Petition for Writ of Certiorari — Thomas H. Buffington, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. 21-____

In the

Supreme Court of the United States

THOMAS H. BUFFINGTON,

Petitioner,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

APPENDIX

Roman Martinez

Gregory B. in den Berken

Brent T. Murphy

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

Richard A. Samp

Counsel of Record

Kara Rollins

Mark Chenoweth

NEW CIVIL LIBERTIES

ALLIANCE

1225 19th Street, NW

Suite 450

Washington, DC 20036

(202) 869-5210

rich.samp@ncla.legal

Counsel for Petitioner

APPENDIX TABLE OF CONTENTS

Appendix A—Opinion of the United States

Court of Appeals for the Federal Circuit

(Aug. 6, 2020) .............................................................. App.1a

Appendix B—Opinion of the United States

Court of Appeals for Veterans Claims

(July 12, 2019) ........................................................... App.31a

Appendix C—Opinion of the Board of

Veterans’ Appeals (July 20, 2017) ............................. App.58a

Appendix D—Letter from Department of

Veterans Affairs to Thomas H.

Buffington informing him of start date

for disability benefits (Aug. 20, 2009) ....................... App.70a

Appendix E—Relevant Statutes and

Regulations ................................................................. App.75a

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

THOMAS H. BUFFINGTON,

Claimant-Appellant

v.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

______________________

2020-1479

______________________

Appeal from the United States Court of Appeals

for Veterans Claims in No. 17-4382, Judge Amanda L.

Meredith, Judge Joseph L. Falvey Jr., Judge William

S. Greenberg.

______________________

Decided: August 6, 2021

______________________

DORIS JOHNSON HINES, Finnegan, Henderson,

Farabow, Garrett & Dunner, LLP, Washington, DC,

argued for claimant-appellant. Also represented by

ANDREA GRACE GLOCK MILLS; BARTON F. STICHMAN,

National Veterans Legal Services Program,

Washington, DC.

2a

SHARIA ROSE, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent-appellee. Also

represented by JEFFREY B. CLARK, MARTIN F. HOCKEY,

JR., ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D.

GRIFFIN, SAMANTHA ANN SYVERSON, Office of General

Counsel, United States Department of Veterans

Affairs, Washington, DC.

RICHARD ABBOTT SAMP, New Civil Liberties

Alliance, Washington, DC, for amicus curiae New Civil

Liberties Alliance. Also represented by ADITYA DYNAR.

______________________

Before MOORE, Chief Judge*, LOURIE and

O’MALLEY, Circuit Judges.

Opinion for the court filed by Chief Judge MOORE.

Dissenting opinion filed by Circuit Judge O’MALLEY.

MOORE, Chief Judge.

Thomas H. Buffington appeals a final decision of

the United States Court of Appeals for Veterans

Claims. Buffington v. Wilkie, 31 Vet. App. 293 (2019)

(Veterans Court Op.). Under 38 C.F.R. § 3.654(b)(2), the

Veterans Court denied Mr. Buffington an earlier

effective date for recommencement of his disability

benefits after periods in which he received active

service pay. Id. at 296. Mr. Buffington contends

*

Chief Judge Kimberly Moore assumed the position of

Chief Judge on May 22, 2021.

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§ 3.654(b)(2) conflicts with and is an unreasonable

interpretation of 38 U.S.C. § 5304(c). Because we hold

§ 3.654(b)(2) reasonably fills a statutory gap, we

affirm.

BACKGROUND

Mr. Buffington served on active duty in the

United States Air Force from September 1992 until

May 2000. After leaving active duty service, Mr.

Buffington sought disability benefits. The Department

of Veterans Affairs (VA) found that Mr. Buffington

suffered from service-connected tinnitus, rated his

disability at ten percent, and awarded him disability

compensation. In 2003, Mr. Buffington was recalled to

active duty in the Air National Guard. He informed the

VA of his return to active service, and the VA

discontinued his disability compensation. See 38

U.S.C. §§ 5112(b)(3), 5304(c). In 2004, Mr. Buffington

completed his term of active service. Later that year,

he was again recalled to active duty, serving until July

2005. It was not until January 2009, however, that Mr.

Buffington sought to recommence his disability

benefits. The VA determined Mr. Buffington was

entitled to compensation effective on February 1,

2008—one year before he sought recommencement. See

38 C.F.R. § 3.654(b)(2) (setting effective date for

recommencement of compensation, at the earliest, one

year before filing).

Mr. Buffington filed a Notice of Disagreement,

challenging the VA’s effective-date determination. The

VA Regional Office issued a Statement of the Case

rejecting his challenge and providing further reasoning

for the February 1, 2008 effective date. Mr. Buffington

then appealed to the Board of Veterans Appeals, which

affirmed the VA’s decision. He next appealed to the

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Veterans Court. That court held that § 3.654(b)(2) was

a valid exercise of the Secretary of Veterans Affairs

rulemaking authority and was not inconsistent with 38

U.S.C. § 5304(c). See Veterans Court Op., 31 Vet. App.

at 300–04. Mr. Buffington appeals. We have

jurisdiction under 38 U.S.C. § 7292(a).

DISCUSSION

Title 38 codifies a complex statutory scheme

aimed at providing benefits to veterans. For example,

it provides veterans with a general entitlement to

compensation “[f]or disabilit[ies] resulting from

personal injur[ies] suffered ... in [the] line of duty”

during a period of war, § 1110, or during peacetime,

§ 1131. As a shorthand, Congress refers to those

disabilities as service-connected disabilities. See 38

U.S.C. ch. 11 (“Compensation for Service-Connected

Disability or Death”). And it refers to benefits paid as

a result of service-connected disabilities as

compensation. Id. § 101(13). Title 38 also provides

pensions for veterans who served in a period of war

and for veterans who appear on the Army, Navy, Air

Force, or Coast Guard Medal of Honor Roll. See id.

§§ 1511–25.

To receive disability benefits, a veteran must

apply. Id. § 5101(a)(1)(A) (“[A] specific claim in the

form prescribed by the Secretary ... must be filed in

order for benefits to be paid or furnished to any

individual under the laws administered by the

Secretary.”). Based on that application, the VA must

determine whether the veteran has a general

entitlement to disability benefits—for example,

because he has a service-connected disability. If a

veteran has a service-connected disability, the VA

must assign him a disability rating, which corresponds

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to the amount of compensation paid. See, e.g., id.

§ 1134 (setting rates of peacetime disability

compensation by reference to § 1114, which sets those

rates for wartime disability). It must also set the

effective date for the award of benefits. Id. § 5110.

Occasionally, under the statutory framework, benefits

must be reduced or discontinued. When a veteran

returns to active service, for example, he cannot receive

both active service pay and disability compensation. Id.

§ 5304(c). When a reduction or discontinuance is in

order, § 5112 dictates how the VA must determine the

effective date for that reduction or discontinuance.

This appeal requires us to interpret

VA-administered statutes to determine the effective

date for recommencing (as opposed to awarding or

discontinuing) service-connected disability benefits

once a veteran leaves active service.1 The Secretary of

Veterans Affairs has answered that interpretive

question, promulgating 38 C.F.R. § 3.654(b)(2) through

notice-and-comment rulemaking. In such

circumstances, we apply the two-step framework set

forth in Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837.2 Step one asks

“whether Congress has directly spoken to the precise

question at issue.” Id. at 842. “If the intent of Congress

1

Mr. Buffington argues the question at issue should be

framed as whether the VA can effect a forfeiture of benefits. But

that framing assumes the interpretive conclusion.

2

Amicus New Civil Liberties Alliance (NCLA) argues the

Chevron framework should not apply. Neither party adopts this

position, see Appellant’s Br. at 7 (“This question is governed by the

two-step framework of Chevron ....”) and Appellee’s Brief at 12,

and we do not find it persuasive given the facts and arguments

presented here.

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is clear, that is the end of the matter,” and we “must

give effect to the unambiguously expressed intent of

Congress.” Id. at 842–43. If, however, “the statute is

silent or ambiguous with respect to the specific issue,”

we proceed to step two of the Chevron framework, at

which we determine “whether the agency’s answer is

based on a permissible construction of the statute.” Id.

at 843. We must defer in the face of statutory silence

because, “as a general rule, agencies have authority to

fill gaps where the statutes are silent.” Nat’l Cable &

Telecom. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327,

339 (2002) (citing Chevron, 467 U.S. at 843–44); see

also Canadian Solar, Inc. v. United States, 918 F.3d

909, 917 (Fed. Cir. 2019).

I.

At step one, we hold that Congress left a gap in

the statutory scheme. Section 5304(c) bars duplicative

compensation when a veteran receives active service

pay:

Pension, compensation, or retirement pay

on account of any person’s own service

shall not be paid to such person for any

period for which such person receives

active service pay.

38 U.S.C. § 5304(c). Thus, a veteran cannot receive

both service-connected disability payments and active

service pay. And Congress set the effective date (start

date) for discontinuing disability benefits based on

active service:

The effective date of a reduction or

discontinuance of compensation ... by

reason of receipt of active service pay or

retirement pay shall be the day before the

date such pay began.

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38 U.S.C. § 5112(b)(3). But Congress did not establish

when or under what conditions compensation

recommences once a disabled veteran leaves active

service. Nowhere in § 5304(c)’s plain terms or in the

broader statutory structure did Congress speak directly

to that issue.

The “any period” phrase in § 5304(c) does not set

the effective date for recommencing disability benefits.

Of course, the word period refers to a length of time:

here, the time during which a veteran is receiving

active service pay. And that period has a beginning

date—when active service compensation starts—and

an end date—when active service compensation ends.

But § 5304(c) does not say compensation must cease

only for that period. Congress was silent regarding

whether other conditions, such as timely filing of an

application, could justify a later effective date for any

recommencement of compensation. Congress neither

required nor prohibited consideration of such

conditions. And we must not read into § 5304(c) words

that Congress did not enact—like reading “any period”

as “only any period.” See Bates v. United States, 522

U.S. 23, 29 (1997) (“[W]e ordinarily resist reading

words or elements into a statute that do not appear on

its face.”).

Mr. Buffington argues, relying on statutory

context, that his interpretation does not read “only” (or

any other language) into § 5304(c). He claims Title 38

obligates the VA to pay compensation for

service-connected disabilities, see 38 U.S.C. § 1131;3

3

Mr. Buffington cites 38 U.S.C. § 1110 for his general

entitlement to compensation, which relates to wartime

disabilities. But because Mr. Buffington did not serve during a

period of war, id. § 1101(2), a different provision controls. See id.

8a

sets the effective date for those awards, see id. § 5110;

and provides a limited exception for when payment is

barred based on active service pay, see id. § 5304(c).

Thus, to Mr. Buffington, “compensation runs parallel

to the period of service: stopping on re-entry to active

military service and restarting at discharge from active

military service.” Appellant’s Reply Br. at 14–15

(internal quotation marks omitted).

Mr. Buffington’s concessions throughout this

case, however, undermine that position. In his opening

brief, Mr. Buffington agreed the VA can “require that

a veteran notify it that the veteran is no longer

receiving active duty pay before benefits can be paid.”

Appellant’s Br. at 32 (emphasis in original). That is,

the VA can require a veteran to apply for

recommencement of disability benefits. See 38 C.F.R.

§ 3.654(b)(2) (creating just such a requirement). And at

argument, Mr. Buffington went further. Questioned

about Mr. Buffington’s admissions in his briefing, Mr.

Buffington’s counsel conceded that “the government

can certainly require reapplication[,] ... can require a

veteran to appear for an additional medical

exam[, and] ... can reconsider the amount of disability

compensation.” See Oral Arg.4 at 4:50–5:45. Implicit in

that view is the understanding that § 5304(c) does not

create a limited exception to a general entitlement to

benefits. Instead, when a disabled veteran returns to

active service, his disability benefits are discontinued.

See 38 U.S.C. § 5112 (setting effective date for

§ 1131. Still, any differences between §§ 1110 and 1131 are

immaterial for purposes of this appeal.

4

Available at http://oralarguments.cafc.uscourts.gov/default.

aspx?fl=20-1479_05032021.mp3.

9a

“discontinuance”). After leaving active service, the

veteran can once again seek disability benefits, but

nothing in the statutory scheme speaks to when or how

those benefits are recommenced.

Mr. Buffington’s interpretation would lead to

impermissible surplusage, which is not present under

the government’s interpretation. See Nat'l Credit

Union Admin. v. First Nat'l Bank & Tr. Co., 522 U.S.

479, 500 (1998) (holding an interpretation was

“impermissible under the first step of Chevron” in part

because it created surplusage). Under Mr. Buffington’s

interpretation the word period in § 5304(c) would set

both the date for discontinuing benefits and the date

for recommencing benefits based on active service.

Congress, however, already enacted a statute that sets

the date for discontinuing benefits based on active

service. See 38 U.S.C. § 5112(b)(3). Adopting Mr.

Buffington’s construction, then, would render

§ 5112(b)(3) superfluous.

To avoid reading language into § 5304(c) and

rendering § 5112(b)(3) superfluous, we hold the

statutory scheme is silent regarding the effective date

for recommencing benefits when a disabled veteran

leaves active service.5 Since Congress has not “directly

spoken to the precise question at issue,” we must

continue on to step two. Chevron, 467 U.S. at 842.

II

At step two, we ask “whether the agency’s

answer [to the question at issue] is based on a

5

Because we hold the statutory scheme is silent, we need

not resolve the parties’ dispute regarding the pro-veteran canon.

See Terry v. Principi, 340 F.3d 1378, 1383 (Fed. Cir. 2003).

10a

permissible construction of the statute.” Id. at 843.

Filling the statutory gap, the Secretary promulgated

38 C.F.R. § 3.654(b)(2). In relevant part, that

regulation defines the effective date for any

recommencement of benefits after a disabled veteran

leaves active service:

Payments, if otherwise in order, will be

resumed effective the day following

release from active duty if claim for

recommencement of payments is received

within 1 year from the date of such

release: otherwise payments will be

resumed effective 1 year prior to the date

of receipt of a new claim.

Id.

As a preliminary matter, Mr. Buffington

challenges the Secretary’s statutory authority to

promulgate 38 C.F.R. § 3.654(b)(2). But the Secretary

was within the scope of his authority “to prescribe all

rules and regulations which are necessary or

appropriate to carry out the laws administered by the

Department and are consistent with those laws.” 38

U.S.C. § 501(a). That authority gives the Secretary

power to fill gaps in the veterans’ benefits scheme. See

Contreras v. United States, 215 F.3d 1267, 1274 (Fed.

Cir. 2000) (holding grant of authority to promulgate

regulations “necessary to the administration of a

program” that an agency oversees allows the agency to

fill gaps); see also Long Island Care at Home, Ltd. v.

Coke, 551 U.S. 158, 165 (2007) (holding authorization

for Secretary of Labor to “prescribe necessary rules,

regulations, and orders” provided the Department of

Labor “with the power to fill [explicit statutory] gaps”).

Accordingly, the Secretary had power to fill the gap in

11a

§ 5304(c) regarding the effective date of

recommencement with a reasonable regulation.

And § 3.654(b)(2) is a reasonable gap-filling

regulation. Section 3.654(b)(2) encourages veterans to

seek recommencement of disability benefits in a timely

fashion, but it always provides a veteran with some

compensation. If a veteran seeks recommencement

within a year of his release from active service, he is

entitled to benefits effective on the day after he left

service. If he seeks benefits later, he is entitled to

compensation effective one year before his filing date.

By incentivizing early filing, § 3.654(b)(2) promotes the

efficient administration of benefits, but it does not

promote efficiency at all costs. Mr. Buffington does not

explain how this incentive structure is unreasonable.

As we have noted, “the VA is in a better position than

this court to evaluate inefficiencies in its system.”

Veterans Just. Grp., LLC v. Sec’y of Veterans Affs., 818

F.3d 1336, 1351 (Fed. Cir. 2016). It is likewise

reasonable for the VA to require timely reapplication,

since a disability may improve or worsen over time. See

38 C.F.R. § 3.654(b)(2) (providing that “[c]ompensation

will be authorized based on the degree of disability

found to exist at the time the award is resumed”).6

6

Mr. Buffington argues that § 3.654(b)(2) leads to an

absurd result because, in at least one case where the veteran

never notified the agency of her active service and thus received

duplicative benefits, that veteran was only forced to return the

duplicative benefits. Appellant’s Br. 43–46. Mr. Buffington’s

fairness argument does not bear on the reasonableness of

§ 3.654(b)(2), but rather on the VA’s failure to require regulatory

compliance in that case.

12a

CONCLUSION

Because the VA reasonably filled a statutory gap

when promulgating 38 C.F.R. § 3.654(b)(2), we must

defer to that regulation. Because the Veterans Court

recognized the statutory gap and afforded the VA’s

regulation appropriate deference, we affirm.

AFFIRMED

COSTS

No costs.

O'MALLEY, Circuit Judge, dissenting.

It is undisputed that Thomas Buffington suffers

from tinnitus, arising from his active military duty in

the United States Air Force from 1992 through May

2000. Because of that disability, he was awarded

disability compensation, with an effective date

corresponding to the end of his active duty service. It is

also undisputed that, when he was called back to

active duty in July 2003—and began receiving active

duty pay—his disability payments ceased. And it is

undisputed that, when Mr. Buffington finished serving

his country yet again in July 2005, he continued to

suffer from tinnitus. Despite his continuing disability,

however, his disability payments were not restored

until February 1, 2008. The majority endorses the

Department of Veterans Affairs’ treatment of Mr.

Buffington. I do not. I, thus, respectfully dissent.

The majority claims it reaches its conclusion by

finding a “statutory gap” in those statutory provisions

governing payments to veterans at step one of its

Chevron analysis. It claims it has found this gap

without needing to determine whether the governing

provision—38 U.S.C. § 5304(c)—is ambiguous. Turning

13a

to step two of Chevron, it then finds that the VA acted

reasonably when it filled that supposed gap with

regulations (1) requiring a veteran to go through the

process of reapplying for disability benefits and

requalifying for the very benefits for which he was

already deemed qualified; and (2) setting the effective

date of the resumption of benefits by reference to that

reapplication process, and not by reference to the end

of his receipt of active duty pay. I disagree on both

steps of that analysis.

I.

A. There is no “statutory gap”

As noted, at Chevron step one the majority does

not conclude that 38 U.S.C. § 5304 is ambiguous. It,

instead, finds that, while Congress made clear during

what period disability payments cannot be paid, it

forgot to mention when they would restart. This

oversight, according to the majority, gave the VA the

right to legislate via regulation the time period and

circumstances under which such payments would

recommence—the right to fill the congressionally

created “gap.”

The majority puts the cart before the horse in its

Chevron analysis. Rather than apply traditional tools

of statutory construction to determine whether there is

an ambiguity in § 5304(c), it fast-tracks past this step

and finds what it believes is a statutory gap that the

agency may fill. The Supreme Court made clear in

Chevron, however, that step one always begins by

asking whether the statute at issue is ambiguous.

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 842–43 (1984) (“First, always, is the

question whether Congress has directly spoken to the

14a

precise question at issue. If the intent of Congress is

clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the

unambiguously expressed intent of Congress.”). It is

only after finding a statutory ambiguity that courts

may consider the possibility that Congress delegated to

an agency the power to fill a gap. See United States v.

Home Concrete & Supply, LLC, 566 U.S. 478, 488

(2012) (“Chevron and later cases find in unambiguous

language a clear sign that Congress did not delegate

gap-filling authority to an agency; and they find in

ambiguous language at least a presumptive indication

that Congress did delegate that gap-filling authority.”)

(emphasis in original). The majority may not avoid

determining whether § 5304(c) is ambiguous. Instead,

it must first focus on whether there is an ambiguity in

the relevant statute, taking into account any purported

statutory silence in the process.

But, a plain reading of the relevant portions of

the governing statute and careful consideration of the

context in which they appear demonstrate that there

is no statutory gap to fill. Section 5304(c)’s text and

context militate against finding an ambiguity in the

statute. To begin, statutory silence does not always

create a statutory gap for the purposes of Chevron’s

step one analysis. It, instead, often indicates the

“rather unremarkable proposition that sometimes

statutory silence, when viewed in context, is best

interpreted as limiting agency discretion.” Entergy

Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223 (2009)

(citing Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S.

457 (2001)); see also Burns v. United States, 501 U.S.

129, 136 (1991) (“[N]ot every silence is pregnant.”)

(citation omitted), abrogated on other grounds by

15a

Dillon v. United States, 560 U.S. 817 (2010). Indeed,

“[a]n inference drawn from congressional silence

certainly cannot be credited when it is contrary to all

other textual and contextual evidence of congressional

intent.” Burns, 501 U.S. at 136. Here, congressional

intent is not difficult to divine.

38 U.S.C. §§ 1110 and 1131 state that “the

United States will pay to any veteran” compensation

for service-connected disabilities.1 Section 5110

contains numerous provisions regarding precisely

when such disability payments are to begin, and after

which those payments “will” be paid. Section 5110(a) of

Title 38 establishes the general rule that effective start

dates of veterans’ benefits will not begin “earlier than

the date of receipt” of the veteran’s application for

benefits. 38 U.S.C. § 5110(a)(1). Section 5110 is subject

to certain exceptions, all of which are designed to

increase the benefits to veterans in certain

circumstances. See, e.g., 38 U.S.C. §§ 5110(b)(1)–(b)(2)

(establishing effective date based on variant of

one-year look back period for disability benefits after

veterans are discharged from active duty); id.

§ 5110(b)(3) (establishing a one-year look back period

when veterans submit claims for increase); id.

§ 5110(b)(4) (establishing a one-year look back period

when veterans submit claims for disability pension);

id. § 5110(d) (establishing a one-year look back period

for claims submitted for death, dependency, and

indemnity compensation); id. § 5110(g) (establishing a

1

As the majority notes, Mr. Buffington’s disability

payments were authorized pursuant to 38 U.S.C. § 1131, not

§ 1110. As the majority also notes, however, there is no material

difference between the provisions as it relates to the issue before

us.

16a

one-year look back period for claims arising from

liberalizing law or new administrative issue). In other

words, Congress knew how to set dates for

commencement of benefits when it deemed it necessary

to do so, and, when doing so, it always assured that

benefits would commence sooner rather than later.

38 U.S.C. § 5304(c) is an exception to the

continuous payment obligation, calling for a pause in

such payments while a veteran is receiving active duty

pay. Indeed, it calls for a pause in all retirement and

pension benefits while active duty pay is received. 2 38

U.S.C. § 5112(b)(3) provides that all such post-active

duty payments shall cease the day before any active

duty pay begins. While it is true that § 5304(c) does not

mention a recommencement date, it is clear that

Congress only wanted a veteran’s benefits to

discontinue for “any period for which such person

receives active service pay.” 38 U.S.C. § 5304(c)

(emphasis added). While Congress did not explicitly

state in § 5304(c) that disability and retirement

benefits will recommence only upon active duty

ceasing, it did not need to; the contrapositive of this

statutory section says as much. See id. (noting that

“any period” of active service pay will result in a loss of

disability benefits). That § 5304(c) is silent on when

benefits will “recommence” is of no moment. The plain

text of Title 38 indicates that Congress intended for

veterans’ benefits to discontinue during “any period” of

active service pay. Outside this “period,” the veteran

2

Technically, veterans have a choice to continue disability and

other retirement payments during active duty or receive active duty pay. The

point is that they cannot receive both.

17a

remains entitled to the benefits for which he originally

qualified.

Reading § 5304(c) as the majority does means

the veteran loses his original effective start date for

disability benefits and must be assigned a later start

date, depending on when he “reapplies” for benefits.

See Maj. Op. at 1365–66 (“[W]hen a disabled veteran

returns to active service, his disability benefits are

discontinued. ... After leaving active service, the

veteran can once again seek disability benefits ....”).

Indeed, because § 5112(b)(3), like § 5304(c), also

applies to all disability compensation, dependency and

indemnity compensation and pension payments, the

majority’s reading of § 5304(c) would mean that none

of those payments would automatically recommence.

That means that those veterans who return from

temporary active duty would not only receive no active

duty pay, but, absent strict compliance with 38 C.F.R.

§ 3.654(b)(2), would receive no disability benefits, no

pension, and no other retirement compensation during

at least some post-active duty period, despite

previously having been deemed qualified for such

payments. That cannot be right. As it relates to

disability benefits specifically, it is not right because it

flies in the face of § 1131’s directive that disability

payments will be paid once the criteria therefore is

satisfied. Notably, the government does not contend

that active duty pay continues until it receives notice

that active duty has ended or a veteran has reapplied

for his other benefits. As to these payments, the

Secretary apparently has no problem giving the “any

period” language in § 5304(c) its plain and ordinary

meaning.

The broader context in which these provisions

were enacted confirms the conclusion that disability

18a

payments should recommence effective the day after

active duty pay ceases. According to the Supreme

Court, Congress’s solicitude towards veterans is

“plainly reflected in the [Veterans Judicial Review Act

(“VJRA”)], as well as subsequent laws that place a

thumb on the scale in the veteran's favor in the course

of administrative and judicial review of VA decisions.”

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,

440 (2011). In legislating the VJRA, Congress noted

that it “has designed and fully intends to maintain a

beneficial non-adversarial system of veterans benefits.”

H.R. Rep. No. 100–963, at 13 (1988), reprinted in 1988

U.S.C.C.A.N. 5782, 5794–95. Indeed, the VJRA is

replete with provisions designed to make it easier for

veterans to obtain benefits and to challenge denial of

such benefits. The development of this veteran-friendly

scheme and its remedial nature was the very raison

d’être for passage of the VJRA.

In addition to the VJRA, one such “subsequent

law[ ]” Congress passed to favor veterans comprises the

Veterans Appeals Improvement and Modernization Act

of 2017 (“AMA”). Veterans Appeals Improvement and

Modernization Act of 2017, Pub. L. No. 115–55, 131

Stat. 1105 (codified in scattered sections of 38 U.S.C.).

Section 5110(a)(2), which was enacted as part of the

AMA, amended § 5110. See id. § (2)(l)(1), 131 Stat.

1110 (codified as amended at § 5110(a)). Prior to the

AMA, effective dates for disability benefits were based

on the “original claim, a claim reopened after final

adjudication, or a claim for increase of [benefits].” 38

U.S.C. § 5110(a) (2012). The practical reality of this

scheme meant that veterans who appealed their

benefits claims by either reopening them or filing for

an increase in benefits would be subject to the VA’s

“legacy appeals” process. Legacy appeals were

19a

notoriously fraught with lengthy wait times that risked

greatly delaying a veteran’s effective start date. See

H.R. Rep. No. 115-135, at 4–5 (2017) (noting the

increasing number of undecided VA legacy appeals and

the long wait times for a final decision); see also

Legislative Hearing on the Veterans Appeals

Improvement and Modernization Act of 2017 Before the

H. Comm. on Veterans’ Affs., 115th Cong. 15–16 (2017).

The AMA, however, amended § 5110(a) in two

salient ways. First, § 5110(a)(1) now centered the

effective start date of benefits around “initial” or

“supplemental” claims. By no longer tying effective

dates to when veterans reopened their claims or filed

for increases in benefits, Congress signaled its desire

for veterans to receive the earliest effective start date

possible. Second, Congress added § 5110(a)(2), which

states: “[f]or purposes of determining the effective date

of an award under this section, the date of application

shall be considered the date of the filing of the initial

application for a benefit if the claim is continuously

pursued.” 38 U.S.C. § 5110(a)(2) (emphasis added).

Within this same subsection, Congress delineated

various ways in which veterans could “continuously

pursue[ ]” their claims and receive the earliest effective

date possible. Id. § 5110(a)(2)(A)–(E). By effectively

providing veterans with more options to “continuously

pursue[ ]” their claims while receiving the earliest

effective date possible, Congress again signaled its

intention to safeguard effective start dates.

Nowhere in the AMA, VJRA, or Title 38 did

Congress express an intention for disabled veterans to

lose their original effective start dates upon return to

active duty. Rather, the AMA demonstrates that

Congress prioritized preserving a veteran’s earliest

possible effective start date. The majority’s decision is

20a

therefore irreconcilable with the congressional intent

espoused in the AMA because it risks veterans

receiving later effective start dates than were

originally assigned. I find it implausible that Congress

wanted disabled veterans who reenter the service of

their country to be required to “reapply” for the same

benefits to which they previously were entitled, and

also risk having their previous effective start dates

superseded by a new, later date if they do not reapply

within the narrow timeframe set forth in 38 C.F.R.

§ 3.654(b)(2).

The majority’s reading of “any period” in

§ 5304(c) also defies logic. The majority appears to

agree that § 5304(c) prohibits veterans from receiving

disability pay during “any period” of active service pay.

See Maj. Op. at 1365 (“The ‘any period’ phrase in

§ 5304(c) ... refers to a length of time: here, the time

during which a veteran is receiving active service

pay.”). This is correct. Where the majority errs,

however, is in its assertion that Ҥ 5304(c) does not say

compensation must cease only for that period. Congress

was silent regarding whether other conditions, such as

timely refiling of an application, could justify a later

effective date.” Id. (emphasis in original). In legislating

§ 5304(c), Congress chose to use classic conditional

logic: “any period” during which a veteran receives

active service pay will result in the veteran not

receiving disability benefits. 38 U.S.C. § 5304(c).

Receiving active service pay, then, sufficiently

guarantees the necessary condition of not receiving

disability benefits. The majority’s insistence that other

sufficient conditions, such as “timely refiling of an

application,” could also guarantee the loss of disability

benefits improperly imports surplusage into § 5304(c)’s

text. “[I]n general, ‘a matter not covered is to be

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treated as not covered’—a principle ‘so obvious that it

seems absurd to recite it.’” GE Energy Power

Conversion France SAS, Corp. v. Outokumpu Stainless

USA, LLC, 140 S. Ct. 1637, 1645 (2020) (citing A.

Scalia & B. Garner, Reading Law: The Interpretation

of Legal Texts 93 (2012)). Where Congress creates

express exceptions courts should not elaborate

unprovided for exceptions into the text. Reading Law

at § 8 (citing Petteys v. Butler, 367 F.2d 528 (8th Cir.

1966) (Blackmun, J., dissenting)).

To make matters worse, despite initially

appearing to agree that § 5304(c) prohibits veterans

from receiving disability pay during “any period” of

active service pay, the natural consequence of the

majority’s interpretation contravenes the statutory

text. In addition to receiving active service pay, the

majority contends that “other conditions, such as

timely refiling of an application, could justify a later

effective date.” Maj. Op. at 1365. This means, then,

that “any period” encompasses more than just the time

period in which a veteran receives active service pay.

Under the majority's reading of § 5304(c), “any period”

must now encompass the period of active service pay

plus the period in which the veteran has yet to reapply

for benefits upon returning from active duty. As

discussed above, “a matter not covered is to be treated

as not covered.” And, exceptions are to be deemed

exclusive unless clear language to the contrary says

otherwise. The majority errs by ignoring both of these

principles of statutory construction.

B. No “concessions” by Mr. Buffington’s counsel justify

the majority’s statutory interpretation

The majority contends that the following

“concessions” made by Mr. Buffington during oral

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argument undermine his assertion that veterans’

disability benefits should be paid continuously, with a

pause only under certain circumstances: (1) the VA

may require additional medical exams; (2) the VA may

“reconsider” the amount of benefits owed to a veteran

based on such “reexaminations”; and (3) the VA can

require “reapplication” for the “recommencement” of

benefits following a veteran's return from active duty.

See Maj. Op. at 1365–66. According to the majority, the

VA’s ability to independently discontinue a veteran’s

benefits award based on these three circumstances

demonstrates that Ҥ 5304(c) does not create a limited

exception to a general entitlement to benefits.” Id.

The majority’s reliance on these supposed

“concessions” is misplaced. First, our duty is to review

judgments, not counsel’s comments during oral

argument. And, where that judgment was based on

statutory interpretation, nothing counsel could say

could impact what the statute says, or does not say.

Second, there is nothing meaningful about the fact that

Mr. Buffington’s counsel has no problem with the VA

occasionally reassessing the scope of any disability

award or with requiring a veteran to notify the VA that

his active duty service has ended, just as the veteran is

required to notify the VA that his active duty pay

recommenced.

While there is no statutory provision granting

the VA the right to conduct additional medical exams

or to reconsider benefits awards, that authority arises

from the VA’s obligation to set the percentage of

disability in the first instance. 38 C.F.R. § 3.327 states

that the VA may require reexaminations whenever it

“determines there is a need to verify either the

continued existence or the current severity of a

disability.” 38 C.F.R. § 3.327(a). Though this VA

23a

regulation does not use the word “reconsider,” it

intimates that the VA may adjust the amount of

benefits owed to a veteran if the disability has changed

since the initial award. See id. (“Generally,

reexaminations will be required if it is likely that a

disability has improved, or if evidence indicates there

has been a material change in a disability or that the

current rating may be incorrect.”). This provision is

unrelated to any pause in payment caused by active

duty service.

This regulatory authority does nothing to

undermine the notion that veterans’ benefits should be

continuously paid. Rather, § 3.327(a) simply makes

clear that there are two levels of inquiry surrounding

entitlement to veterans’ benefits: (1) whether the

veteran has a service-connected disability that

qualifies for benefits; and (2) if so, what the level of

disability is for ratings purposes. Section 3.327(a)

involves the latter inquiry as it empowers the VA to

reassess a veteran’s disability for ratings purposes. We

are concerned here, by contrast, with the former

inquiry. Once a veteran has established a

service-connected disability, he is entitled to benefits.

Though the benefits ratings level may change

depending on the disability, we are concerned here

with the continuity of the underlying entitlement.

Section 3.327(a) is thus irrelevant to our discussion.

The majority’s reliance on the VA’s

“reapplication” requirement is similarly misplaced.

Neither Title 38 nor the corresponding VA regulations

speak to reapplying for veterans’ benefits. Pursuant to

38 C.F.R. § 3.1(p), claims exist in two forms: (1) an

“initial” claim; or (2) a “supplemental” claim. There are

three types of initial claims: (1) an original claim,

which is the first the VA receives; (2) a new claim for

24a

different benefits relating to the veteran's service; and

(3) a claim for an increase in the benefit amount for

either type of claim. See id. §§ 3.1(p)(i)–(ii), 3.160(b). A

supplemental claim is filed when a veteran disagrees

with a prior VA decision. See id. §§ 3.1(p)(2), 3.2501. As

discussed above, 38 U.S.C. § 5110(a) ensures that

initial and supplemental claims receive the earliest

possible effective start dates. The concept of a veteran

“reapplying” for the same benefits to which he was

previously entitled does not fit within any of these

definitions. And, to the extent 38 C.F.R. § 3.654

requires reapplication vis-à-vis its focus on

“recommencement” of benefits, it is contrary to the

plain text of §§ 5304(c) and 1131, as discussed above.

What Mr. Buffington’s counsel agreed was

reasonable is a requirement that the veteran give

notice to the VA of the date his active duty service

ended so that the VA will know to recommence benefits

as of that date. This is consistent with how the VA

treated Mr. Buffington’s notice of his return to active

duty. Mr. Buffington notified the VA of his return to

service in August 2003. In October 2003, the VA

informed Mr. Buffington that his disability

compensation was discontinued effective July 20,

2003—the day before his return to active duty. In other

words, the VA did not allow his disability pay to

continue until it received notice of his change in status;

once it received notice, it had no problem backdating

the cessation of benefits. Mr. Buffington argues that

the VA similarly should have no problem backdating

the recommencement of benefits, once it is notified of

the date on which a veteran’s active duty ceased.

The majority’s focus on Mr. Buffington’s

concessions regarding reexamination, reconsideration,

and reapplication is simply unpersuasive. To the

25a

extent the VA implements these concepts, they do

nothing to rebut the notion that veterans’ benefits

should be continuously administered but for any period

when active duty pay is received.

C. There is no surplusage concern

The majority finally contends that reading the

“any period” language of § 5304(c) to “set both the date

for discontinuing benefits and the date for

recommencing benefits based on active service” renders

§ 5112(b)(3) superfluous. Maj. Op. at 1366. According

to the majority, Congress chose to define the effective

date of the discontinuation of benefits in § 5112(b) but

not to specify the effective date of recommencement of

disability benefits following a veteran’s period of active

service. It claims that construing § 5304(c)’s “any

period” language as setting the discontinuance and

recommencement dates of awards requires reading into

the statute a “day-before” discontinuance date and a

“day-after” recommencement date. Since Congress

already provided a “day-before” discontinuance date in

§ 5112(b)(3), the majority argues that interpreting “any

period” in § 5304(c) to include a “day-before” and a

“day-after” effective dates would create impermissible

surplusage in § 5112(b)(3).

The majority’s argument rests on a

misinterpretation of the statutory text. Section

5304(c)’s “any period” language does not create new

effective dates. As discussed above, §§ 5110 and

5112(b)(3) do this by establishing start and

discontinuance effective dates, respectively. When read

alongside § 5112(b)(3), § 5304(c) merely delineates the

period of pause in benefits, with § 5112(b)’s

discontinuance effective date giving effect to § 5304(c)’s

bar on duplicate benefits. It is notable, moreover, that

26a

§ 5112(b)(3) actually does extra work than the phrase

“any period” in § 5304(c): it sets a discontinuance date

the day before the period in § 5304(c) commences. If

anything, the existence of § 5112(b)(3) proves that

when Congress wanted to set a commencement or

recommencement date that differed from the start and

end of the “period” referenced in § 5304(c), it knew how

to do so expressly.

D. Doubt regarding any recommencement date must

be resolved in Mr. Buffington’s favor

The majority asserts that, because it finds a

“statutory gap” regarding the recommencement of

benefits, it may ignore the pro-veteran canon of

construction in its Chevron step one analysis. But that

logic does not withstand dissection. What the majority

appears to really say is that, by not expressly setting

a date for recommencement of benefits as clearly as it

did for a discontinuation of benefits, Congress gave the

VA the greenlight to finish the statute via regulation.

Calling what it finds a “statutory gap” does not alter

the reality of what the majority concludes, however, or

what the implications of that conclusion are.

As described above, the majority failed to

correctly apply Chevron’s step one analysis because it

found a statutory gap in § 5304(c) without first finding

an ambiguity. As part of a correct Chevron step one

analysis, the majority must take into account all other

traditional canons of construction along the way,

including the pro-veteran canon of construction. Cf.

Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (“Kisor II”)

(“[T]he possibility of deference can arise only if a

regulation is genuinely ambiguous. And when we use

that term, we mean it—genuinely ambiguous, even

27a

after a court has resorted to all the standard tools of

interpretation.”).

The majority cites Terry v. Principi, 340 F.3d

1378, 1383 (Fed. Cir. 2003) as support for its decision

to jettison any discussion of Brown v. Gardner, 513

U.S. 115 (1994) and the presumption in favor of

veteran-friendly statutory interpretations Gardner

creates. But Terry is materially distinguishable. Terry

expressly found that the statute at issue was

unambiguous; that it was not open to any interpretive

doubt once its terms were given their common and

ordinary meaning. See Terry, 340 F.3d at 1383. It

found that Congress gave the VA the right to regulate

so as to give effect to that unambiguous statutory

scheme.

That is very different from what the majority

does here. It does not say that Congress

unambiguously required that disability benefits end,

rather than pause, and unambiguously authorized the

VA to require veterans to go through the onerous

disability application process anew merely because

they answered the call to return to active duty. It

simply finds a silence that needs filling. But, to the

extent there is any silence, it is our job to interpret

what that silence means in the first instance, not the

VA’s.

On the way to resolving that question, to the

extent any interpretive doubt remains, we must apply

the Gardner presumption and resolve any ambiguity

about what Congress meant in Mr. Buffington’s favor.

See Kisor II, 139 S. Ct. at 2414; see also Henderson, 562

U.S. at 441 (“We have long applied ‘the canon that

provisions for benefits to members of the Armed

Services are to be construed in the beneficiaries’

favor.’”) (citing King v. St. Vincent’s Hosp., 502 U.S.

28a

215, 220–21, n.9 (1991)). Even if its use is to be limited

to circumstances in which interpretive doubt remains

after considering various other tools of construction

during the step one Chevron analysis, see Kisor v.

McDonough, 995 F.3d 1316 (Fed. Cir. 2021) (“Kisor

IV”), it remains an interpretive tool in the court’s

statutory construction toolbox that is to be employed

before resorting to Chevron deference, see Kisor II, 139

S. Ct. at 2415 (“[B]efore concluding that a rule is

genuinely ambiguous, a court must exhaust all the

‘traditional tools’ of construction.”); see also Arangure

v. Whitaker, 911 F.3d 333, 346 (6th Cir. 2018) (noting

that the Supreme Court applies a “canons first” before

deference approach to Chevron, even considering

policy-based or normative canons at Chevron step one);

see also Kenneth A. Bamberger, Normative Canons in

the Review of Administrative Policymaking, 118 Yale

L.J. 64, 77 (2008) (“[C]anons trump deference.”).3 The

majority cannot avoid addressing the Gardner

presumption by avoiding determining whether

§ 5304(c) is ambiguous. To do so is to ignore our job

under Chevron. As noted above, there is nothing

ambiguous about the “any period” language in

§ 5304(c).

II.

After finding a gap in § 5304(c)’s statutory text,

the majority moves on to Chevron step two. The

majority concludes that 38 C.F.R. § 3.654(b)(2) is a

3

To the extent this court has previously placed

consideration of the Gardner presumption after considerations of

deference, Kisor II made clear that the inquiry is to be done in the

reverse order.

29a

reasonable gap-filling measure because it “incentivizes

early filing” of recommencement of benefits, thereby

promoting efficiency within the VA. Maj. Op. at 1367.

But requiring veterans to reapply for benefits to which

they previously were entitled seems anything but

efficient. If efficiency is paramount, then interpreting

§ 5304(c) as enacting a pause in benefits for “any

period” during which a veteran returns to active duty

better achieves that goal.

The majority also reasons that 38 C.F.R.

§ 3.654(b)(2)’s requirement of “timely reapplication” for

benefits is reasonable because a veteran’s “disability

may improve or worsen over time.” Id. Impliedly, the

“reasonable” functions served by “reapplication” for

benefits involve modifying the amount of benefits

according to the severity of the veteran’s disability.

As noted above, several other regulatory and

statutory mechanisms, however, serve these functions.

The VA uses reexaminations to monitor the changing

levels of a veteran’s disability and to adjust the award

amount based on the disability rating. See 38 C.F.R.

§ 3.327(a). And, in the event of a veteran’s disability

worsening, 38 U.S.C. § 5110(b)(3) allows veterans to

file claims for increased awards. The means of

addressing different disability ratings are thus already

baked into the statutory and regulatory framework.

They should not muddy our analysis, which focuses on

whether 38 C.F.R. § 3.654(b)(2)’s complex benefits

scheme comports with the statutory text of Title 38’s

effective start and discontinuance dates—as well as

any pauses pursuant to § 5304(c)’s “any period”

language.

Quite simply, 38 C.F.R. § 3.654(b)(2) serves no

purpose other than to deny disability benefits (and

other critical retirement benefits) to veterans entitled

30a

to them solely because these men and women answered

the call to return to active duty. That is wholly

inconsistent with the beneficent scheme in which the

relevant statutory provisions appear and with the

congressional intent behind both the VJRA and the

AMA. I dissent from the majority’s endorsement of this

offensive regulation.

31a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

No. 17-4382

THOMAS H. BUFFINGTON, Appellant,

v.

ROBERT L. WILKIE,

Secretary of Veterans Affairs, Appellee.

Argued April 10, 2019

Decided July 12, 2019

On Appeal from the Board of Veterans’ Appeals

Attorneys and Law Firms

Stacy A. Tromble, with whom Raymond J. Kim and

Barton F. Stichman were on the brief, all of

Washington, D.C., for the appellant.

Debra L. Bernal, with whom Catherine C. Mitrano,

Acting General Counsel; Mary Ann Flynn, Chief

Counsel; Joan E. Moriarty, Deputy Chief Counsel; and

Michael M. Epsten, Non-Attorney Practitioner, were on

the brief, all of Washington, D.C., for the appellee.

Before GREENBERG, MEREDITH, and FALVEY,

Judges.

MEREDITH, Judge, filed the opinion of the Court.

GREENBERG, Judge, filed a dissenting opinion.

32a

MEREDITH, Judge: The appellant, Thomas H.

Buffington, through counsel appeals a July 20, 2017,

Board of Veterans’ Appeals (Board) decision that

denied entitlement to an effective date earlier than

February 1, 2008, for the reinstatement of VA benefits.

Record (R.) at 1-13. This appeal is timely, and the

Court has jurisdiction to review the Board’s decision

pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This

matter was referred to a panel of the Court to address

whether the Secretary’s regulation, 38 C.F.R.

§ 3.654(b)(2), which governs the effective date for the

recommencement of VA benefits following a period of

active duty, is inconsistent with 38 U.S.C. § 5304(c),

which prohibits concurrent receipt of active service pay

and pension, compensation, or retirement pay. For the

reasons discussed below, the Court holds that

§ 3.654(b)(2) is a valid exercise of the Secretary’s broad

rulemaking authority, pursuant to 38 U.S.C. § 501, to

issue regulations necessary to carry out the laws

administered by VA and is not inconsistent with 38

U.S.C. § 5304(c). Accordingly, the Court will affirm the

Board’s decision.

I. BACKGROUND

The appellant served on active duty in the U.S.

Air Force from September 1992 to May 2000, and in

the Air National Guard from July 2003 to June 2004,

from November 2004 to July 2005, in December 2009,

and from February 2016 to May 2016. R. at 14-21. In

March 2002, he was granted entitlement to VA

disability compensation for tinnitus, rated 10%

disabling. R. at 1261-64, 1272-78. The appellant

submitted a VA Form 21-8951, Notice of Waiver of VA

Compensation or Pension to Receive Military Pay and

Allowances, in August 2003. R. at 1233. This form

33a

reflects that he elected to receive military pay and

allowances for the performance of active and inactive

duty in lieu of VA benefits and provides that the

“waiver will remain in effect, while [he was] entitled to

receive VA disability payments, unless [he] notif[ies]

VA otherwise in writing.” Id.

In October 2003, VA advised him that it was

proposing to terminate his VA benefits, effective July

20, 2003, because his National Guard unit had been

activated on July 21, 2003. R. at 1229. In response, the

appellant executed and submitted VA Form 21-8951-2,

in which he again elected to waive VA benefits in lieu

of military pay. R. at 1224-25. In December 2003, VA

informed him that it had stopped his benefits the day

before he was recalled to active duty. R. at 1222-23.

The letter further instructed: “When you have been

released from active duty, please provide our office

with a copy of your DD[-]214, so that we may

re[ ]instate your benefits.” R. at 1222.

Following two periods of active duty—July 2003

to June 2004, and November 2004 to July 2005—in

January 2009, the appellant requested that his

benefits be reinstated. R. at 1210. In August 2009, a

VA regional office (RO) reinstated his VA disability

compensation, effective February 1, 2008. R. at

1196-99. The RO informed him that, in December

2003, “[we ... told you to provide us with copies of your

DD Form 214[ ] upon your release from active duty so

that we could re[ ]instate your benefits.” R. at 1196.

The RO then explained: “We received your request for

the reinstatement of your VA [compensation benefits

more than [1] year after your release from active duty.

By law we are only permitted to make payments

retroactive to [1] year prior to the date we received

your request.” R. at 1197.

34a

The appellant filed a Notice of Disagreement

(NOD), asserting that the RO’s December 2003 letter

“did not address the [1-]year requirement for informing

... VA of [his] release from active duty,” R. at 1193, and

he perfected an appeal to the Board, R. at 1153-55,

1159-81. He also testified at a November 2015 Board

hearing that, in 2003, VA did not clarify that there was

a time line for when he needed to submit his DD-214s

to reinstate benefits. R. at 643-44. He explained that,

between 2003 and 2009, he had three different

activations and “kind of forgot about it.” R. at 643. He

said: “I'm in the Guard and it was kind of like my

full-time job.” Id.

In the July 20, 2017, decision on appeal, the

Board concluded, as a matter of law, that VA cannot

resume payment of the appellant’s benefits more than

1 year prior to the date of his claim for reinstatement,

which was received on January 20, 2009. R. at 7-9

(citing 38 U.S.C. § 5304(c), 38 C.F.R. §§ 3.31,

3.654(b)(2) (2017)). Regarding the appellant’s

contention that VA did not provide notice as to the

time to submit copies of his DD-214s, the Board found

that the VA Form 21-8951, submitted by him in

August 2003, and the RO’s December 2003 letter

“clearly informed [him] that the consequence of failing

to notify VA of his cancelling his waiver of VA benefits

would be the continued waiver of those benefits.” R. at

9-10. Thus, applying § 3.654(b)(2) to the undisputed

facts, the Board denied an effective date earlier than

February 1, 2008, for the reinstatement of VA benefits.

R. at 1-13. This appeal followed.

35a

II. ANALYSIS

A. The Parties’ Arguments

The appellant argues that the language of 38

U.S.C. § 5304(c) is clear—VA must “withhold or

suspend a veteran’s benefits only ‘for any period for

which such person receives active service pay.’”

Appellant’s Brief (Br.) at 6 (quoting 38 U.S.C.

§ 5304(c)). He asserts that § 3.654(b)(2) is inconsistent

with the statute because section 5304(c) “does not

predicate payment or reinstatement of benefits upon

notice by the veteran.” Id. at 10. He further asserts

that reading section 5304(c) in the context of 38 U.S.C.

§ 1110(a), which provides that VA “will pay” disability

compensation benefits once service connection is

established, demonstrates that “Congress has

prohibited VA from withholding or suspending benefits

due to a veteran’s receipt of active pay during any

period ... section 5304(c) does not encompass.” Id. at 9.

He therefore maintains that the regulation is

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law, and seeks

reversal of the Board’s decision denying an effective

date earlier than February 1, 2008. Id. at 10-11.

In the alternative, he argues that equitable

tolling is warranted because “the Board treated

[§] 3.654(b)(2) as a statute of limitations,” and VA

effectively misled him into believing that there was no

deadline to notify VA that he had been released from

active duty. Id. at 13. Also in the alternative, he argues

that, because he has a property interest in VA benefits

and he relied to his detriment on the allegedly

misleading notice, VA violated his constitutional right

to due process. Id. at 14-16.

36a

The Secretary argues that VA promulgated

§ 3.654(b)(2) pursuant to his broad congressional

authority under 38 U.S.C. § 501 to “ ‘prescribe all rules

and regulations which are necessary or appropriate to

carry out the laws administered by the Department

and are consistent with those laws.’ ” Secretary’s Br. at

6 (quoting 38 U.S.C. § 501). He asserts that section

5304(c) does not address the recommencement of

payments; rather, “Congress unambiguously delegated

the authority to create the procedural structure to

prevent duplication of benefits to VA.” Id. at 9. In that

regard, he maintains that the regulation “effectively

establishes ‘the nature of proof and evidence and the

method of taking and furnishing them’ for purposes of

resumption of benefits.” Id. at 10 (quoting 38 U.S.C.

§ 501(a)). The Secretary further maintains that, when

sections 5304 and 1110 are read together, a gap

remains, and VA’s regulation should be afforded

deference. Secretary’s Br. at 11-12 (citing Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 843 (1984)).

In response to the appellant’s argument for

equitable tolling, the Secretary asserts that the

doctrine is not applicable to § 3.654(b)(2) because the

regulation is not a statute of limitations; there is no

filing deadline to toll. Id. at 16-18. He also asserts that

the Board did not “treat” the regulation as a statute of

limitations and, in either event, the appellant fails to

demonstrate that VA provided misleading notice. Id. at

18-20. The Secretary similarly maintains that the

appellant’s due process argument must fail because he

has not demonstrated that VA provided misleading

notice or that he relied to his detriment on the notice.

Id. at 20-22. Finally, he avers in the alternative that,

even assuming the notice was improper, the appellant

37a

is charged with knowledge of the regulatory

requirements. Id. at 22-23 (citing Morris v. Derwinski,

1 Vet.App. 260, 265 (1991)).

In his reply brief, the appellant responds that

the Secretary’s argument would lead to an absurd

result—that the Secretary could promulgate

regulations pursuant to section 501, even though the

“regulation conflicts with other statutes with which the

Secretary is obligated to comply.” Reply Br. at 2-3. He

asserts that there is no gap to fill; rather,

“[§] 3.654(b)(2)’s [1]-year requirement ... imposes on

veterans a requirement that the relevant statutes

simply do not contain .... [and] violates VA’s obligation

to compensate veterans who are not on active duty for

their service-connected disabilities.” Id. at 3-4. The

appellant maintains that he was effectively misled

regarding the time to file a claim to reinstate benefits

because the 2003 letter did not include information

regarding the 1-year requirement and, consequently,

the Court should reverse the Board’s decision on the

grounds of equitable tolling or a violation of his right

to due process. Id. at 6-13. Regarding notice, he

contends that the Secretary’s reliance on Morris is

misplaced because, in that case, the veteran received

proper notice, whereas here, the notice effectively

misled him as to what was required to reinstate his

benefits. Id.

Prior to oral argument, the appellant also

submitted a Notice of Supplemental Authorities,

consisting of six Board decisions dated from February

2015 to December 2018. The Board decisions

essentially reflect that, if a veteran erroneously

receives disability compensation and active duty pay or

military drill pay, VA may recoup the compensation

benefits to which the veteran was not entitled, i.e., for

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the period beginning on entry to active service and

ending upon the release from active duty. See, e.g.,

BVA 12-08 113 (Dec. 19, 2018). At oral argument, the

appellant maintained that these decisions demonstrate

that VA’s regulation is arbitrary and capricious. Oral

Argument at 23:30-23:40, Buffington v. Wilkie, U.S.

Vet. App. No. 17-4383 (oral argument held Apr. 10,

2019). He argued that the decisions reflect that

veterans who fail to inform VA of their return to active

duty are treated better than veterans, like himself,

whom he asserts are “penalized” for doing the right

thing. Id. at 24:20-24:50. He explained that, had he

received dual compensation, VA would only recoup the

compensation paid during his period of active duty; but

now, § 3.654(b)(2) operates to limit his VA

compensation to 1 year prior to his claim for

recommencement. Id. at 23:30-24:50.

B. Law

Under certain circumstances, the United States

“will pay to any veteran” compensation “[f]or disability

resulting from personal injury suffered or disease

contracted in line of duty, or for aggravation of a

preexisting injury suffered or disease contracted in line

of duty, in the active military, naval, or air service.” 38

U.S.C. § 1110. However, as early as 1891, Congress

has prohibited members of the uniformed services from

receiving VA benefits and active service pay. Act of

March 3, 1891, ch. 548, 26 Stat. 1082; see Absher v.

United States, 9 Cl. Ct. 223, 224-25 (1985) (discussing

the legislative history of the prohibition against dual

compensation), aff’d, 805 F.2d 1025 (Fed. Cir. 1986).

The prohibition against the duplication of

benefits now appears in section 5304 of title 38, U.S.

Code, and provides in pertinent part: “Pension,

39a

compensation, or retirement pay on account of any

person’s own service shall not be paid to such person

for any period for which such person receives active

service pay.” 38 U.S.C. § 5304(c). “Active service pay”

is defined as “pay received for active duty, active duty

for training[,] or inactive duty training.” 38 C.F.R.

§ 3.654(a) (2019).

Congress generally allows members of the

Reserve or National Guard who are called to active

duty to elect to receive, for that duty, the pension,

compensation, or retirement pay that the member had

been receiving because of his or her earlier service, or,

upon waiver of those payments, the pay and

allowances authorized by law for the period of active

service. 10 U.S.C. § 12316. In 1962, VA promulgated

38 C.F.R. § 3.654(b), which establishes the effective

date for the discontinuance of VA benefits when

veterans return to active duty status and the effective

date for recommencement of payments following their

release from active duty. Pertinent to the issue on

appeal, § 3.654(b)(2) provides:

Payments, if otherwise in order, will be

resumed effective the day following

release from active duty if claim for

recommencement of payments is received

within 1 year from the date of such

release: otherwise payments will be

resumed effective 1 year prior to the date

of receipt of a new claim. Prior

determinations of service connection will

not be disturbed except as provided in [38

C.F.R.] § 3.105. Compensation will be

authorized based on the degree of

disability found to exist at the time the

award is resumed. Disability will be

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evaluated on the basis of all facts,

including records from the service

department relating to the most recent

period of active service. If a disability is

incurred or aggravated in the second

period of service, compensation for that

disability cannot be paid unless a claim

therefor is filed.

38 C.F.R. § 3.654(b)(2).

Here, there is no dispute that the appellant did

not file a claim for recommencement of disability

compensation until January 20, 2009, more than 1

year after his release from his second and third periods

of active duty. He contends only that section 5304(c),

together with section 1110, requires VA to reinstate his

benefits as of the date following his release from active

duty or, in the alternative, that the Court find that VA

provided misleading notice warranting equitable

tolling or a finding that VA violated his right to due

process. The Court will address his statutory argument

first.

C. Statutory Interpretation

“When a statute is at issue, we begin with the

statutory language.” McGee v. Peake, 511 F.3d 1352,

1356 (Fed. Cir. 2008); see Williams v. Taylor, 529 U.S.

420, 431 (2000). “The statute’s plain meaning is derived

from its text and its structure.” McGee, 511 F.3d at

1356; see Gardner v. Derwinski, 1 Vet.App. 584, 586

(1991) (“Determining a statute’s plain meaning requires

examining the specific language at issue and the overall

structure of the statute.”), aff’d sub nom. Gardner v.

Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff’d, 513 U.S. 115

(1994). The “plain meaning must be given effect unless

a ‘literal application of [the] statute will produce a

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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, 571

(1982)); see Roper v. Nicholson, 20 Vet.App. 173, 180

(2006), aff’d, 240 F. App’x 422 (Fed. Cir. 2007). In

assessing the language of a statute, courts review the

overall statutory scheme “‘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.’” Roper, 20

Vet.App. at 178 (quoting SINGER, SOUTHERLAND ON

STATUTORY CONSTRUCTION, § 46:06 (6th ed. 2000)).

The first question in statutory interpretation is

always “whether Congress has directly spoken to the

precise question at issue.” Chevron, 467 U.S. at 842. “If

the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of

Congress.” Id. at 842-43. However, if the statute is

silent or ambiguous with respect to the specific issue,

the question becomes whether the agency’s

interpretation is based on a permissible construction of

the statute. Id. at 843. The agency’s interpretation will

not be set aside unless it is “arbitrary, capricious, an

abuse of discretion or otherwise not in accordance with

law.” 38 U.S.C. § 7261(a)(3)(A); see Mayo Found. for

Med. Educ. & Research v. United States, 562 U.S. 44, 53

(2011). The interpretation of a statute is a question of

law that the Court reviews de novo, without deference

to the Board’s interpretation. See Butts v. Brown, 5

Vet.App. 532, 539 (1993) (en banc).

1. Chevron Step One

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As noted above, section 1110 generally

establishes that, under certain circumstances, the

United States “will pay” disability compensation for

disability resulting from or aggravated by military

service. 38 U.S.C. § 1110. By its terms, it does not

establish when disability compensation payments shall

begin or impose any limitation on continued receipt of

compensation benefits. Cf. 38 U.S.C. § 5110 (Effective

dates of awards). Section 5304(c), however, imposes one

such limitation: VA “shall not” pay pension or

compensation benefits to any person on account of that

person’s service during any period for which that person

receives active service pay. 38 U.S.C. § 5304(c). By its

terms, section 5304(c) establishes an unequivocal bar to

dual compensation.

The appellant thus maintains that, when sections

1110 and 5304(c) are read together, Congress’s intent is

clear and VA has no discretion: “VA must suspend or

withhold benefits, but only ‘for any period for which

such person receives active service pay.’” Appellant’s Br.

at 9 (quoting 38 U.S.C. § 5304(c)); Oral Argument at

2:50-3:20. However, the word “only” does not appear in

the statute and the Court will not insert limiting

language that is not present in the statute. See Bates v.

United States, 522 U.S. 23, 29 (1997) (“[We ordinarily

resist reading words or elements into a statute that do

not appear on its face.”). The statutory language does

not address the effective date for the discontinuation of

benefits or, as relevant here, the effective date and

terms for the recommencement of benefits.

To the contrary, Congress separately addressed

the effective date for the discontinuation of benefits by

reason of active service pay in section

5112(b)(3)—benefits “shall be” discontinued the day

before active service pay begins. 38 U.S.C. § 5112(b)(3).

43a

Although Congress did not separately address the

effective date for the recommencement of benefits, the

Court will not adopt the appellant’s construction of

sections 1110 and 5304(c) as the governing authority

because doing so would effectively render Congress’s

specific directive in section 5112(b)(3) superfluous. See

Sharp v. United States, 580 F.3d 1234, 1238 (Fed. Cir.

2009) (noting that the canon against surplusage

requires courts to avoid an interpretation that results

in portions of text being read as meaningless); see also

Duncan v. Walker, 533 U.S. 167, 174. In sum, Congress

did not speak to the precise question at issue: Whether

the Secretary may predicate the effective date for the

recommencement of benefits on the date of the veteran’s

claim.1 The Court thus agrees with the Secretary that

neither section 5304(c) individually, nor sections 5304(c)

and 1110 together, address how interruptions in the

payment of benefits shall be administered. Cf. 38 U.S.C.

§ 5313 (establishing both the beginning and ending date

of the limitation on payment of compensation to persons

incarcerated for conviction of a felony).

Because there is a gap in the statute, the Court

must now turn to step two of the Chevron analysis,

“whether the agency’s answer is based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843;

see id. (“‘The power of an administrative agency to

administer a congressionally created ... program

necessarily requires the formulation of policy and the

1

The appellant does not dispute that the Secretary may

require a veteran to notify VA that a term of active duty has

ended. His argument is limited to whether the Secretary may “tie

the effective date of the resumption of benefits to the date of such

notification because doing so conflicts with the plain language of

38 U.S.C. § 5304(c).” Appellant’s Br. at 10 n.3.

44a

making of rules to fill any gap left, implicitly or

explicitly, by Congress.’” (quoting Morton v. Ruiz, 415

U.S. 199, 231(1974)).

2. Chevron Step Two

Congress conferred on the Secretary broad

authority to “prescribe all rules and regulations which

are necessary or appropriate to carry out the laws

administered by the Department and are consistent

with those laws.” 38 U.S.C. § 501(a). That authority

includes establishing “regulations with respect to the

nature and extent of proof and evidence ... in order to

establish the right to benefits under such laws,” “the

forms of application by claimants under such laws,” and

“the manner and form of adjudications and awards.” 38

U.S.C. § 501(a)(1), (2), (4).

The Secretary asserts that § 3.654(b) fills the gap

left by Congress by “delineating the procedure by which

benefits are suspended and reinstated as a veteran

comes in and out of active service.” Secretary’s Br. at

12. He maintains that VA is charged with managing the

flow of benefits for millions of veterans and asserts that

his regulation operates in a veteran friendly manner,

affording veterans a 1-year grace period to inform VA

that they have been released from active duty or, in the

alternative, to have payments resumed 1 year prior to

the date of the claim. Oral Argument at 28:25-28:52,

31:15-32:00; see Secretary's Br. at 10.

The appellant counters that § 3.654(b)(2) is

inconsistent with and not necessary or appropriate to

carry out the requirements of section 5304(c). Oral

Argument at 6:15-6:42. In this regard, he maintains

that the regulation does nothing to prevent the

duplication of benefits and imposes a substantive

limitation on entitlement to VA benefits that is contrary

45a

to the mandate in section 1110 that the United States

“will pay” disability compensation. Id. at 4:48-5:56.

Although the Court is sympathetic to the appellant’s

circumstances, the Court is not persuaded by his

arguments.

As argued by the Secretary, VA promulgated

§ 3.654(b) pursuant to his broad authority derived from

section 501; the regulation creates a mechanism by

which VA manages compensation benefits when

veterans return to active duty, § 3.654(b)(1), and

provides a procedure and structure for recommencing

benefits upon release from active duty, § 3.654(b)(2).

Oral Argument at 27:00-27:30. In that general sense,

the regulation effectively establishes “the nature and

extent of proof and evidence and the method of taking

and furnishing them” and falls within the Secretary’s

authority “to determine the forms of application [for]

benefits, and the manner of awards.” Secretary’s Br. at

10-11. A veteran must file a claim for recommencement

and the regulation provides for an earlier effective date

of the day following discharge if the claim is received

within 1 year from the date of release from active duty

or, in the alternative, 1 year prior to the date of the

claim. 38 C.F.R. § 3.654(b)(2).

The Secretary explained that, when veterans

return to active duty, their awards of compensation

benefits are terminated. Oral Argument at 32:22-33:18,

42:20-43:33; see VA Gen. Coun. Prec. 05-95 at 2 (Feb. 6,

1995) (providing that VA’s action of discontinuing

compensation upon return to active duty is suggestive

of an adjudicative determination terminating the

veteran’s award, such that the continuity of a veteran’s

rating is interrupted). He further clarified that,

although service connection remains in place, it is

necessary for VA to readjudicate and evaluate a

46a

veteran’s service-connected disability upon return from

active duty to ascertain the current level of severity, see

38 C.F.R. § 3.654(b)(2) (providing that “[c]ompensation

will be authorized based on the degree of disability

found to exist at the time the award is resumed”), and

VA’s regulation reasonably requires a veteran to file a

claim for recommencement. Oral Argument at

42:20-43:33. As for the 1-year period, the Secretary

analogized it to 38 U.S.C. § 5110(b)(1), which provides

that “[t]he 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 [1] year from such date of

discharge or release.” Id. He asserted that, just as

Congress provided 1 year for a veteran to file a claim

following discharge, his regulation provides the same

reasonable period. Id.

In that regard, the Court has previously upheld

time limitations for filing a claim and “1 year” is

generally used throughout title 38. See Oral Argument

at 31:15-31:20; Secretary’s Br. at 14-15. For example, in

Jernigan v. Shinseki, the Court addressed whether the

Secretary’s creation of a time limit to file a formal

application form was a reasonable interpretation of

Congress’s direction that VA prescribe the “form” in

which applications for benefits may be made. 25

Vet.App. 220, 225-27 (2012). The Court found in the

affirmative, explaining that the most appropriate

definition of “form” is an “[e]stablished behavior or

procedure, usu[ally] according to custom or rule,”

BLACK’S LAW DICTIONARY 723 (9th ed. 2004), and

that “[u]nder this definition, it is eminently reasonable

to interpret ‘form’—that is, the procedure for filing an

application for benefits—to include a timing

requirement, particularly in the context of VA, where

47a

finality often plays a crucial role.” 25 Vet.App. at 226.

The Court rejected Ms. Jernigan’s assertion that “VA is

not permitted to disguise the creation of additional

requirements or limitations as interpretive

regulations,” id. at 226 (internal quotation marks

omitted), explaining that “Congress expressly delegated

authority to VA to determine the appropriate ‘forms of

application[,]’” id. at 226-27 (quoting 38 U.S.C.

§ 501(a)(2)). The Court thus concluded that Congress’s

“express delegation, along with the Court’s

determination that the Secretary’s interpretation of

‘form’ to include a timing requirement is reasonable, is

sufficient to hold that [the Secretary’s regulation] is not

‘arbitrary or capricious in substance, or manifestly

contrary to the statute.’” Id. at 227 (quoting Mayo

Found. for Med. Educ. & Research, 562 U.S. at 53).

Similarly, here, the Secretary promulgated

§ 3.654(b)(2) pursuant to Congress’s express delegation

to establish “forms of application.” 38 U.S.C. § 501(a)(2).

Although Congress chose to govern the date that VA

benefits shall be discontinued upon a veteran’s return

to active duty, 38 U.S.C. § 5112(b)(3), Congress was

silent regarding when and how VA shall resume the

payment of benefits after a veteran’s release from active

duty. The Secretary filled the gap left by Congress and,

therefore, contrary to the appellant’s contention, his

regulation is necessary and appropriate to carry out the

laws administered by the Department. See 38 U.S.C.

§ 501(a).

Further, the Court notes that the language of

§ 3.654(b)(2) has remained unchanged since 1962. See

27 Fed. Reg. 11,886 (Dec. 1, 1962). Despite ample

opportunity to modify section 5304(c) or circumscribe

this regulation, Congress has left both untouched for

over half a century. See Heino v. Shinseki, 24 Vet.App.

48a

367, 375 (2011) (holding that Congress’s failure to reject

the Secretary’s construction of a statute or circumscribe

its regulation “indirectly indicated” its “sanction[ ]” of

the regulation), aff'd, 683 F.3d 1372 (Fed. Cir. 2012).

Moreover, the Court is not persuaded that the

supplemental authorities submitted by the appellant

compel finding the Secretary’s regulation arbitrary and

capricious. As noted above, the appellant asserts that

veterans who do not inform VA of their return to active

duty may, in the end, receive and retain more monthly

benefits than veterans, like the appellant, who waive

benefits during a period of active service but who do not

inform VA of their release within 1 year following

release from service. The Secretary, however, is charged

with managing compensation benefits for all veterans

and the appellant has not demonstrated that it is

unreasonable to craft rules with the expectation that

they will be followed. Cf. Mass. Bd. of Ret. v. Murgia,

427 U.S. 307, 314 (1976) (“Perfection in making the

necessary classifications is neither possible nor

necessary.”). The Court thus concludes that VA’s

decision to predicate the effective date of

recommencement of benefits on the date of the

application therefor is not “arbitrary, capricious, or

manifestly contrary to” section 5304(c). Chevron, 467

U.S. at 844.

Because the Court finds § 3.654(b)(2) a valid

exercise of the Secretary’s rulemaking authority, the

Court must turn to the appellant’s alternative

arguments that equitable tolling is warranted or that

VA deprived him of his constitutional right to due

process. The Court will address his argument for

equitable tolling first. See Bucklinger v. Brown, 5

Vet.App. 435, 441 (1993) (“It is ‘[a] fundamental and

long-standing principle of judicial restraint ... that

49a

courts avoid reaching constitutional questions in

advance of the necessity of deciding them.’” (quoting

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.

439, 445 (1988)).

D. Equitable Tolling

As noted above, the appellant argues that VA

provided misleading notice regarding the 1-year period

to submit a claim to recommence the payment of VA

benefits and, therefore, the Court should apply its

equitable tolling authority to afford him earlier effective

dates of July 1, 2004, and August 1, 2005, the dates

following his release from two periods of active duty, for

the reinstatement of VA benefits. Although equitable

tolling may be applied against the government in

certain circumstances, such as “where the claimant has

actively pursued his judicial remedies by filing a

defective pleading during the statutory period, or where

the complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing deadline

to pass,” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

96 (1990), it is generally applied to toll a statute of

limitations to allow a claim that would otherwise be

time barred. See, e.g., Bove v. Shinseki, 25 Vet.App. 136,

140 (2011) (per curiam order) (holding that the 120-day

period in 38 U.S.C. § 7266(a) is subject to equitable

tolling).

Both the U.S. Court of Appeals for the Federal

Circuit (Federal Circuit) and this Court have considered

whether equitable tolling may be applied to statutes

that govern the effective date of awards of VA benefits

and authorities that operate similar to effective-date

provisions, and have found that it may not. See Andrews

v. Principi, 351 F.3d 1134, 1138 (Fed. Cir. 2003); Noah

v. McDonald, 28 Vet.App. 120, 128-29 (2016). Statutes

50a

and regulations that “merely indicate when benefits

may begin, not whether a veteran is entitled to benefits

at all,” are not statutes of limitation subject to equitable

tolling. Noah, 28 Vet.App. at 129; see Andrews, 351

F.3d at 1138 (“Passage of the [1]-year period in [38

U.S.C.] § 5110(b)(1) for filing a claim of disability

compensation ... does not foreclose payment for the

veteran and thus cannot be construed as establishing a

statute of limitations.”); Noah, 28 Vet.App. at 129

(“[T]he 1-year period provided in 38 U.S.C. § 3003(a)

[(1981)] to submit evidence following VA’s notification

of the evidence necessary to complete the application

cannot be construed as a statute of limitations.”).

Here, the Court agrees with the Secretary that

§ 3.654(b)(2) is not a bar to VA benefits and does not

contain a statute of limitations that may be equitably

tolled. Rather, the regulation governs the date VA

benefits may be resumed following release from active

duty, which is dependent on when the veteran files a

claim to recommence payment of benefits. In that

regard, it operates similar to effective-date provisions

for awards of VA benefits, which the Federal Circuit in

Andrews unequivocally held may not be equitably

tolled, 351 F.3d at 1138, and the statute and regulation

at issue in Noah, 28 Vet.App. at 128-29.

The appellant does not dispute that § 3.654(b)(2)

is not a statute of limitations. Instead, he argues that

“the Board treated [§] 3.654(b)(2) as a statute of

limitations in finding that, because [he] did not notify

VA of his separation from active duty within [1] year of

the date of separation, he had waived his right to an

earlier effective date.” Appellant’s Br. at 13. Hence, he

contends that the Board’s “application of [§] 3.654(b)(2)

... does not fall within the category of VA regulations

51a

that may evade equitable tolling.” Appellant’s Br. at 13

(citing Noah, 28 Vet.App. at 127).

His argument is not persuasive. First, it is clear

from the Board decision as a whole that, in applying

§ 3.654(b)(2), the Board determined that the effective

date for resuming payment of VA benefits must be

based on the date of the appellant’s claim—January 20,

2009. R. at 8-9; see Janssen v. Principi, 15 Vet.App. 370,

379 (2001) (per curiam) (rendering a decision on the

Board’s statement of reasons or bases “as a whole”).

And, because the claim was filed more than 1 year after

his release from active duty, a date more than 1 year

prior to the date of the claim was impermissible. R. at

9. Although application of the regulation to the

undisputed facts precluded an earlier effective date, it

did not operate as a complete bar to benefits.

Second, even if the Board treated the regulation

as a statute of limitations, the appellant cites no

authority to support the proposition that the Court may

apply equitable tolling under that circumstance. The

Court thus need not address this argument further. See

Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006)

(holding that the Court will not entertain undeveloped

arguments); Hilkert v. West, 12 Vet.App. 145, 151 (1999)

(en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir.

2000) (table).

E. Due Process

The Fifth Amendment to the U.S. Constitution

provides that “No person shall ... be deprived of life,

liberty, or property, without due process of law.” U.S.

CONST. amend. V. “[T]he Due Process Clause provides

that certain substantive rights—life, liberty, and

property—cannot be deprived except pursuant to

constitutionally adequate procedures.” Cleveland Bd. of

52a

Educ. v. Loudermill, 470 U.S. 532, 541 (1985). An

essential principle of due process is that deprivation of

a protected interest must “be preceded by notice and

opportunity for hearing appropriate to the nature of the

case.” Mullane v. Cent. Hanover Bank & Trust Co., 339

U.S. 306, 313 (1950). The Court reviews constitutional

questions de novo. See Buzinski v. Brown, 6 Vet.App.

360, 365 (1994).

Nearly 10 years ago, the Federal Circuit held

that a veteran’s entitlement to disability benefits is a

property interest protected by the Due Process Clause.

Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir.

2009). The amount of process that is constitutionally

due depends on the situation and generally requires

consideration of three distinct factors: “[T]he private

interest that will be affected by the official action”; “the

risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards”;

and “the Government’s interest.” Mathews v. Eldridge,

424 U.S. 319, 335 (1976).

The appellant argues that VA violated his

constitutional right to due process because the August

2003 VA Form 21-8951 and the RO’s December 2003

letter “effectively misled [him] into believing that there

was no deadline for him to inform VA of his separation

from active duty.” Appellant’s Br. at 16; see R. at 1222

(December 2003 letter: “When you have been released

from active duty, please provide our office with a copy

of your DD[-]214, so that we may re-instate your

benefits.”), 1233 (August 2003 VA Form 21-8951: “This

waiver will remain in effect ... unless you notify VA

otherwise in writing.”). At oral argument, he asserted

that, because the notice was silent regarding when

payment would be resumed, a reasonable person would

53a

not think that a failure to notify VA within a particular

time frame would result in a forfeiture of benefits. Oral

Argument at 9:20-10:04. He thus maintained that the

December 2003 letter was affirmatively misleading: He

argued that VA told him that he needed to submit his

DD-214s but did not tell him any other information. So,

VA “affirmatively misled him in the sense that he was

told he needed to do ‘A’ and, if he did ‘A,’ he would get

his benefits reinstated.” Id. at 10:30-11:00.

The Court need not reach the question whether

VA provided misleading notice because, even assuming

the notice was misleading, to prevail on his argument,

the appellant must also show that he relied to his

detriment on the allegedly misleading notice. See Noah,

28 Vet.App. at 133; see also Day v. Shalala, 23 F.3d

1052, 1066 (6th Cir. 1994) (although the denial notice

“failed to satisfy the requirements of due process, the

only claimants who could have been injured by the

inadequacy are those who detrimentally relied on the

inadequate denial notice”); Burks–Marshall v. Shalala,

7 F.3d 1346, 1349 (8th Cir. 1993) (the appellant has no

standing to raise a due process issue where he “has not

shown that the alleged deficiency in the notice had any

connection in fact with h[is] own failure to seek review

of” the denial of his claim). “Without such reliance, the

injury is not fairly traceable to the challenged action.”

Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995).

Here, it is undisputed that the appellant knew

that he needed to inform VA that he had been released

from active duty to reinstate his benefits; he contends

only that his statements and testimony reflect that he

relied to his detriment on the allegedly misleading

notice. Appellant’s Br. at 16 (citing R. at 644 (Nov. 2015

testimony that the RO “didn't clarify” in 2003 that VA

could only make payments 1 year prior to the date of his

54a

request), 1193 (Sept. 2009 NOD noting that the

December 2003 letter “did not address the [1-]year

requirement for informing ... VA of my release from

active duty”)). But he does not explain how his

statements reflect more than a general lack of

knowledge of the regulation.

The Court addressed a similar situation in

Jernigan. In that case, the appellant argued that VA’s

notice, which failed to inform her of the timeframe to

return a formal application, was misleading or

confusing. 25 Vet.App. at 229. Without determining

whether VA had a duty to notify or whether the notice

was defective, the Court concluded that the appellant

failed to demonstrate that she relied to her detriment

on the purportedly misleading notice. Id. Pertinent to

resolution of this appeal, the Court rejected the notion

that “one could presume that [the claimant relied on the

allegedly misleading notice] from the notice itself and

the subsequent delay in submitting a formal

application.” Id. The Court stated that the appellant

had not cited any authority for such a presumption,

“and our caselaw does not allow it.” Id. The Court

concluded: “‘The record simply does not support any

assertion that the notice lulled the appellant into failing

to act, and [her] arguments must be rejected because

they are not supported by any demonstrable prejudice.’”

Id. (quoting Edwards v. Peake, 22 Vet.App. 29, 35

(2008), aff’d sub nom. Edwards v. Shinseki, 582 F.3d

1351 (Fed. Cir. 2009)); see id. at 231 (rejecting the

appellant’s due process argument in part due to the lack

of “evidence that [she] relied on VA’s allegedly

misleading notice to her detriment”); see also Shinseki

v. Sanders, 556 U.S. 396, 409 (2009) (holding that the

harmless-error analysis applies to the Court’s review of

Board decisions and that the burden is on the appellant

55a

to show that he or she suffered prejudice as a result of

VA error).

Similarly, here, the record does not support the

assertion that the appellant detrimentally relied on the

allegedly misleading notice. See Mlechick v. Mansfield,

503 F.3d 1340, 1345 (Fed. Cir. 2007) (holding that this

Court’s statutory duty to take due account of the rule of

prejudicial error permits the Court “to go outside of the

facts as found by the Board to determine whether an

error was prejudicial by reviewing ‘the record of the

proceedings before the Secretary and the Board’”

(quoting Newhouse v. Nicholson, 497 F.3d 1298, 1302

(Fed. Cir. 2007))); Vogan v. Shinseki, 24 Vet.App. 159,

164 (2010) (“[I]n assessing the prejudicial effect of any

error of law or fact, the Court is not confined to the

findings of the Board but may examine the entire record

before the Agency, which includes the record of

proceedings.”). The record is silent from December 1,

2003, until January 20, 2009, when the appellant

requested that his benefits be reinstated. Although he

asserted in his NOD and Board testimony that the 2003

documents did not “clarify” that payments could only be

resumed up to 1 year prior to the date of his request, he

has not argued that they lulled him into inaction;

rather, as noted by the Board, the appellant testified

that “between that time period of 2003 until 2009, I

kind of forgot about it because I'm in the Guard and it

was kind of like my full-time job.” R. at 643; see R. at 9.

The Court thus concludes that the appellant has not

met his burden of demonstrating that any due process

error was prejudicial to the outcome of his appeal. See

Jernigan, 25 Vet.App. at 231; see also Sanders, 556 U.S.

at 409; Berger v. Brown, 10 Vet.App. 166,169 (1997).

Considering the foregoing, and the undisputed

fact that the appellant did not file a claim for

56a

reinstatement of benefits until January 20, 2009, the

Board did not clearly err when it determined that an

effective date prior to February 1, 2008, for the

reinstatement of benefits was not warranted. See 38

U.S.C. § 7261(a)(4); Evans v. West, 12 Vet.App. 396, 401

(1999); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990);

38 C.F.R. § 3.654(b)(2).

III. CONCLUSION

After consideration of the parties’ pleadings, oral

argument, and a review of the record, the Board’s July

20, 2017, decision is AFFIRMED.

GREENBERG, Judge, filed a dissenting opinion.

GREENBERG, Judge, dissenting:

I respectfully dissent. “I would stop this business

of making up excuses for judges to abdicate their job of

interpreting the law, and simply allow the court of

appeals to afford ‘a claimant’ its best independent

judgment of the law’s meaning.” Kisor v. Wilkie, 139

S.Ct. 2400 (2019) (Gorsuch, J. concurring), vacating and

remanding Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir.

2017), aff’g Kisor v. McDonald, No. 14-2811, 2016 WL

337517 (Vet. App. Jan. 27, 2016) (mem. dec.). The

majority opinion reflects nothing more than a rubber

stamping of the Government’s attempt to misuse its

authority granted under 38 U.S.C. § 501(a). The

Secretary may only prescribe rules and regulations that

are “necessary and appropriate to carry out the laws

administered by the Department.” 38 U.S.C. § 501(a).

The statute already delineates the period for which

veterans may not receive VA benefits—while they are

on active duty. 38 U.S.C. § 5304(c). Section 3.654(b)

does not merely “create a mechanism by which VA

57a

manages compensation benefits when veterans return

to active duty,” as the majority states, ante at 302, it

also creates an unnecessary and inappropriate

impediment to a veteran receiving benefits he has

already established entitlement to. The fact that VA

could have adopted a regulation that prescribed the

procedure of reinstating benefits without including an

effective date provision is dispositive of whether 38

C.F.R. § 3.654(b) is a “necessary or appropriate”

regulation. The Secretary has exceeded his statutory

authority here at the expense of service-connected

veterans who were called back to active duty. For this

reason, I dissent.

58a

APPENDIX C

BOARD OF VETERANS’ APPEALS

DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, DC 20420

IN THE APPEAL OF THOMAS H. BUFFINGTON

SS [redacted]

DOCKET NO. 10-06 046

DATE - July 20, 2017

On appeal from the Department of Veterans Affairs

Regional Office in Cleveland, Ohio

THE ISSUE

Entitlement to an effective date prior to February 1,

2008, for the reinstatement of VA benefits.

REPRESENTATION

Veteran represented by: The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

David Gratz, Counsel

INTRODUCTION

The Veteran served on active duty in the United States

Air Force from September 1992 to May 2000, and on

active duty in the Air National Guard from July 2003

to June 2004, November 2004 to July 2005, and

February 2016 to May 2016.

59a

This matter comes before the Board of Veterans’

Appeals (Board) on appeal from an August 2009

decision issued by the Department of Veterans Affairs

(VA) Regional Office (RO) in Denver, Colorado.

Jurisdiction over the Veteran’s file was subsequently

transferred to the RO in Cleveland, Ohio.

In November 2014, the Board remanded the case in

order to afford the Veteran his Board requested

hearing. Thereafter, in November 2015, the Veteran

testified at a Board hearing before the undersigned

Veterans Law Judge (VLJ) sitting at the Cleveland

RO. At such time, he submitted additional evidence

with a waiver of Agency of Original Jurisdiction (AOJ).

38 C.F.R. § 20.1304(c) (2016). Therefore, the Board

may prperly consider such newly received evidence.

Additionally, the undersigned held the record open for

60 days for the receipt of any further evidence

referable to the instant appeal; however, to date, none

has been received.

1. The Veteran served on active duty in pertinent part

from July 2003 to June 2004, and from November 2004

to July 2005.

2. The Veteran is in receipt of service connection for

tinnitus (10 percent), a low back strain

(noncompensable), and a left lower lip scar

(noncompensable), effective as of May 31, 2000.

3. In August 2003, the Veteran submitted VA Form

21-8951, whereby he notified VA that he elected to

receive pay and allowances for the performance of

active/inactive duty in lieu of his VA benefits.

60a

4. In October 2003, the Veteran informed VA that he

was recalled to active duty in July 2003, and asked

that VA stop his payments.

5. On December 1, 2003, VA informed the Veteran

that it had stopped his benefits as of July 21, 2003, the

day before he was recalled to active duty. The letter

informed that [sic] the Veteran that “[w]hen you have

been released from active duty, please provide our

office with a copy of your DD214, so that we may

reinstate your benefits.”

6. On January 20, 2009, the Veteran requested that

VA restart his benefits.

CONCLUSIONS OF LAW

The criteria for an effective date prior to

February 1, 2008, for the reinstatement of VA benefits

are not met. 38 U.S.C.A. §§ 5304, 5110 (West 2014); 38

C.F.R. §§ 3.31, 3.400(j), 3.654, 3.700(a)(1)(i) (2016).

REASONS AND BASES FOR

FINDINGS AND CONCLUSION

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000

(VCAA) and implementing regulations impose

obligations on VA to provide claimants with notice and

assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107

(West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,

3.326(a) (2016).

While the Veteran was not provided with VCAA

notice prior to the adjudication of his claim in the

August 2009 decision, the Board finds that any

prejudice due to such error has been overcome in this

61a

case by the following: (1) based on the communications

sent to the Veteran over the course of this appeal, the

Veteran clearly has actual knowledge of the evidence

he is required to submit in this case; and (2) based on

the Veteran’s contentions as well as the

communications provided to him by VA, it is

reasonable to expect that the Veteran understands

what is needed to prevail. See Shinseki v.

Sanders/Simmons, 129 S. Ct. 1696 (2009);

Fenstermacher v. Phila. Nat’l Bank, 493 F.2d 333, 337

(3d Cir. 1974) (stating that “no error can be predicated

on insufficiency of notice since its purpose had been

served.”). In order for the United States Court of

Appeals for Veterans Claims (Court) to be persuaded

that no prejudice resulted from a notice error, “the

record must demonstrate that, despite the error, the

adjudication was nevertheless essentially fair.” Dunlap

v. Nicholson, 21 Vet. App. 112, 118 (2007).

In the instant case, the August 2009 decision

and January 2010 statement of the case informed the

veteran that his VA benefits were reinstated effective

February 1, 2008, as his request for such

reinstatement was received more than one year after

his release from active duty and, by law, VA is only

permitted to make payments retroactive to one year

prior to the date his request was received. The

January 2010 statement of the case further explained

that payment of VA benefits is resumed effective the

day following release from active duty if the claim is

received within one year of release from active duty.

Otherwise, VA benefits are resumed one year prior to

the date of receipt of claim. In the instant case, the

Veteran was informed that he was released from active

duty in 2005, but did not submit his claim until

January 20, 2009. Thus, by law, his VA benefits were

62a

reinstated one year prior to such claim, i.e., January

20, 2008; however, payment is not effective until the

first of the following month, i.e., February 1, 2008.

Furthermore, the Veteran, in written statements and

at his Board hearing, offered argument as to why he

believed his VA benefits should have been reinstated

prior to February 1, 2008. Therefore, the Board finds

that no prejudice resulted from a notice error as the

record demonstrates that the adjudication was

nevertheless essentially fair. Id.

The VCAA also requires VA to make reasonable

efforts to help a claimant obtain evidence necessary to

substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R.

§§ 3.159(c), (d). This “duty to assist” contemplates that

VA will help a claimant obtain records relevant to his

claim, whether or not the records are in Federal

custody, and that VA will provide a medical

examination or obtain an opinion when necessary to

make a decision on the claim. 38 C.F.R. § 3.159(c)(4).

In the instant case, the Board finds that all

relevant facts have been properly developed and that

all evidence necessary for equitable resolution of the

issue decided herein has been obtained. The

appellant’s service personnel records, as well as all

relevant correspondence to and from VA, have been

obtained and considered.

The Veteran also offered testimony before the

undersigned Veterans Law Judge at a Board hearing

in November 2015. In Bryant v. Shinseki, 23 Vet. App.

488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2)

requires that the Decision Review Officer or Veterans

Law Judge who chairs a hearing to fulfill two duties:

(1) the duty to fully explain the issues and (2) the duty

to suggest the submission of evidence that may have

been overlooked.

63a

Here, during the November 2015 hearing, the

undersigned Veterans Law Judge noted the issue on

appeal. Also, information was solicited regarding the

Veteran’s contentions as to why he believed he was

entitled to an effective date prior to February 1, 2008,

for the reinstatement of VA benefits and the

undersigned explained the basis for the assignment of

February 1, 2008. as the date his VA benefits were

reinstated. Therefore, not only were the issue[s]

“explained ... in terms of the scope of the claim for

benefits,” but “the outstanding issues material to

substantiating the claim,” were fully explained. See

Bryant, 23 Vet. App. at 497. The hearing discussion did

not reveal any outstanding evidence pertinent to the

instant claim and the Veteran and his representative

have not alleged any prejudice in the conduct of the

hearing. Under these circumstances, nothing gives rise

to the possibility that evidence had been overlooked

with regard to the Veteran’s claim decided herein. As

such, the Board finds that, consistent with Bryant, the

undersigned Veterans Law Judge complied with the

duties set forth in 38 C.F.R. 3.103(c)(2) and that the

Board may proceed to adjudicate the claim based on

the current record.

Furthermore, Board finds there has been

substantial compliance with the Board’s November

2014 remand directives and no further action in this

regard is necessary. See D’Aries v. Peake, 22 Vet. App.

97 (2008). (holding that only substantial, and not

strict, compliance with the terms of a Board remand is

required pursuant to Stegall v. West, 11 Vet. App. 268,

271 (1998)). In this regard, the matter was remanded

in order to afford the Veteran his requested Board

hearing, which was held in November 2015. Therefore,

the Board finds that there has been substantial

64a

compliance with the Board’s November 2014 remand

directives, and no further action in this regard is

necessary.

Furthermore, as will be discussed below, the

Board finds that there is no legal basis to award an

effective date prior to February 1, 2008, for the

reinstatement of VA benefits. In this regard, VA’s

General Counsel has held that in cases where a claim

cannot be substantiated because there is no legal basis

for the claim or because undisputed facts render the

claimant ineligible for the claimed benefit, VA is not

required to provide notice of, or assistance in

developing, the information and evidence necessary to

substantiate such a claim under 38 U.S.C.A. §§5103(a)

and 5103A. See VAOPGCPREC 5-04 (June 23, 2004).

Consequently, the Board finds that VA’s duties to

notify and assist have been satisfied. Thus, appellate

review may proceed without prejudice to the Veteran.

See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. Analysis

Compensation pay on account of a veteran’s own

service will not be paid to any person for any period for

which he receives active service pay. 38 U.S.C.A.

§ 5304(c); 38 C.F.R. §§ 3.654(a), 3.700(a)(1)(i). That is,

a veteran is prohibited from receiving VA disability

compensation concurrently with active service pay.

Unless otherwise provided, the effective date of

an election of VA compensation benefits is the date of

VA’s receipt of the veteran’s election, subject to prior

payments. 38 C.F.R. § 2.400(j). Payment of VA benefits

following active service, if otherwise in order, will be

resumed effective the day following release from active

duty if a claim for commencement of payments is

received within 1 year from the date of such release;

65a

otherwise, payments will be resumed effective 1 year

prior to the date of receipt of a new claim. 38 C.F.R.

§ 3.654(b)(2).

Notwithstanding exceptions inapplicable to this

case, payment of monetary benefits based on

compensation may not be made for any period prior to

the first day of the calendar month following the month

in which the award became effective. 38 C.F.R. § 3.31.

An effective date prior to February 1, 2008, for

the reinstatement of VA benefits is impermissible

under law because VA cannot resume compensation

payments more than one year prior to the date of

claim, and payment of monetary benefits may not be

made for any period prior to the first calendar month

following the effective date of the award. Moreover, in

2003, the Veteran received notice that his waiver of VA

benefits would remain in effect until he notified VA

otherwise in writing and provided a copy of his DD214.

Finally, the provision regarding retroactive application

of elections applies only if the claimant was not

advised of his right of election and its effect, and

applies only to elections between retirement pay and

disability compensation—not between active duty pay

and VA benefits.

February 1, 2008, is the earliest date on which

VA can resume compensation benefits. The Veteran

filed VA Form 21-8951 in August 2003, wherein he

informed VA that he was receiving VA compensation

benefits as a result of prior service, and was electing to

receive pay and allowances for the performance of

active/inactive duty in lieu of his VA benefits. In

October 2003 and December 2003, he was advised that

VA must stop payment of his benefits as he had

returned to active duty. He was further informed that,

when he was released from active duty, he should

66a

provide VA with a copy of his DD 214 so that his

benefits may be reinstated.

On January 20, 2009, the Veteran wrote to VA

and requested that his VA benefits be restarted; he

explained that his VA benefits had stopped from July

21, 2003, the date that he was called to active duty,

and that he had served on active duty from that date

until June 21, 2004, and had another period of active

service from November 1, 2004 to July 30, 2005. Since

the Veteran’s January 2009 letter was not received

within one year of either his June 2004 or July 2005

date of separation from active service his payments

will be resumed effective 1 year prior to the date of

receipt of a new claim. 38 C.F.R. § 3.654(b)(2). Here,

one year prior to January 20, 2009 is January 20,

2008. Further, because payment of monetary benefits

based on compensation may not be made for any period

prior to the first day of the calendar month following

the month in which the award became effective, the

earliest date of his first payment is February 1, 2008.

38 C.F.R. § 3.31. In this regard, the Board observes

that the veteran does not assert that he filed a request

to resume his VA compensation benefits prior to

January 20, 2009; rather, he testified at his November

2015 hearing that “[b]etween that time period of 2003

until 2009, I kind of forgot about [notifying VA of his

duty status and election of benefits] because I’m in the

guard and it was kind of like my full-time job.” See

transcript, p. 5. Thus, a date prior to February 1, 2008,

for the resumption of his VA compensation benefits is

impermissible.

The Board also notes that the Veteran asserted

in his September 2009 notice of disagreement that:

67a

In my letter received from the

Albuquerque Office dated DEC 01, 2003,

it did not address the one year

requirement for informing VA of my

release from active duty. Furthermore, I

talked to the Cleveland VA Office in 2003

and they stated that since I am still a

member of the guard I was unable to

collect my compensation and drill pay.

Similarly, at his November 2015 hearing, the

Veteran testified that he received a letter from VA in

2003 telling him to send in his DD 214 when he was

released from active duty, but “there was no time

stated on when we should notify the VA.” See

transcript, pp. 4-5. Essentially, the Veteran contends

that there was a notice problem with regard to when

the DD 214s had to be submitted in order to reinstate

his VA benefits, and he did not understand that he had

to submit the information to VA within one year of his

date of separation from active duty. Id., pp. 7-9.

The Board observes that the VA Form 21-8951,

which the Veteran signed and submitted to VA in

August 2003, includes the following statement: “[t]his

waiver will remain in effect, while you are entitled to

receive VA disability payments, unless you notify VA

otherwise in writing.” Additionally, in the December

2003 letter from the RO to which the Veteran refers

above, VA notified the Veteran that “[w]hen you have

been released from active duty, please provide our

office with a copy of your DD 214, so that we may reinstate your benefits.” Those letters clearly informed

the Veteran that the consequences of failing to notify

VA of his cancelling his waiver of VA benefits would be

the continued waiver of those benefits. While the notice

68a

letters did not specify that the Veteran would be

eligible for payment up to a year prior to his

notification, VA has nevertheless afforded him those

benefits pursuant to 38 C.F.R. § 3.654(b)(2).

Regrettably, VA has no authority under the current

laws or regulations to provide benefits prior to that

date.

With respect to the communication from the

Cleveland VA Office in 2003, the Board observes that

the Veteran remained in active duty from the onset of

active duty in July 2003 through the remainder of that

year. As such, the RO was correct in informing the

Veteran that he could not collect both VA benefits and

active duty pay at the same time. 38 U.S.C.A.

§ 5304(c); 38 C.F.R. §§ 3.654(a), 3.700(a)(1)(i).

Finally, the provision regarding retroactive

application of elections applies only if the claimant was

not advised of his right of election and its effect, and

applies only to elections between retirement pay and

disability compensation—not to elections between

active duty pay and VA benefits. 38 C.F.R.

§ 3.750(d)(2). As such, even if the Board accepted the

Veteran’s contention that he was not adequately

notified of the effect of waiting more than a year after

his separation from active service to request the

resumption of his VA benefits, the provision allowing

for retroactive application does not apply in this case.

The Board appreciates the Veteran’s honesty

throughout his appeal and regrets that he has no

remedy or method under current law for automatically

providing him with the higher of either the VA benefits

or active duty pay that he earned through his service.

Absent such authority, the appeal must be denied.

69a

ORDER

An effective date prior to February 1, 2008, for

the reinstatement of VA benefits is denied.

A. Jaeger

Veterans Law Judge

Board of Veterans’ Appeals

70a

APPENDIX D

2009 Letter Informing Buffington of Start Date:

DEPARTMENT OF VETERANS AFFAIRS

Regional Office

155 Van Gordon Street

Box 25126

Denver CO 80225

August 20, 2009

In Reply Refer To:

339/215/GS

CSS [redacted]

THOMAS H BUFFINGTON

[address redacted]

Dear Mr. Buffington:

We reinstated your benefits at the same 10

percent service connected disability rating you were

awarded prior to your return to active duty, with

compensation in the amount of $123 per month.

On December 1, 2003, we sent you a letter

notifying you that we were terminating your VA

Compensation because we were told that you had

returned to active duty effective July 21, 2003. We also

told you to provide us with copies of your DD Form

214’s upon your release from active duty so that we

could reinstate your benefits.

On January 20, 2009, we received copies of your

DD Form 214’s for the periods of July 21, 2003 through

June 21, 2004 and November 1, 2004 to July 30, 2005.

71a

We have re-instated your benefits effective February 1,

2008.

This letter tells you about your entitlement

amount and payment start date and what we decided.

We have also included information about additional

benefits, what to do if you disagree with our decision,

and who to contact if you have any questions or need

assistance.

Your Award Amount and Payment Start Date

Your monthly entitlement amount is shown

below:

Monthly

Entitlement

Amount

$117.00

Payment

Start

Date

Feb. 1, 2008

$123.00

Dec. 1, 2008

Reason

for

Change

Compensation

benefits

reinstated

Cost of living

adjustment

You Can Expect Payment

Your payment begins the first day of the month

following your effective date. You will receive a

payment covering the initial amount due under this

award minus any withholdings, in approximately 15

days. Payment will then be made at the beginning of

each month for the prior month. For example, benefits

due in May are paid on or about June 1.

We Decided

We have reinstated your benefits at the 10%

rate.

72a

We enclosed a VA Form 21-8764, “Disability

Compensation Award Attachment-Important

Information,” which explains certain factors concerning

your benefits.

How Did We Make Our Decision?

We received your request for the reinstatement

of your VA Compensation benefit more than one year

after your release from active duty. By law we are only

permitted to make payments retroactive to one year

prior to the date we received your request.

This letter constitutes our decision based on

your claim received on [sic]. It represents all claims we

understand to be specifically made, implied, or inferred

in that claim.

Evidence Used to Decide Your Claim

In making our decision, we used the following

evidence:

Your VA Form 21-4138, “Statement in Support

of Claim” dated January 12, 2009

The information on your DD-214’s

How Do You Start Direct Deposit?

Your money may be deposited directly into your

checking or savings account. This is the safest and

most reliable way to get your money. For more

information about Direct Deposit, please call us toll

free by dialing 1-877-838-2778.

Are You Entitled to Additional Benefits?

You may be eligible for medical care by the VA

health case system for any service connected disability.

You may apply for medical care or treatment at the

nearest medical facility. If you apply in person, present

73a

a co py of t hi s l e t t e r t o the Patien t

Registration/Eligibility Section. If you apply by

writing a letter, include your VA file number and a

copy of this letter.

What You Should Do If You

Disagree With Our Decision

If you do not agree with our decision, you should

write and tell us why. You have one year from the date

of this letter to appeal the decision. The enclosed VA

Form 4107, “Your Rights to Appeal Our Decision,”

explains your right to appeal.

If You Have Questions or Need Assistance

If you have any question, you may contact us by

telephone, email, or letter.

If you

Here is what to do.

Telephone

Call us at 1-800-827-1000. If you

use a Telecommunications Device

for the Deaf (TDD), the number is

1-800-829-4833.

Send electronic inquiries through

the Internet at htpps://iris.va.gov

Put your full name and VA file

number on the letter. Please send

all correspondence to the address

at the top of this letter.

Use the Internet

Write

In all cases, please refer to your VA file number CSS

[redacted].

If you are looking for general information about

benefits and eligibility, you should visit our website at

74a

https://www.va.gov, or search the Frequently Asked

Questions at https://iris.va.gov.

We sent a copy of this letter to your

representative, American Legion, whom you can also

contact if you have any questions or need assistance.

Sincerely yours,

/s/ K. Malin

K. Malin

Veterans Service Center Manager

Email us at: https://iris.va.gov

Enclosure(s):

VA Form 21-8764

VA Form 4107

cc: American Legion

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APPENDIX E

RELEVANT STATUTES AND REGULATIONS

38 U.S.C. § 1131. Basic entitlement

For disability resulting from personal injury

suffered or disease contracted in line of duty, or for

aggravation of a preexisting injury suffered or disease

contracted in line of duty, in the active military, naval,

air, or space service, during other than a period of war,

the United States will pay to any veteran thus disabled

and who was discharged or released under conditions

other than dishonorable from the period of service in

which said injury or disease was incurred, or

preexisting injury or disease was aggravated,

compensation as provided in this subchapter, but no

compensation shall be paid if the disability is a result

of the veteran’s own willful misconduct or abuse of

alcohol or drugs.

38 U.S.C. § 5304. Prohibition against

duplication of benefits

(a)(1) Except as provided in section 1414 of title

10 or to the extent retirement pay is waived under

other provisions of law, not more than one award of

pension, compensation, emergency officers’, regular, or

reserve retirement pay, or initial award of naval

pension granted after July 13, 1943, shall be made

concurrently to any person based on such person’s own

service or concurrently to any person based on the

service of any other person.

(2) Notwithstanding the provisions of paragraph

(1) of this subsection and of section 5305 of this title,

pension under section 1521 or 1541 of this title may be

paid to a person entitled to receive retired or

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retirement pay described in section 5305 of this title

concurrently with such person’s receipt of such retired

or retirement pay if the annual amount of such retired

or retirement pay is counted as annual income for the

purposes of chapter 15 of this title.

(b)(1) Except as provided in paragraphs (2) and

(3) of this subsection and in section 1521(i) of this title,

the receipt of pension, compensation, or dependency

and indemnity compensation by a surviving spouse,

child, or parent on account of the death of any person,

or receipt by any person of pension or compensation on

account of such person’s own service, shall not bar the

payment of pension, compensation, or dependency and

indemnity compensation on account of the death or

disability of any other person.

(2) Benefits other than insurance under laws

administered by the Secretary may not be paid or

furnished to or on account of any child by reason of the

death of more than one parent in the same parental

line; however, the child may elect one or more times to

receive benefits by reason of the death of any one of

such parents.

(3) Benefits other than insurance under laws

administered by the Secretary may not be paid to any

person by reason of the death of more than one person

to whom such person was married; however, the person

may elect one or more times to receive benefits by

reason of the death of any one spouse.

(c) Pension, compensation, or retirement pay on

account of any person’s own service shall not be paid to

such person for any period for which such person

receives active service pay.

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(d)(1) Other than amounts payable under section

1413a or 1414 of title 10, the amount of pension and

compensation benefits payable to a person under this

title shall be reduced by the amount of any lump sum

payment made to such person under section 1415 of

title 10.

(2) The Secretary shall collect any reduction

under paragraph (1) from amounts otherwise payable

to the person under this title, including pension and

compensation payable under this title, before any

pension and compensation payments under this title

may be paid to the person.

38 C.F.R. § 3.654. Active service pay.

(a) General. Pension, compensation, or

retirement pay will be discontinued under the

circumstances stated in § 3.700(a)(1) for any period for

which the veteran received active service pay. For the

purposes of this section, active service pay means pay

received for active duty, active duty for training or

inactive duty training.

(b) Active duty.

(1) Where the veteran returns to active duty

status, the award will be discontinued effective the day

preceding reentrance into active duty status. If the

exact date is not known, payments will be discontinued

effective date of last payment and as of the correct date

when the date of reentrance has been ascertained from

the service department.

(2) Payments, if otherwise in order, will be

resumed effective the day following release from active

duty if claim for recommencement of payments is

received within 1 year from the date of such release:

otherwise payments will be resumed effective 1 year

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prior to the date of receipt of a new claim. Prior

determinations of service connection will not be

disturbed except as provided in § 3.105. Compensation

will be authorized based on the degree of disability

found to exist at the time the award is resumed.

Disability will be evaluated on the basis of all facts,

including records from the service department relating

to the most recent period of active service. If a

disability is incurred or aggravated in the second

period of service, compensation for that disability

cannot be paid unless a claim therefor is filed.

(c) Training duty. Prospective adjustment of

awards may be made where the veteran waives his or

her Department of Veterans Affairs benefit covering

anticipated receipt of active service pay because of

expected periods of active duty for training or inactive

duty training. Where readjustment is in order because

service pay was not received for expected training duty,

retroactive payments may be authorized if a claim for

readjustment is received within 1 year after the end of

the fiscal year for which payments were waived.