Wright v. Gober

KRAMER, Judge,

dissenting:

The appellant asserts that the effective date statute found at 38 U.S.C. § 5110 violates the equal protection component of the Fifth Amendment Due Process Clause and is, therefore, unconstitutional. Brief at 5-6. His averment of unconstitutionality, in essence, centers on the proposition that 38 *349 U.S.C. § 5110 , and by implication its implementing regulation, 38 C.F.R. § 3.400 (1996), cannot provide him with any retroactive entitlement. In regard to possible retroactive entitlement, because the BVA failed to address 38 U.S.C. § 5110 (a), (b)(1), and their implementing regulations 38 C.F.R. § 3.400 , (b)(2)(i) (1996), the Court’s consideration of any constitutional issue is premature.

Sections 5110(a) and (b)(1) of title 38, U.S.Code, provide:

(a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(b)(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

The implementing regulation for section 5110(a) is 38 C.F.R. § 3.400 , which provides as follows:

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.

The implementing regulation for section 5110(b)(1) is 38 C.F.R. § 3.400 (b)(2)(i), which provides, in pertinent part, as follows:

(2) Disability compensation — (i) Direct service compensation____ Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.

I.

In statutory interpretation, if “the plain meaning of a statute is discernible, that ‘plain meaning must be given effect.’ ” Johnson v. Brown, 9 Vet.App. 369, 371 (1996) (citing Tollman v. Brown, 7 Vet.App. 453, 460 (1995)); see also Brown v. Gardner, 513 U.S. 115, 120 , 115 S.Ct. 552, 556 , 130 L.Ed.2d 462 (1994). “Determining a statute’s plain meaning requires examining the specific language at issue and the overall structure of the statute.” Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) (citing Bethesda Hospital Ass’n v. Bowen, 485 U.S. 399, 403-05 , 108 S.Ct. 1255, 1258-59 , 99 L.Ed.2d 460 (1988)), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, 513 U.S. 115 , 115 S.Ct. 552 , 130 L.Ed.2d 462 (1994). Therefore, “each part or section of a statute should be construed in connection with every other part or section so as to produce a harmonious whole.” 2A Norman J. Singer, Sutherland on Statutory Construction § 46.05 (5th ed.1992) [hereinafter 2A Singer]. The “plain meaning must be given effect unless a ‘literal application of [the] statute will produce a result demonstrably at odds with the intention of its drafters.’ ” Gardner, 1 Vet.App. at 586 -87 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 , 102 S.Ct. 3245 , 73 L.Ed.2d 973 (1982)). The “absurd result” exception to the plain meaning rule is narrow and limited to situations “where it is quite impossible that Congress could have intended the result ... and where the alleged absurdity is so clear as to be obvious to most anyone.” Gardner, 1 Vet.App. at 587 (quoting Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 470-71 , 109 S.Ct. 2558, 2575-76 , 105 L.Ed.2d 377 (1989) (Kennedy, J., concurring)).

The plain meaning of section 5110(a) and 38 C.F.R. § 3.400 ties the effective date of an award of service connection to the application on which the award is based. However, section 5110(b)(1) and its implementing regulation, 38 C.F.R. § 3.400 (b)(2)(i), do not specify whether the effective date is to be based on the unsuccessful application that was filed within a year from discharge (here, the 1954 application) or the application from which the *350 award derives (here, the November 1990 application).

The Secretary argues that the plain meaning of 38 U.S.C. § 5110 (b)(1) refers only to the application from which the award derives because such a reading comports with the structure of 38 U.S.C. § 5110 taken as a totality, and he argues that certain other subsections of 38 U.S.C. § 5110 would be impacted by reading subsection (b)(l)’s reference to application as referring to an unsuccessful application filed within a year of discharge. These subsections, however, are not applicable to the facts of this case and their wording is different from that of subsection (b)(1).

The Secretary further argues that such a reading of subsection (b)(1) would conflict with subsection (i) of 38 U.S.C. § 5110 , and that the two subsections can be rendered harmonious only by adopting his construction. Subsection (i) governs the specific situation in which an award of service connection is made with respect to a claim reopened on the basis of new and material evidence resulting from the correction of military records or the change or modification of a discharge or dismissal. Under subsection (i) the effective date for an award of service connection cannot be earlier than the date of the administrative change that resulted in the successful reopened claim. Any perception by the Secretary as to a conflict between the two subsections, (b)(1) and (i) of section 5110, would be limited to the situation in which a veteran filed an unsuccessful application within a year of discharge and, thereafter, reopened a successful claim predicated on a correction of military records or a change in the basis of discharge or dismissal. However, as already noted, with respect to the other subsections pointed to by the Secretaxy, subsection (i) is also not applicable to the present case and the wording of subsection (i) is also different from the wording of subsection (b)(1). Moreover, even in the specific situation in which a veteran filed an unsuccessful application within a year of discharge and, thereafter, reopened a successful claim predicated on a correction of military records or a change in the basis of discharge or dismissal, the normal rules of statutory construction, which provide that the specific governs over the general and that a later appearing provision prevails over an earlier provision, might resolve the perceived conflict. See 2A Singer, supra; 2B NORMAN J. Singer, Sutherland on Statutory Construction, § 51.05 (5th ed.1992) [hereinafter 2B Singer], Finally, the Secretary’s construction of subsection (b)(1) does not take into account any date of entitlement limitation that might be provided for in 38 C.F.R. § 3.400 (b)(2)(i), discussed in section II., infra.

In addition, the Secretary argues that to predicate an effective date on a failed application, received within a year of discharge, would create an absurd result. The absurd result doctrine usually only arises where a statute has only one meaning and not as a general methodology for resolving statutory ambiguity. See Gardner, 1 Vet.App. at 587 . Even assuming the applicability of this doctrine, one might reasonably contend that retroactivity to the date of discharge based on a failed application filed within a year of discharge for an award of service connection based on a claim reopened years later, does not provide for an absurd result. The reasonableness of such a contention might be predicated on the fact that an award of service connection at any time, by definition, requires a determination that the particular condition was incurred in or aggravated in service. See Caluza v. Brown, 7 Vet.App. 498, 505 (1995). On the other hand, one might reasonably contend that retroactivity, especially for a long period of time, for a particular disability rating that far exceeds the degree of disability present at the time of the failed application would indeed lead to an absurd result. However, because of the possible limitations on such retroactivity discussed in section II., infra, an absurd result might be avoided.

As indicated supra, because 38 U.S.C. § 5110 (b)(1) and 38 C.F.R. § 3.400 (b)(2)© do not specify whether the effective date is to be based on the unsuccessful application that was filed within a year from discharge or the application from which the award derives, it may be appropriate to examine both legislative history and VA’s interpretation of sec *351 tion 5110(b)(1), beyond its promulgation of 38 C.F.R. § 3.400 (b)(2)(i). See Gardner, 1 Vet.App. at 587-88 ; A Singer, § 48.01; 2B Singer, § 49.05. It appears that only a single document might be viewed as bearing on either consideration. The document, a July 27, 1972, VA memorandum from the Chief Benefits Director to the General Counsel, describes VA’s legislative proposal to the 1st Session, 93rd Congress, to amend 38 U.S.C. § 3010 (now 38 U.S.C. § 5110 ) to allow for liberalized effective dates for payment of disability pension awards. The document, which also describes some of the other liberalizing exceptions already in existence at the time of the proposed legislation, states, in pertinent part:

The veteran who has just been discharged or released from active service has a great many things on his mind in order to satisfactorily adjust from the military to civilian way of life, the least of which may be his disability compensation claim from the VA. He is concerned with obtaining adequate and suitable housing for himself and/or his family and an adequate and suitable job. If he delays in filing his claim for not more than a year, he has not been deprived of the compensation, since his award will be made effective the day following his discharge or release from service.

Secretary’s Appendix to Supplemental Memorandum in Response to Court Order, Volume I at 139. To the extent that this document might bear on the question of which application is the triggering application for effective date purposes, I note the following. First, an interpretation that appears only in an agency’s internal communications carries less weight than one that is publicly declared. See Flores v. Bowen, 790 F.2d 740 (9th Cir.1986); Montana Power Co. v. Environmental Protection Agency, 429 F.Supp. 683 (D.Mont.1977). Second, the document does not appear to be intended to construe which application should be the basis for the assignment of an effective date. Third, although the document references retroactivity in the context of a veteran’s needing time to put his affairs in order after discharge, it does not exclude a longer period of retroactivity. Finally, a VA position that adopts a construction less beneficial to a veteran, as well as any VA resolution of statutory or regulatory ambiguity, would have to take into account the impact of Gardner that held that “interpretive doubt is to be construed in the veteran’s favor.” 513 U.S. at 117, 118 , 115 S.Ct. at 554-55, 555 (citations omitted).

II.

Section 5110(a) appears to impose a “facts found” limitation on the effective date of an award and applies “[ujnless specifically provided otherwise in this chapter.” Section 5110(b)(1), obviously a provision “in this chapter,” makes no reference to the “facts found” limitation in section 5110(a). Thus, one question is whether section 5110(a) superimposes a “facts found” limitation on the exceptions to section 5110(a) that do not otherwise specifically address facts found. In other words, because section 5110(b)(1) is silent as to “facts found,” is the “facts found” limitation of 5110(a) superimposed on it?

As possibly bearing on this question, both 38 C.F.R. § 3.400 and 38 C.F.R. § 3.400 (b)(2)® use the phrase “date entitlement arose” rather than the phrase “facts found.” Section 3.400 cites section 5110(a) as its authority, and the context of its wording suggests that the “date entitlement arose” may refer to “facts found.” In addition, although paragraph (b)(2)® of 38 C.F.R. § 3.400 does not specifically cite section 5110(b)(1) or any other statute for its authority, its use of the “date of receipt of claim, or date entitlement arose, whichever is later” language, the same test as provided for in general section 3.400, also suggests that the “date entitlement arose” may refer to “facts found.” It should be further noted that the “date entitlement arose” language is used twice in the first sentence of paragraph (b)(2)®, once before the semicolon and once after, and that it is the “date entitlement arose” language placed after the semicolon that is used in conjunction with the test of “date of the receipt of claim or the date entitlement arose, whichever is later” in section 3.400. Although it is the “date entitlement arose” language placed before the semicolon that we are concerned with, there is no apparent reason to give the two identical phrases different meanings. (If “it is a ‘basic cannon of statutory construction that *352 identical terms within an Act bear the same meaning,’ ” see In re Fee Agreement of Smith, 5 Vet.App. 307, 310 (1993) (en banc) (Steinberg, J., dissenting) (citing See Estate of Cowart v. Nicklos Drilling, 505 U.S. 469, 479 , 112 S.Ct. 2589, 2596 , 120 L.Ed.2d 379 (1992)), a fortiori, such terms should bear the same meaning if they appear in the same sentence.) Whereas section 5110(a) is ambiguous as to the superimposition of “facts found” on section 5110(b)(1), 38 C.F.R. § 3.400 (b)(2)(i), the regulation implementing section 5110(b)(1), appears to superimpose a “facts found” limitation on retroactivity, thus potentially avoiding an absurd result regardless of whether the unsuccessful application filed within a year of service or the later filed successful application is the triggering application for the determination of an effective date (see Section I., supra). See Winn v. Brown, 8 Vet.App. 510, 515 (1996) (“The Court will sustain a regulation that is consistent with the language of the statute and is a plausible or reasonable interpretation of the law”) (citing Chevron U.S.A v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 , 104 S.Ct. 2778, 2781-83 , 81 L.Ed.2d 694 (1984)).

III.

Subsections (a) and (b)(1) of § 5110 and their implementing regulations raise the issues, first, of whether the effective date is to be based on an unsuccessful application that was filed within a year from discharge or on an application from which an award derives and second, the impact both of the phrase “date entitlement arose” in 38 C.F.R. § 3.400 (b)(2)(i) and of Gardner on the determination of that issue. Rather than follow the course taken by the majority, especially because the BVA has not addressed the impact of 38 C.F.R. § 3.400 (b)(2)(i), see SEC v. Chenery Corp., 318 U.S. 80, 88 , 63 S.Ct. 454, 459-60 , 87 L.Ed. 626 (1943) (where an agency determination of policy is required, but has not been made, a judicial judgment should not be substituted for an administrative judgment), I would vacate the BVA decision and remand these issues for BVA consideration.