying him entitlement to educational assistance benefits for more than

10 months and 16 days under the Post-9/11 GI Bill. This was the amount of unused benefits the

appellant had under the MGIB. The Board rejected the appellant's argument that he should be

entitled to the full amount of Post-9/11 GI Bill benefits because, BO contends, his entitlement

under that program was based on a period of qualifying service separate from the one that allowed

him to receive benefits under the MGIB. This matter was referred to a panel of the Court with oral

argument to address whether a veteran such as BO with more than one period of separately

qualifying service must relinquish or exhaust entitlement under the MGIB program before

receiving education benefits under the Post-9/11 GI Bill program. We hold that statutes require

neither relinquishment nor exhaustion. Rather, they allow such a veteran to receive entitlement

under both programs subject to a 36-month cap on utilization of each of the two separate programs

and a 48-month cap overall. The Court will accordingly reverse the Board's decision and remand

the matter for further proceedings consistent with this opinion.

I. STATUTORY FRAMEWORK

The Nation has a long history of providing educational benefits to veterans. In 1944,

Congress, faced with more than 16 million veterans returning from military service in World War

II and reentering civilian life, enacted the Servicemen's Readjustment Act of 1944, Pub. L. 78-

346, 58 Stat. 284, better known as the GI Bill. Record (R.) at 1245. This landmark legislation

provided veterans with education benefits to avoid high levels of unemployment, aid

servicemembers in readjusting to civilian life, and afford returning veterans an opportunity to

receive the education and training they could not pursue while serving in the military. Id. Since

the GI Bill's inception, Congress has established several iterations of education benefits for

subsequent generations of veterans. See Veterans' Readjustment Assistance Act of 1952, Pub. L.

No. 82-55, 66 Stat. 663 (Korean War GI Bill); Veterans' Readjustment Benefits Act of 1966, Pub.

L. No. 89-358, 80 Stat. 12 (Cold War GI Bill); Veterans' Education and Employment Assistance

Act of 1976, Pub. L. 94-502, 90 Stat. 2393 (codified at 38 U.S.C. §§ 3201 et seq.) (Post Vietnam

Era Veterans Educational Assistance Program).

In 1985, Congress, seeking a recruiting tool for an all-volunteer military force, established

two versions of the MGIB: one for active-duty service, 38 U.S.C. §§ 3001 et seq., and the other

for service in the selected reserve, 10 U.S.C. §§ 16131 et seq. Department of Defense

Authorization Act of 1985, Pub. L. No. 98-525, 98 Stat. 2492; see 38 U.S.C. § 3001 (MGIB

benefits serve to "to aid in the recruitment and retention of highly qualified personnel for both the

active and reserve components of the Armed Forces" and "to enhance our Nation's competitiveness

through the development of a more highly educated and productive work force"). The MGIB

provides education benefits to individuals who, among others, first entered on active duty after

June 30, 1985, and continued to serve on active duty or received a qualifying discharge or release.

38 U.S.C. § 3011(a). An individual must have served continuously on active duty for 2 to 3 years

depending on the obligated period of service. 38 U.S.C. § 3011(a)(1)(A)(i). An individual who

meets the basic eligibility requirements is entitled to 36 months of education benefits. 38 U.S.C.

§ 3013. MGIB education benefits consist of a fixed monthly sum that varies based on length of

service and school attendance. 38 U.S.C. § 3015; see MGIB Active Duty (chapter 30) Increased

Educational Benefit, https://www.benefits.va.gov/GIBILL/resources/benefits_resources/rates

/ch30/ch30rates100117.asp (effective Oct. 1, 2017) (for full-time school attendance and 3 years of

continuous active service, the monthly rate is $1,928; for less than 3 years of continuous active

service the monthly rate is $1,566).

In June 2008, Congress enacted the Post-9/11 Veterans Educational Assistance Act of

2008, which became effective on August 1, 2009. Pub. L. No. 110-252, tit. V, §§ 5001-03, 122

Stat. 2357 (2008) (codified at 38 U.S.C. §§ 3301 et seq.). The Post-9/11 GI Bill provides education

benefits to each individual who served on active duty after September 11, 2001, and continued to

serve on active duty or was discharged or released under specified conditions. 38 U.S.C. § 3311(a),

(b). An individual who "serve[d] an aggregate of at least" 1 of 7 periods described in the statute as

ranging from 90 days to 36 months is entitled to Post-9/11 education benefits. 38 U.S.C.

§ 3311(b).2 An individual who meets the basic eligibility requirements is entitled to 36 months of

education benefits. 38 U.S.C. § 3312(a). Post-9/11 education benefits, awarded per school term,

The amount of benefits an individual receives under the Post-9/11 GI Bill depends on the aggregate amount

of his or her service. See 38 U.S.C. § 3313(c). Nothing in this appeal turns on this aspect of the program.

include the net cost for in-state tuition and fees; a monthly stipend equal to the basic monthly

military housing allowance in the area in which the campus is located; and a lump sum payment

for books. 38 U.S.C. § 3313(a); see 38 C.F.R. § 21.9640(b) (2019). Because Post-9/11 education

benefits include the net cost for in-state tuition and fees, the monthly Post-9/11 education benefits

amount generally exceeds the corresponding amount of monthly MGIB benefits. See GI Bill

Comparison Tool, https://www.vets.gov/gi-bill-comparison-tool/profile/11800116 (last visited

Mar. 26, 2019) (for example, for full-time attendance at the University of Kansas and 3 years

aggregate active service, i.e., factors warranting the 100% rate, the per semester rate is $5,412 for

tuition and fees, $6,723 for housing allowance, and a $500 book stipend). The Post-9/11 GI Bill

also includes several administrative provisions, 38 U.S.C. §§ 3322-27, some of which we will

return to below.

Finally, for the moment on the statutory structure, several administrative provisions also

guide an individual's entitlement to more than one education benefit program. Two of these

provisions are particularly important here. Section 3695 provides that an eligible person may

receive education benefits under all programs for a total of 48 months. 38 U.S.C. § 3695 (titled

"Limitation on period of assistance under two or more programs"); see 38 U.S.C. §§ 3013(c)

(explicitly subjecting entitlement to MGIB benefits to section 3695's 48-month limitation);

3312(a) (same for Post-9/11 GI Bill benefits). In addition, section 3681(b)(1) bars the concurrent

receipt of education benefits under two or more programs. 38 U.S.C. § 3681(b)(1) (titled

"Limitations on educational assistance"); see 38 U.S.C. §§ 3033(a)(1) (barring concurrent receipt

of MGIB benefits and education benefits for which an individual "is also eligible"), 3322(a) (same

for Post-9/11 GI Bill benefits).

II. FACTUAL AND PROCEDURAL HISTORY

The appellant first served on active duty as an enlisted person in the U.S. Army from

January 2000 to June 2002. Record (R.) at 109. This service qualified him to receive benefits

through the MGIB. From July 2003 to approximately May 2004, he received MGIB education

benefits that he applied to expenses for undergraduate studies. R. at 67. From June 2004 to

December 2005, he again served on active duty as an enlisted person with an Army National Guard

unit, through which he deployed to Iraq. See R. at 5, 76, 108. After discharge from this second

period of active duty service, the veteran re-enrolled in university studies and received MGIB

benefits from July 2003 to May 2007. R. at 67. Combined, these periods during which the appellant

received benefits under MGIB total 25 months and 14 days. Id. From November 2007 to August

2011, he returned to active duty in the U.S. Army yet again, this time as a commissioned officer,

and he deployed to Iraq and Afghanistan. R. at 107. This period of service qualified him for

benefits under the Post-9/11 GI Bill. He has an aggregate of nearly 8 years of active duty service.

Id.

BO left the Army in 2011. According to his brief (and this is not disputed), he hoped to

return to the Army for yet another period of service, this time as a chaplain. See Appellant's Brief

(Br.) at 4. To make that possible, he planned to attend Yale Divinity School, to which he had been

admitted by 2015. Id.

On March 18, 2015, the appellant filed an electronic application for VA education benefits,

VA Form 22-1990 (application), in connection with his plan to return to school. R. at 125. On the

application, he stated that he was applying for Post-9/11 GI Bill education benefits "in [l]ieu of"

MGIB benefits and acknowledged that choosing to do so constituted an irrevocable election and

that his period of entitlement to Post-9/11 benefits would be limited to his remaining period of

entitlement under MGIB. Id. On March 20, 2015, VA issued a certificate of eligibility (COE) for

Post-9/11 benefits at the 90% level for a period of 10 months and 16 days, the difference between

the 36-month MGIB entitlement and the 25 months and 14 days of MGIB benefits that BO had

previously used. R. at 76-77.

Later that month, BO sent a congressional inquiry to his U.S. Senator asserting that his

separate period of service as a commissioned officer qualified him for "full" Post-9/11 education

benefits, including a combined 48-month entitlement, that is, 12 months more than the 36-month

entitlement under either the MGIB or the Post-9/11 GI Bill program alone. R. at 72. He further

stated that a VA education counselor suggested that he should revoke his claim for Post-9/11 GI

Bill benefits and, "contingent upon VA accepting" the revocation, use his remaining 10 months

under the MGIB. Id. The VA education counselor also informed him that if he exhausted his MGIB

benefits he could reapply under the Post-9/11 GI Bill and receive additional months of eligibility

under that program. Id.

In April 2015, a VA regional office (RO) responded to the congressional inquiry. R. at 67-

69. The RO stated that by law those individuals eligible under the Post-9/11 GI Bill who are also

eligible for benefits under the MGIB must relinquish their eligibility for that latter program to

receive benefits under the Post-9/11 GI Bill, and individuals who qualify for benefits under the

Post-9/11 GI Bill are limited to the amount of MGIB entitlement they have remaining. R. at 67.

The RO determined that the veteran made an irrevocable election to receive Post-9/11 GI Bill

benefits in lieu of MGIB benefits, that he acknowledged the election was irrevocable, and that the

election may not be changed. R. at 68. In May 2015, the RO issued another COE determining that

the appellant was entitled to 10 months and 16 days of Post-9/11 GI Bill benefits at the 100% level

based on an aggregate of his creditable active duty service. R. at 1177-78.

In October 2015, the RO issued a Statement of the Case (SOC) continuing its denial of the

appellant's "claim for additional entitlement" to Post-9/11 GI Bill benefits. R. at 27-41. Once again,

the RO determined that a claimant eligible for Post-9/11 GI Bill and MGIB benefits and wishing

to use the Post-9/11 program is required to make an irrevocable election to relinquish MGIB

benefits when seeking benefits under the Post-9/11 GI Bill. R. at 39. The RO found that, based on

the veteran's irrevocable election to use Post-9/11 GI Bill benefits, the law dictates that VA grant

entitlement under the Post-9/11 GI Bill not to exceed his remaining MGIB entitlement and nothing

in the law allowed VA to grant additional entitlement to the veteran that exceeded his remaining

MGIB entitlement. Id.

In July 2016, the Board issued the decision on appeal. It found that the veteran was

qualified for VA educational assistance benefits under both the MGIB and Post-9/11 Bill

programs. R. at 4. These are favorable findings that the Court may not disturb. See Medrano v.

Nicholson, 21 Vet.App. 165, 170 (2007). However, despite these findings, the Board rejected the

appellant's arguments that he was entitled to additional Post-9/11 benefits. R. at 3-11.

The Board interpreted VA regulations to provide that an individual is only eligible for Post-

9/11 GI Bill benefits if he or she meets the minimum service requirements and makes an

irrevocable election to receive benefits under the Post-9/11 GI Bill by relinquishing eligibility

under the MGIB. R. at 7 (citing 38 C.F.R. § 21.9520(c)(1) (2019)). The Board further stated that

if an individual is eligible for benefits under the MGIB and he or she uses some of that entitlement

before irrevocably electing to receive Post-9/11 GI Bill benefits in lieu of benefits under the MGIB,

then that individual may be awarded the equivalent of the entitlement that remained unused under

the MGIB program. Id. (citing 38 C.F.R. § 21.9550(b)(1) (2019)). The Board determined that no

provision of law authorized additional months of entitlement under the Post-9/11 GI Bill program

above the 36 total months of combined benefits under the MGIB and the Post-9/11 GI Bill. R. at

7-8. Therefore, the Board concluded that, as a matter of law, the veteran was ineligible for Post-

9/11 GI Bill benefits in excess of 10 months and 16 days, the amount of time BO had remaining

under the MGIB. R. at 11.

Furthermore, the Board found that the veteran's application accurately implemented the

statutory and regulatory requirements that a veteran explicitly acknowledge that an election to

receive Post-9/11 GI Bill benefits in lieu of MGIB benefits is irrevocable. R. at 9-10. The Board

determined that, because the veteran submitted a properly completed electronic application for

educational benefits, he had irrevocably elected to receive Post-9/11 benefits "in lieu of" MGIB

benefits. Id. (citing 38 C.F.R. § 21.9520(c)(2)). This appeal followed.

III. ANALYSIS

We find the Board erred as a matter of law when it denied the appellant educational

assistance for more than 10 months and 16 days under the Post-9/11 GI Bill based on his use of

MGIB benefits. As we explain below, the statutory scheme Congress enacted is ambiguous. By

reviewing the statutory structure, giving full meaning to all the statutory provisions, and relying

on the regulatory framework, congressional purpose, and the pro-veteran canon, we determine that

Congress's statutory scheme is best interpreted to provide that separate periods of qualifying

service allow a veteran such as BO to receive full benefits under both programs subject to an

aggregate cap on all such benefits.

A. Principles of Statutory Interpretation

The resolution of this appeal centers on the meaning of the various statutory provisions

Congress enacted to provide educational benefits to veterans under the MGIB and the Post-9/11

GI Bill. Statutory interpretation is a pure question of law that the Court reviews de novo. See

Saunders v. Wilkie, 886 F.3d 1356, 1360 (Fed. Cir. 2018). The basics of statutory interpretation

are well established. "In determining the meaning of a statutory provision, 'we look first to its

language, giving the words used their ordinary meaning.'" Artis v. District of Columbia, 138 S. Ct.

594, 603 (2018) (quoting Moskal v. United States, 498 U.S. 103, 108 (1990)); see Good Samaritan

Hosp. v. Shalala, 508 U.S. 402, 409 (1993) ("The starting point in interpreting a statute is its

language."). This principle is directed not only to statutory interpretation by courts, but also by

administrative agencies. "Where a statute's language carries a plain meaning, the duty of an

administrative agency is to follow its commands as written, not to supplant those commands with

others it may prefer." SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018).

Of course, this focus on statutory language does not mean that other indications of

congressional intent are off the table. As the Supreme Court recently reminded us, considering the

purposes behind a statutory scheme is a useful check on a court's interpretation of a specific

statutory provision. See Hughes v. United States, 138 S. Ct. 1765, 1774 (2018). Moreover, "the

statutory scheme as a whole, the specific context in which [a] word or provision at issue is used,

and the broader context of the statute as a whole" all inform any statutory provision's plain

meaning. Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010); see also King v. St. Vincent's Hosp., 502

U.S. 215, 221 (1991); Imazio Nursery, Inc. v. Dania Greenhouses, 69 F.3d 1560, 1564 (Fed. Cir.

1995) (holding that all parts of a statute must be construed together without according undue

importance to a single or isolated portion). Accordingly, the Court should construe a statute "so

that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or

insignificant, and so that one section will not destroy another unless the provision is the result of

obvious mistake or error." 2A NORMAN J. SINGER ET AL., SUTHERLAND ON STATUTORY

CONSTRUCTION § 46:6 (7th ed. 2007) [hereinafter SUTHERLAND]; see Splane v. West, 216 F.3d

1058, 1068-69 (Fed. Cir. 2000).

The goal of this interpretive endeavor is to identify and implement Congress's purpose in

enacting a given statute. See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) ("[W]e assume

'that the legislative purpose is expressed by the ordinary meaning of the words used.'" (quoting

Richards v. United States, 369 U.S. 1, 9 (1962))). But there are times when these tools aren't

sufficient to divine what Congress meant; in other words, the statute at issue is ambiguous. See

Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("[A] statute is ambiguous only when the

application of the ordinary meaning of the words and rules of construction to the plain language

of the regulation fails to answer the question at issue."). "Ambiguity exists when a statute is capable

of being understood by reasonably well-informed persons in two or more difference senses."

SUTHERLAND § 45.2 at 13. An important indicator of ambiguity is whether a given term is

"susceptible to multiple interpretations." Schertz v. Shinseki, 26 Vet.App. 362, 367 (2013).

Moreover, ambiguity may be created by legislative silence as well as by express statutory

language. See, e.g., Cox v. McDonald, 28 Vet.App. 318, 323-24 (2016). "Where ambiguity persists

after application of the standard tools of statutory construction, legislative history may be used to

resolve any such ambiguity." Frederick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir. 2012). A court

will also consider "preenactment history to determine the circumstances under which the

enactment was passed and the problem it was intended to remedy." Camarena v. Brown, 6

Vet.App. 565, 567 (1994).

When a statute is ambiguous, and an agency entrusted with implementation of that statute

has promulgated a regulation addressing the ambiguity, "the question for the court is whether the

agency's answer is based on a permissible construction of the statute." Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). It perhaps goes without saying that

if an agency has not promulgated regulations addressing the statutory ambiguity, there is nothing

to which a court could defer.

"Where a court concludes that Chevron deference is inapplicable, the court proceeds with

the task of statutory interpretation guided by the principles of Skidmore v. Swift & Co., 323 U.S.

134 (1944)." Cook v. Snyder, 28 Vet.App. 330, 340 (2017); see Jensen v. Shulkin, 29 Vet.App. 66,

71 (2017). Pursuant to Skidmore, the Court "may properly resort for guidance" to the Secretary's

arguments. 323 U.S. at 140. "The weight of such a judgment in a particular case will depend upon

the thoroughness evident in its consideration, the validity of its reasoning, its consistency with

earlier and later pronouncements, and all those factors which give it power to persuade, if lacking

power to control." Id. But the bottom line is that Skidmore deference (such that it truly is

"deference") isn't controlling. Id. ("[T]he rulings, interpretations, and opinions of [the agency] . . .

[are] not controlling upon the courts.").

Finally, there is a canon of statutory construction that is unique to veterans. "In the face of

statutory ambiguity and the lack of a persuasive interpretation of the statute from the Secretary,

the Court applies the rule that 'interpretative doubt is to be resolved in the veteran's favor.'" Sharp

v. Shinseki, 23 Vet.App. 267, 275 (2009) (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)).

B. The statutory scheme is ambiguous.

The precise question the Court must answer in this appeal is: how does the law treat a

veteran who qualifies for the MGIB under one period of service and the Post-9/11 GI Bill under

an entirely separate qualifying period or periods of service? Must such a veteran choose between

(or as the Secretary insists, irrevocably elect) which program he or she uses? Or, on the other hand,

may such a person use one period of service to get the MGIB benefits and the other(s) to obtain

Post-9/11 benefits, subject to any applicable aggregate cap? As we will see, Congress has not

spoken to this issue, making the statutory structure ambiguous.3 Before turning to that point,

however, we address an antecedent question concerning the general relationship between these

two educational programs.

1. The MGIB and the Post-9/11 GI Bill co-exist.

While there does not appear to be serious dispute about this issue, the Court makes clear

that Congress didn't intend to replace the MGIB program with the Post-9/11 GI Bill program; the

programs complement each other. In this regard, the veteran argues that "nothing about the Post-

9/11 GI Bill statute deviates" from the statutory scheme that provides for entitlements to multiple

educational assistance benefits. Appellant's Br. at 19-20. Specifically, he contends that 38 U.S.C.

§ 3695 (the provision providing for an aggregate 48-month cap on all education benefits),

incorporated by reference in the Post-9/11 GI Bill's statutory scheme, permits entitlement to and

the usage of both MGIB and Post-9/11 GI Bill benefits at separate times and therefore he is entitled

to a full period of MGIB benefits and another full period of Post-9/11 GI Bill benefits. Id. at 16-

19. The Secretary argues that, because statutes outlining the parameters of Post-9/11 GI Bill

entitlement and payment use the term "individual," additional periods of service add to the eligible

Post-9/11 GI Bill benefit level, but do not extend the duration of combined entitlement under the

MGIB and Post-9/11 GI Bill programs. Secretary's Br. at 9-10 (citing 38 U.S.C. §§ 3311 and 3313).

The Court agrees, as the veteran argues, Appellant's Br. at 20, that the Post-9/11 GI Bill

didn't replace the MGIB program. In enacting the Post-9/11 GI Bill, Congress determined that

service on active duty in the Armed Forces since September 11, 2001, "has been especially

arduous"; the then-current educational assistance program was "outmoded and designed for

peacetime service"; and providing post-9/11 veterans with "enhanced educational assistance

benefits that are worthy of such service and are commensurate with the educational assistance

benefits provided by a grateful Nation to veterans of World War II" was "in the national interest

Our dissenting colleague views the statutory scheme quite differently than we do. The different readings

explain much of the "ships passing in the night" quality of the majority and dissenting opinions. We have not stopped

at every point along the way of our complex analysis to explain that the dissent's different take on a given point is the

result of a fundamentally different view of what the statutes say. As it is said, where you stand depends a lot upon

where you sit. We ascribe no ill motive for these differences. This is undoubtedly a complex statute and reasonable

minds can—and do—differ about what it means. Do not take our silence as ignoring the dissent. It's just that we would

be repeating the same mantra: We read the statutes differently. For example, our dissenting colleague notes that BO

made a voluntary choice to irrevocably elect to forego his MGIB benefits in lieu of Post-9/11 benefits. That is a

powerful argument if one reads the statute as the dissent does. But if one reads it as we do, the argument is irrelevant

because VA presented BO with a choice he was never required to make.

of the United States." Pub. L. No. 110-252, § 5002. Congress also recognized the increased role

undertaken by reservists called to active duty service in the post-9/11 wartime environment.

Furthermore, the 2008 Post-9/11 GI Bill made few changes to the statutory language of the MGIB

or chapter 36, which concerns administrative chapter matters related to VA education benefits. Id.,

122 Stat. 2375.

The intent of Congress is clear that the MGIB and Post-9/11 GI Bill programs co-exist in

a broader statutory scheme. See Chevron U.S.A. Inc., 467 U.S. at 842-43. Plain language

demonstrates this co-existence. For example, in the subchapter that guides the overall

administration of education benefits, 38 U.S.C. § 3681 lists the MGIB and Post-9/11 GI Bill

chapters individually as programs to which an individual may be separately entitled, but barred

from receiving benefits concurrently. 38 U.S.C. § 3681(b)(1). Congress also details this statutory

bar to concurrent receipt of GI Bill benefits under multiple programs in Chapters 30 and 33, the

chapters for MGIB and Post-9/11 GI Bills respectively. See 38 U.S.C. §§ 3033(a), 3322(a). An

individual who is entitled to Post-9/11 education benefits "who is also eligible" for, inter alia,

MGIB education benefits "shall elect" under which program to receive those benefits. 38 U.S.C.

§ 3322(a)(1) (listing the MGIB education program as a separate program that an individual may

"also" be eligible to receive). And vice versa for the MGIB education program. 38 U.S.C.

§ 3033(a)(1).

Further evidence of the co-existence of MGIB and Post-9/11 education benefits program

is the clear 48-month cap that Congress imposed on the duration of their sequential receipt. In the

administrative chapter, chapter 36, similar to the bar on concurrent use discussed above, 38 U.S.C.

§ 3695 individually lists the MGIB and Post-9/11 GI Bill chapters as programs for which the

combination of receipt of benefits may not exceed 48 months. 38 U.S.C. § 3695(a)(4). Chapter 30

and chapter 33 each explicitly subject entitlement to their respective benefits to section 3695's 48-

month limitation and identify each other as a separate chapter under which an individual may also

be entitled to education benefits. 38 U.S.C. §§ 3013(c), 3312(a).

Accordingly, the statutory language is clear that the MGIB and the Post-9/11 GI Bill co-

exist as separate programs. And thus we've established that Congress didn't replace the MGIB with

the Post-9/11 Bill. So, the Post-9/11 program isn't inherently duplicative of the MGIB program.

And here it bears repeating that the Board found that BO qualifies under both programs based on

all of his periods of service. R. at 4. We turn now to a consideration of the relevant statutes in terms

of what they may (or may not) say about the issue we face.

Before diving into the deep statutory and regulatory waters we face, we pause to explain

what may appear to be redundancy in our approach. Simply put, there's no good way to wrap one's

hands around the web of statutes essential to our analysis. For ease of reference, we've provided

several means to review the statutes and regulations at play. First, we're attaching a statutory

appendix with the full versions of 38 U.S.C. §§ 3322 and 3327, the statutes that we and the dissent

interpret and apply, at the end of the dissenting opinion. This will allow the reader to find those

given provisions easily. But we'll also set out specific parts of the statutes and regulations (often

more than once) at various places in our discussion so that a particular area of discussion will be

more easy to follow. Though possibly redundant at times, this repetition should help ground the

unfortunate but necessarily dense and complex analysis to which we now turn.

2. The primary statutory provision, 38 U.S.C. § 3322, is ambiguous.

Recognizing that the appellant is eligible for both the MGIB and the Post-9/11 GI Bill

programs based on two separately qualifying periods of service (i.e., the appellant's first period of

active service totaling more than 2 years of continuous service, on its own, qualified him to obtain

MGIB benefits and his later periods of service, in the aggregate, qualify him to obtain Post-9/11

GI Bill benefits), we turn to logistics, and the question becomes how he may tap into those benefits.

For our purposes, the key statutory provision concerning how VA will administer someone like

the appellant's benefits is 38 U.S.C. § 3322. As Congress described, this section deals with a "[b]ar

to duplication of educational assistance benefits." In this portion of our opinion, we will closely

dissect this section. That discussion is necessary to understand fully why there is ambiguity here.

While we will reproduce the specific subsections of this statute in our discussion below, we provide

most of this section upfront now so that our introductory discussion is more accessible.

Before turning to our consideration of section 3322, we must mention one other part of the

statutory structure because it is alluded to in this section and is a focus of the Secretary's argument.

Section 3327 is entitled "[e]lection to receive educational assistance."4 Though ultimately we never

Section 3327 provides:

(a) Individuals eligible to elect participation in post-9/11 educational assistance. An

individual may elect to receive educational assistance under this chapter if such

individual— (1) as of August 1, 2009—(A) is entitled to basic educational assistance under

get to this section based on our interpretation of 3322, the Secretary insists that section 3327 is

important for this appeal because, as its title suggests, it provides support for making an irrevocable

election of a program's assistance at the cost of continued receipt of another program's assistance—

which, according to the Secretary, occurred in this case. However, as we will see, our interpretation

of section 3322 demonstrates that section 3327 does not apply in this case. To meaningfully

address why that is, however, we must return to 38 U.S.C. § 3322, "Bar to duplication of

educational assistance benefits":

(a) In general. An individual entitled to educational assistance under this

chapter [33] who is also eligible for educational assistance under chapter 30,

31, 32, or 35 of this title, chapter 107, 1606, or 1607 or section 510 of title 10,

or the provisions of the Hostage Relief Act of 1980 (Public Law 96-449; 5

U.S.C. 5561 note) may not receive assistance under two or more such programs

concurrently, but shall elect (in such form and manner as the Secretary may

prescribe) under which chapter or provisions to receive educational assistance.

(b) Inapplicability of service treated under educational loan repayment

programs. A period of service counted for purposes of repayment of an

education loan under chapter 109 of title 10 may not be counted as a period of

service for entitlement to educational assistance under this chapter.

Reserve may receive credit for such service under only one of this chapter,

chapter 30 of this title, and chapters 1606 and 1607 of title 10, and shall elect

(in such form and manner as the Secretary may prescribe) under which chapter

such service is to be credited.

(d) Additional coordination matters. In the case of an individual entitled to

educational assistance under chapter 30, 31, 32, or 35 of this title, chapter 107,

1606, or 1607 of title 10, or the provisions of the Hostage Relief Act of 1980,

or making contributions toward entitlement to educational assistance under

chapter 30 of this title and has used, but retains unused, entitlement under that chapter; (B)

is entitled to educational assistance under chapter 107, 1606, or 1607 of title 10 and has

used, but retains unused, entitlement under the applicable chapter; (C) is entitled to basic

educational assistance under chapter 30 of this title but has not used any entitlement under

that chapter; (D) is entitled to educational assistance under chapter 107, 1606, or 1607 of

title 10 but has not used any entitlement under such chapter; (E) is a member of the Armed

Forces who is eligible for receipt of basic educational assistance under chapter 30 of this

title and is making contributions toward such assistance under section 3011(b) or 3012(c)

of this title; or (F) is a member of the Armed Forces who is not entitled to basic educational

assistance under chapter 30 of this title by reason of an election under section 3011(c)(1)

or 3012(d)(1) of this title; and (2) as of the date of the individual's election under this

paragraph, meets the requirements for entitlement to educational assistance under this

chapter.

Under section 3327(i), an election made under subsection (a) is irrevocable.

chapter 30 of this title, as of August 1, 2009, coordination of entitlement to

educational assistance under this chapter, on the one hand, and such chapters or

provisions, on the other, shall be governed by [section 3327].5

(e) Bar to concurrent receipt of transferred education benefits and Marine

Gunnery Sergeant John David Fry Scholarship Assistance. An individual

entitled to educational assistance under both sections 3311(b) (9) and 3319 may

not receive assistance under both provisions concurrently, but shall elect (in

such form and manner as the Secretary may prescribe) under which provision

to receive educational assistance.

....

(g) Bar to concurrent receipt of transferred education benefits. A spouse or

child who is entitled to educational assistance under this chapter based on a

transfer of entitlement from more than one individual under section 3319 may

not receive assistance based on transfers from more than one such individual

concurrently, but shall elect (in such form and manner as the Secretary may

prescribe) under which source to utilize such assistance at any one time.

(h) Bar to duplication of eligibility based on a single event or period of

service.

(1) Active-duty service. An individual with qualifying service in the Armed

Forces that establishes eligibility on the part of such individual for educational

assistance under this chapter, chapter 30 or 32 of this title, and chapter 1606

or 1607 of title 10, shall elect (in such form and manner as the Secretary may

prescribe) under which authority such service is to be credited.

(2) Eligibility for educational assistance based on parent's service. A child

of a member of the Armed Forces who, on or after September 11, 2001, dies

in the line of duty while serving on active duty, who is eligible for educational

assistance under either section 3311(b)(9) or chapter 35 of this title based on

the parent's death may not receive such assistance under both this chapter and

chapter 35 of this title, but shall elect (in such form and manner as the

Secretary may prescribe) under which chapter to receive such assistance.

Section 3322 is ambiguous concerning the question before the Court because reasonably

well-informed people can understand it in two or more different senses supporting either party's

position. See SUTHERLAND § 45.2. We merely summarize these two potential readings of this

provision now and then address them in more detail below.

A reasonably well-informed person could understand section 3322 to operate like so:

subsection (a) bars the appellant "from receiving educational benefits under both Chapter 30 and

Chapter 33 and [he] must elect under which chapter to receive educational assistance." Secretary's

Brackets replace the following text: "the provisions of section 5003(c) of the Post-9/11 Veterans

Educational Assistance Act of 2008." Section 5003(c) of the public law is now codified at 38 U.S.C. § 3327.

Br. at 12. On this reading, the statute treats a person with multiple periods of service (like BO)

functionally the same as one with a single period of service. Applying to individuals with dual

entitlement based on multiple periods of service, subsection (d) explicitly allows the appellant to

irrevocably elect Post-9/11 benefits via 38 U.S.C. § 3327. Applying to individuals with dual

entitlement based on a single period of service, subsection (h) forces an election between programs.

This reading leads to affirmance.

On the other hand, a reasonably well-informed person could also understand section 3322

to operate like so: subsection (a) bars someone from receiving assistance from more than one

program during a single month, semester, or other applicable payment period, but allows that

person to switch freely between programs. The subsection does not address the question

concerning multiple periods of service. Applying to individuals with dual entitlement based on a

single period of service, subsection (d) allows someone who already elected MGIB benefits to then

irrevocably elect Post-9/11 benefits in the amount of the remaining, unused MGIB benefits for

such period. But it says nothing about a person who has more than one period of qualifying service

other than to the extent one of the periods qualified him or her for benefits under more than one

program. Also, applying to individuals with dual entitlement based on a single period of service,

subsection (h) imposes an election on an individual who's not yet elected any program attributable

to his or her period of service. This reading leads to reversal.

Now let's explore the section in more detail to consider the alternate possibilities. A

reasonably well-informed person would know the following information when seeking to

understand section 3322's import. People can serve our country in a single period or in multiple

blocks of time. Some veterans served, left service, and utilized MGIB benefits before Congress

established the Post-9/11 program. Some of those same veterans then returned to service and

amassed another period of service. The MGIB and Post-9/11 programs list partially overlapping

dates for qualifying service, such that a single period of service on or after September 11, 2001,

may meet the basic requirements for both programs. See 38 U.S.C. §§ 3011 (MGIB) and 3311

(Post-9/11). Every veteran who is deemed to have served multiple periods of service necessarily

served two or more single periods of service. (This may sound ridiculously self-evident, but it

bears repeating for reasons that will become apparent as the analysis proceeds.) Unless properly

clarified, "educational assistance" or "benefits" could refer to either a collection of benefits

programs, the collection of all periodic payments under a single program, or the money from a

discrete check distributed under a single program. Likewise, "election" of such "educational

assistance" or "benefits" could refer to a choice between programs themselves or a choice of a

single, discrete payment's program source. Congress didn't define these terms in the legislation.6

Looking at section 3322 more broadly, we see it bears the heading "[b]ar to duplication of

educational assistance benefits." "Although section headings cannot limit the plain meaning of a

statutory text, they supply cues as to what Congress intended." Merit Mgmt. Grp., LP v. FTI

Consulting Grp., Inc., 138 S. Ct. 883, 893 (2018) (citation and internal quotation marks omitted).

We know from this heading that Congress is concerned with "duplication" or double-dipping. But

if there's no "duplication," there's no cause for concern.7

Considering Congress's word choice in this heading, another way to word the precise

question at issue in terms of congressional intent is whether Congress desired to bar the receipt of

benefits under both the MGIB and Post-9/11 GI Bill when a veteran has at least two separately

qualifying periods of service as "duplication." The face of the statute simply does not clearly

answer this question.

For our purposes, section 3322's most important subsections are (a), (d), and (h). But the

other portions of the statute provide context essential for our analysis. See Hornick, 24 Vet.App.

at 52; see also King, 502 U.S. at 221; Imazio Nursery, Inc., 69 F.3d at 1564.

a. Section 3322(a)

Let's begin with subsection (a):

In general.--An individual entitled to educational assistance under this chapter [33]

who is also eligible for educational assistance under chapter 30, 31, 32, or 35 of

this title, chapter 107, 1606, or 1607 or section 510 of title 10, or the provisions of

the Hostage Relief Act of 1980 (Public Law 96-449; 5 U.S.C. 5561 note) may not

receive assistance under two or more such programs concurrently, but shall elect

VA defines "educational assistance" to mean "the monetary benefit payable under 38 U.S.C. chapter 33 to,

or on behalf of, individuals who meet the eligibility requirements for pursuit of an approved program of education

under 38 U.S.C. chapter 33." 38 C.F.R. § 21.9505. But the use of "educational assistance" at the end of section 3322(a)

specifically isn't restricted to chapter 33.

"To duplicate" means "to do or cause to be done twice over," "to be a copy of," or "to make several copies

of;" as an adjective, "double or twofold" or "exactly like another or several others;" as a noun, "a thing that is exactly

like another or others" or "a second copy of a form or document." THE NEW LEXICON WEBSTER'S ENCYCLOPEDIC

DICTIONARY OF THE ENGLISH LANGUAGE 289 (Deluxe ed. 1991) [hereinafter WEBSTER'S]; see Nielson v. Shinseki,

23 Vet.App. 56, 59 (2009) (noting that it is "commonplace to consult dictionaries to ascertain a term's ordinary

meaning").

(in such form and manner as the Secretary may prescribe) under which chapter or

provisions to receive educational assistance.

In isolation, one could read subsection (a) to support either party's views. It doesn't speak in terms

of periods of service. Rather, it applies broadly to an "individual" entitled to Post-9/11 benefits

"who is also eligible for educational assistance under" a list of other programs (including the

MGIB) all connected by the conjunction "or." The only thing subsection (a) prohibits is concurrent

receipt: such an individual "may not receive assistance under two or more such programs

concurrently."8

Note also that subsection (a) provides that such an individual "shall elect (in such form and

manner as the Secretary may prescribe) under which chapter or provisions to receive educational

assistance." Though the election mechanism relevant to this subsection isn't immediately apparent,

one thing is clear: it's not section 3327. The Secretary didn't prescribe section 3327; Congress did.

Section 3327 is a square peg to section 3322(a)'s round hole. We'll revisit subsection (a)'s mystery

election mechanism later.

There are many questions left after reading subsection (a). For example, as a general matter

when it refers to an "individual . . . eligible for educational assistance . . ." does that mean that all

periods of service no matter how distinct are lumped together for such an "individual"? Or does it

mean that such an "individual" may be separately "eligible for educational assistance" more than

one time based on distinct periods of service? The subsection just does not tell us, and, as we have

indicated, either meaning is plausible.

An equally gaping hole in subsection (a) is a frame of reference for the bar on concurrent

receipt and mandatory election: about which relevant period are we talking? The entire life of a

program, such that one must exhaust a first program before touching the other? Or a single payment

period, such as a month or semester, such that an individual only receives payment from one source

per payment period? The first option is highly restrictive, and the other allows veterans more

freedom of administration. Subsection (a) is ambiguous in this respect as well.

Though subsection (a) leaves us wanting, we can look to other subsections worded

similarly to subsection (a) in an attempt to resolve this ambiguity.

b. Section 3322(e) and (g)

"Concurrent" means "running alongside, existing or happening together;" "acting together, cooperating;"

"directed to, or intersecting in, the same point;" or "having joint, equal authority." WEBSTER'S 203; see Nielson,

23 Vet.App. at 59.

At first glance, subsection (e) looks promising, but it is as impenetrable as subsection (a):

(e) Bar to concurrent receipt of transferred education benefits and Marine

Gunnery Sergeant John David Fry Scholarship Assistance.--An individual

entitled to educational assistance under both sections 3311(b) (9) and 3319 may not

receive assistance under both provisions concurrently, but shall elect (in such form

and manner as the Secretary may prescribe) under which provision to receive

educational assistance.

But subsection (g) regarding transferred education benefits (that is, the ability of a veteran with

qualifying service to transfer his or her benefits to others, such as children) also deals with this

idea of concurrent receipt:

(g) Bar to concurrent receipt of transferred education benefits.--A spouse or

child who is entitled to educational assistance under this chapter based on a transfer

of entitlement from more than one individual under section 3319 may not receive

assistance based on transfers from more than one such individual concurrently, but

shall elect (in such form and manner as the Secretary may prescribe) under which

source to utilize such assistance at any one time.

This subsection includes an extra phrase that perhaps sheds lights on subsection (a). Subsection

(g) provides that individuals to whom it applies "shall elect (in such form and manner as the

Secretary may prescribe) under which source to utilize such assistance at any one time." 38 U.S.C.

§ 3322(g) (emphasis added). Let's assume that, because subsection (a) doesn't include this

language verbatim, it must mean something different than subsection (g). Consider how odd it

would be if Congress intended to allow an entitled person who didn't personally serve in the

military to receive up to 48 months of transferred benefits under subsection (g), mandating only

that the person elect the source of the payments at any given time, but—through silence—also

intended to prevent a servicemember him- or herself from receiving extra benefits based on

multiple, separately qualifying periods of service on the condition of a similar election mechanism.

This arguably absurd result should arouse suspicion that such a result is what Congress wanted to

achieve. See McNeill v. United States, 563 U.S. 816, 822 (2011) (adopting an interpretation that

"avoids the absurd results that would follow" from an alternate interpretation); United States v.

Wilson, 503 U.S. 329, 334 (1992) (citing United States v. Turkette, 452 U.S. 576, 580 (1981)

("[A]bsurd results are to be avoided . . . .")); Timex V.I., Inc. v. United States, 157 F.3d 879, 886

(Fed. Cir. 1998) (applying "the canon that a statutory construction that causes absurd results is to

be avoided if at all possible").

Recall the information that a reasonably well-informed person would bring to this analysis.

Unclear from subsection (a)'s wording is whether it prohibits someone from tapping into Post-9/11

benefits as a whole program (i.e., the collection of all the months of entitlement) while he or she

is tapping into the MGIB benefits as a whole program, or whether it simply prohibits someone

from benefiting from two checks from two different programs in the same payment period. We

could word the options thus: (1) Someone who is using one educational assistance program may

not receive assistance from another program until he or she has exhausted his or her total

entitlement under the first program, but then he or she may start to receive assistance from the

second program; or (2) Someone may not receive assistance from more than one program during

a single month, semester, or other applicable payment period, but may switch freely between

programs as the Secretary provides. Both of these options are feasible; thus section 3322(a) is

ambiguous, capable of being understood by reasonably well-informed persons in two or more

different senses. See SUTHERLAND § 45.2.

c. Section 3322(b) and (c)

Moving to 38 U.S.C. § 3322(b) and (c)—these subsections may seem irrelevant to our

inquiry at first glance. But notice that subsection (b) discusses the purposes for which "a period of

service" may count, albeit in a very different context.

(b) Inapplicability of service treated under educational loan repayment

programs.--A period of service counted for purposes of repayment of an

education loan under chapter 109 of title 10 may not be counted as a period of

service for entitlement to educational assistance under this chapter.

Basically, it says that one can't double count a single period of service to get two benefits. In other

words, it forbids double-dipping in benefits based on a single period of service for repayment of

an educational loan.

Similarly, subsection (c) requires Selected Reserve servicemembers to choose under which

chapter to credit their service, presumably to prevent another manifestation of potential double-

dipping based on certain service:

Reserve may receive credit for such service under only one of this chapter,

chapter 30 of this title, and chapters 1606 and 1607 of title 10, and shall elect

(in such form and manner as the Secretary may prescribe) under which chapter

such service is to be credited.

Congress clearly and understandably disfavored double-dipping in these respects, but note that no

provision indicates that Congress worried more broadly about two full, separate program

entitlements (subject to 38 U.S.C. § 3695's 48-month cap) based on two or more separate periods

of service.

d. Subsections 3322(d) and (h) and Coordination of Benefits

Now let's consider subsection (d):

(d) Additional coordination matters.--In the case of an individual entitled to

educational assistance under chapter 30, 31, 32, or 35 of this title, chapter 107,

1606, or 1607 of title 10, or the provisions of the Hostage Relief Act of 1980, or

making contributions toward entitlement to educational assistance under chapter 30

of this title, as of August 1, 2009, coordination of entitlement to educational

assistance under this chapter, on the one hand, and such chapters or provisions, on

the other, shall be governed by [section 3327].

This provision is significant because it is the portion of section 3322 that directs one to the

election provisions in section 3327. Once again, the subsection does not cure the ambiguity in

subsection (a). In fact, it reflects a similar ambiguity. Does section 3322(d) govern the coordination

of the appellant's entitlement to desired Post-9/11 benefits tied to one period of service and his

entitlement to MGIB benefits tied to another? If so, it supports the Secretary. Or, rather, might it

govern the coordination of the appellant's entitlement to MGIB and Post-9/11 benefits tied to a

single period entitling him to both, and leave his existing MGIB benefits tied to an entirely

different period alone? This would support the appellant.

Both possibilities are feasible. And both possibilities' feasibility indicates ambiguity;

section 3322(d) is capable of being understood by reasonably well-informed persons in two or

more different senses. See SUTHERLAND § 45.2.

The possible relationships between 38 U.S.C. § 3322(d) and (h) also evidence section

3322's ambiguity. Subsection (h)9 states:

(h) Bar to duplication of eligibility based on a single event or period of

service.--

(1) Active-duty service.--An individual with qualifying service in the Armed

Forces that establishes eligibility on the part of such individual for educational

assistance under this chapter, chapter 30 or 32 of this title, and chapter 1606

In January 2011, Congress amended the Post-9/11 GI Bill to stop VA's practice of awarding two benefits

(under two different programs for up to 48 months) for the same period of service. See S. REP. NO. 111-346, at 19

(2010), reprinted in 2010 U.S.C.C.A.N. 1503. VA had been improperly awarding an additional 12 months of Post-

9/11 benefits after veterans exhausted Montgomery GI Bill benefits, to award a total of 48 months for a veteran with

a single period of service. See id. The U.S. Senate Committee on Veterans' Affairs explained that this practice

necessitated an amendment because current "law" (i.e., the VA’s interpretation) allowed "an individual, who entered

into service on September 1, 2002, and who completed three years of service . . . [to establish] eligibility for 36 months

of educational assistance under the [Montgomery GI Bill] in addition to eligibility for 36 months of educational

assistance under the Post-9/11 GI Bill," subject to section 3695's 48-month cap. Id. Thus, Congress added subsection

(h) requiring election of authority under which to credit a single period of service. Id.

or 1607 of title 10, shall elect (in such form and manner as the Secretary may

prescribe) under which authority such service is to be credited.

(2) Eligibility for educational assistance based on parent's service.--A

child of a member of the Armed Forces who, on or after September 11, 2001,

dies in the line of duty while serving on active duty, who is eligible for

educational assistance under either section 3311(b)(9) or chapter 35 of this

title based on the parent's death may not receive such assistance under both

this chapter and chapter 35 of this title, but shall elect (in such form and

manner as the Secretary may prescribe) under which chapter to receive such

assistance.

The Secretary argues that, because subsection (h) explicitly refers to a single period of service,

subsection (d)'s silence as to periods of service must necessarily mean that Congress intended it to

apply to coordinate entitlements based on at least two periods of service. Oral Argument at 48-50,

BO v. Wilkie, U.S. Vet. App. No. 16-4134 (argued May 2, 2018),

http://www.uscourts.cavc.gov/oral_arguments_audio.php (appearing under the 2018 tab). We

disagree and decline to assume a meaning in subsection (d)'s silence that automatically

disadvantages veterans in practice.

Subsections (d) and (h) can still co-exist even if they both apply only to a single period of

service. As mentioned at the beginning of this discussion, subsection (d) could allow someone who

already elected MGIB benefits to irrevocably elect Post-9/11 benefits in the amount of the

remaining, unused MGIB benefits for a single period of service. Subsection (h) could impose an

election on an individual who's not yet elected any program attributable to his or her period of

service. The co-existence of these two understandings means ambiguity; a reasonably

well-informed person could understand their relationship in at least these two senses. See

SUTHERLAND § 45.2.

The truth is that no matter how closely one reads section 3322, or no matter how one parses

its various subsections, it is ambiguous. It is possible to read this provision to require a person like

BO with two distinct qualifying periods of service entitling him to benefits under two programs to

choose irrevocably between them. But it is equally possible to read the section as being limited to

addressing what to do when a person qualifies for two programs based on a single period of service.

In sum, Congress hasn't spoken directly to the precise question at issue—at least not clearly. See

Chevron, 467 U.S. at 842-43. Thus, our inquiry continues.

C. The relevant regulations parrot the ambiguous statutes;

therefore, we afford them no Chevron deference.

Because we consider section 3322 ambiguous for our purposes, we next consult the

implementing regulations to see whether VA adopted a permissible interpretation of such

ambiguity, and if so, we defer to it. This is what Chevron commands. See id. at 844-45.

It turns out that the Chevron inquiry is quite straightforward in this case. The implementing

regulations that cite section 3322 as authority and could possibly offer a permissible interpretation

of the statutory ambiguity are 38 C.F.R. §§ 21.4022, 21.9635(w), and 21.9690.10 Neither the Board

nor the Secretary cited any of these regulations, much less argued that, through them, VA adopted

a permissible interpretation of section 3322's ambiguity that is favorable to the Secretary's position

now. Checking them independently for such a permissible interpretation, we find none. At

minimum, the regulations essentially "repeat" the silence in the statute about how to treat a veteran

with two distinct periods of qualifying service entitling him or her to benefits under different

programs. At most, they point toward an interpretation that is more favorable to appellant than the

Secretary; we dig deeper into this point in our next section about the best interpretation. Thus,

these regulations are not ones to which Chevron deference applies, at least with respect to the

question before the Court. See Cook v. Snyder, 28 Vet.App. 330, 339 (2017) (noting Chevron

deference is not appropriate when regulation does not resolve statutory ambiguity but merely

repeats it), aff'd sub. nom. Cook v. Wilkie, 908 F.3d 813 (Fed. Cir. 2018).11

Because VA didn't adopt regulations addressing the relevant statutory ambiguity, we

assume the task of independently determining the best interpretation on the meaning of the

statutory scheme. See Chevron, 467 U.S. at 844-45. We turn to that endeavor next.

The full list of implementing regulations comprises 38 C.F.R. §§ 21.3022, 21.4022, 21.5022, 21.7642,

21.9505, 21.9570, 21.9635, and 21.9690. Of those, the other five aren't directly relevant and can't possibly be read to

adopt a clear, permissible interpretation of the statutory ambiguity. See §§ 21.3022, 21.5022, and 21.7642 (concerning

the relationships between different chapters (i.e., not chapter 30) and chapter 33), 21.9505 (offering a definition for

active duty), 21.9570 (concerning transfer of entitlement).

In theory, we might have been called on to accord controlling deference to the Secretary's interpretation of

his regulations. See Auer v. Robbins, 519 U.S. 452 (1996). Whatever the continued viability of this doctrine is today,

see Kisor v. Wilkie, 139 S. Ct. 2400 (2019), no Auer-like deference would be due to the Secretary's position in this

appeal. Because the Secretary is at most providing his view on the regulations, and the regulations do nothing more

than copy the ambiguity in the statute, his interpretation is simply an argument about the statute. That is not subject

to Auer deference. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006) ("An agency does not acquire special authority

to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected

merely to paraphrase the statutory language."). In terms of deference, this would leave us with Skidmore. As we noted

above, see supra Part III.A, a court may look to an agency's interpretation of a statute for guidance in a looser sense

of "deference." The utility of such guidance depends at its core on the persuasiveness of an agency's reasoning. See

Skidmore, 323 U.S. at 140. As we discuss in the next section, the Secretary's arguments about the meaning of the

statutory scheme (as well as his regulations) lack the "power to persuade."

D. Section 3322 is best interpreted to allow BO to receive benefits under both programs.

We have no reason to think that any one of section 3322's provisions is the result of obvious

mistake or error, so we have an obligation to construe it so that effect is given to all its provisions;

so that no part will be inoperative or superfluous, void or insignificant; and so that one section will

not destroy another. See SUTHERLAND § 46:06; see Splane, 216 F.3d at 1068-69. We conclude that

the best interpretation favors the appellant, see Chevron, 467 U.S. at 844-45, and that the

Secretary's arguments aren't persuasive, see Skidmore, 323 U.S. at 140.

We begin by returning to the statutory text. Our interpretation of subsection (a) is the heart

of our more global interpretation of section 3322:

In general.--An individual entitled to educational assistance under this chapter [33]

who is also eligible for educational assistance under chapter 30, 31, 32, or 35 of

this title, chapter 107, 1606, or 1607 or section 510 of title 10, or the provisions of

the Hostage Relief Act of 1980 (Public Law 96-449; 5 U.S.C. 5561 note) may not

receive assistance under two or more such programs concurrently, but shall elect

(in such form and manner as the Secretary may prescribe) under which chapter or

provisions to receive educational assistance.

The language of subsection (a) prohibits someone from benefiting from two or more checks from

two or more different programs in the same payment period. Recall the options for subsection (a)'s

potential meanings we outlined earlier in the analysis. That section could be concerned with

preventing "duplication" in terms of programs or "duplication" with respect to multiple payments

made during a given period of time. We believe the better reading is that the duplication with

which Congress was concerned was the latter. In other words, someone may not receive assistance

from more than one program during a single month, semester, or other applicable pay period, but

may switch freely between programs, as the Secretary provides.

We conclude this is the best reading of the statute for several reasons, acknowledging that

Congress was silent on this question. First, our interpretation is consistent with and gives meaning

to the other parts of section 3322. Second, our reading makes sense in the context of the Secretary's

regulations. Indeed, any other meaning makes much of the regulatory framework largely

meaningless. Third, this interpretation gives real meaning to the 48-month aggregate cap,

something that loses force as a practical matter under an alternate construction of the statute.

Fourth, our interpretation is consistent with congressional purpose and the history of the creation

of educational benefits programs more generally. And finally, the pro-veteran canon of statutory

construction removes any doubt that the ambiguity in this statute should be resolved in the manner

we have suggested. We address each of these matters in turn.

1. Giving Meaning to All Statutory Provisions

First, our interpretation of subsection (a) fits comfortably with how we have interpreted the

balance of section 3322, thereby giving meaning to all the statute's provisions. A prime example

is the relationship between subsections (d) and (h). For ease of reference, here they are again: