Fed Circ upholds VA cutoff on resuming disability benefits

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Members of the army and Air National Guard in New Rochelle, N.Y. , March 23, 2020. REUTERS/Andrew Kelly

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  • 2-1 majority: ‘Gap-filling’ rule entitled to deference
  • Dissent: Punishment for answering ‘call to return to duty’

(Reuters) - Partially disabled veterans whose benefits are suspended when they are recalled to active duty are not automatically entitled to benefits once their tours of duty end, a divided federal appeals court held.

In a 2-1 decision Friday, the U.S. Court of Appeals for the Federal Circuit upheld a Veterans Affairs regulation under which the veteran must apply for “recommencement” of benefits, with the cutoff date for any past-due benefits set at one year before the application date.

The rule was challenged by former Air National Guard member Thomas Buffington, who lost three years of partial disability benefits because he applied for recommencement four years after his last tour of duty. He was represented by Finnegan, Henderson, Farabow, Garrett & Dunner and the National Veterans Legal Services Program, with amicus support from the New Civil Liberties Alliance.

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Buffington’s lawyers and the NCLA argued that the one-year limit is contrary to the text and purpose to Title 38 - the Veterans Benefits Code - and the “pro-veteran canon,” under which ambiguities in a statute are to be resolved in the veteran's favor.

The majority, however, said the pro-veteran canon did not apply because the statute was silent, not ambiguous: Congress specified that disability benefits end the day before active duty begins, but never stated when they would resume.

Under the Chevron deference standard, Congress’s silence on the resumption date required the court to uphold any “permissible construction” by the VA, Chief Circuit Judge Kimberly Moore wrote.

The one-year cutoff “is a reasonable gap-filling regulation” that encourages veterans to promptly file for recommencement, which “promotes the efficient administration of benefits,” Moore wrote. She was joined by Circuit Judge Alan Lourie.

Circuit Judge Kathleen O’Malley dissented, saying there was no gap for the regulation to fill because the “plain text of Title 38” discontinues veterans’ benefits only “during ‘any period’ of active service pay.”

The VA regulation “serves no purpose other than to deny disability benefits … solely because these men and women answered the call to return to active duty,” O’Malley wrote.

“Judge O’Malley’s dissent was correct,” said NCLA Senior Litigation Counsel Rich Samp.

“Had the majority engaged in the required analysis, it would have been forced to conclude (as Judge O’Malley concluded) that Congress did not intend to deny service-connected disability benefits to those already determined to be eligible for benefits, simply because the veteran delayed in informing the VA that he was no longer in active service,” Samp wrote in an email.

Buffington’s attorneys did not immediately respond to requests for comment on Friday. Neither did the Veterans Administration and its attorneys.

According to the Federal Circuit, Buffington served in the Guard from 1992 until 2000, when he was diagnosed with service-related tinnitus and assigned a 10 percent disability rating.

He received disability benefits until 2003, when he was recalled to active duty for two years. He filed for recommencement of benefits in February 2009 and was awarded benefits from February 2008 onward.

Buffington’s case reached the U.S. Court of Appeals for Veterans Claims in 2017. It affirmed the VA’s ruling last year, leading to Friday’s split decision by the Federal Circuit.

The case is Buffington v. McDonough, Secretary of Veterans Affairs, U.S. Court of Appeals for the Federal Circuit, No. 20-1479.

For Buffington: Doris Johnson Hines and A. Grace Klock Mills of Finnegan, Henderson, Farabow, Garrett & Dunner; Barton Stichman of National Veterans Legal Services Program

For McDonough: Shari Rose of the U.S. Justice Department; Brian Griffin of the U.S. Veterans Affairs Department

For Amicus New Civil Liberties Alliance: Rich Samp

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