Veteranclaims’s Blog

August 25, 2013

Single Judge Application, Trafter v. Shinseki, __Vet.App. __, __, 2013 U.S. App. Vet. LEXIS 652 (April 29, 2013)

Excerpt from decision below:

“Within the complex veterans benefits scheme, if VA’s interpretation of the statutes is reasonable, the courts are precluded from substituting their judgment for that of VA, unless the Secretary has exceeded his authority; the Secretary’s action was clearly wrong; or the Secretary’s interpretation is unfavorable to veterans, such that it conflicts with the beneficence underpinning VA’s veterans benefits scheme, and a more liberal construction is available that affords a harmonious interplay between provisions. Trafter v. Shinseki, __Vet.App. __, __, 2013 U.S. App. Vet. LEXIS 652 (April 29, 2013).”

—————————

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0962
ORAL J. ROBINSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Oral J. Robinson, appeals through counsel a
February 27,
2012, Board of Veterans’ Appeals (Board) decision in which the Board
determined that VA acted
appropriatelywhen it withheld a portion of the disability benefits due to
him for the period from July
21, 1999, until November 5, 2004. Record (R.) at 3-10. This appeal is
timely and the Court has
jurisdiction over the matters on appeal pursuant to 38 U.S.C. §§ 7252(a)
and 7266. Single-judge
disposition is appropriate when the issue is of “relative simplicity” and ”
the outcome is not
reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the reasons that
follow, the Court will affirm the Board’s decision.
On January 16, 2013, the Secretary moved that proceedings in this case be
stayed until
issuance of a decision in a related case then pending before a panel of
this Court. It appears that the
Court never responded to the Secretary’s motion. The Court issued a
decision in the related case on
February 27, 2013. See ShephardNext Hit v. Shinseki, 26 Vet.App. 159 (2013). On
May 29, 2013, the
appellant notified the Court about the decision and acknowledged that it
mayapplyto the arguments
he raised in his brief and reply brief. The Court will address the
decision in detail below. The
Secretary’s motion is therefore moot and it is denied.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from December 1976
until December
1979. R. at 1847. In December 1990, the appellant filed a claim for
disability benefits for a back
injury. R. at 1841-44. In May 1991, the VA regional office (RO) granted
the appellant entitlement
to disability benefits for a chronic lumbar strain and assigned his
disorder a 10% disability rating
effective September 27, 1990. R. at 1821-22. In June 1991, the RO sent the
appellant a letter
informing him that, because he was incarcerated on the effective date of
his award of disability
benefits and remained incarcerated, half of his disability compensation
payment would be withheld
for the entire period for which it was then due. R. at 1811-12. The RO
informed the appellant that
he would receive a retroactive disabilitybenefit payment within three
weeks. R. at 1811. In October
1992, the Board denied the appellant entitlement to a disability rating
greater than 10% for his
lumbar disorder. R. at 1790-94. In July 1993, the RO denied the appellant
entitlement to an
increased disability rating for his disorder. R. at 1762-63. The appellant
was released from prison
on December 21, 1993. R. at 1711.
In May 1997, the appellant informed VA that he was again incarcerated. R.
at 1697. In a
June 1997 letter, VA proposed to reduce the disability compensation paid
to the appellant to half of
the amount paid for a 10% disability rating effective the 61st day of his
imprisonment, as required
by regulation. R. at 1688-89. In September 1997, VA informed the appellant
that it would
implement the reduction in his disability benefits payments that it had
proposed. R. at 1686.
InJune 1999, the appellant requested that the disabilityratingassignedto
his lumbardisorder
be increased. R. at 1650-51. In August 1999, the RO denied the appellant
entitlement to a disability
rating greater than 10% for his disorder. R. at 1643-44. In September 1999,
the RO issued a
Statement of the Case confirming its decision, and in October 1999 the
appellant appealed to the
Board. R. at 1625-31.
In January 2001, the Board remanded the appellant’s claim for additional
development. R.
at 1574-81. In January2002, the Board denied the appellant entitlement to
a disability rating greater
than 10% for his lumbar disorder. R. at 1301-14. In October 2003, the
parties submitted a joint
motion requesting that the Court vacate the Board’s decision and remand
the matter for additional
2

development. R. at 1245-53. On October 22, 2003, the Court granted the
parties’ motion. R. at
1244.
According to a November 2004 document, an official from the appellant’s
prison informed
VA that the appellant would be released on November 5, 2004. R. at 1192-93.
In February 2005,
the RO increased the disability rating assigned to the appellant’s lumbar
disorder to 40% effective
December 4, 2004. R. at 1179-82. In June 2005, the appellant submitted a
Notice of Disagreement
with the RO’s decision. R. at 1134, 1147. In January 2006, the RO issued a
Statement of the Case
in which it denied the appellant entitlement to an effective date prior to
December 4, 2004, for
assignment of a 40% disability rating to his lumbar disorder. R. at 851-83.
In February 2006, the
appellant appealed to the Board. R. at 844-45.
In December 2007, the Board denied the appellant entitlement to a
disability rating greater
than 10% for his lumbar disorder for the period from September 27, 1990,
until July 20, 1999, and
granted the appellant entitlement to a 40% disability rating for his
disorder for the period beginning
on July 21, 1999. R. at 286-311. In January 2008, the RO issued a decision
implementing the
Board’s decision. R. at 281-84. In February 2008, VA sent the appellant a
letter explaining the
disability benefits he was entitled to receive and informing him that
disability compensation greater
than the amount paid for a 10% disability rating would be withheld for the
period from August 1,
1999, until November 5, 2004, “because you were incarcerated and only
entitled to the 10%
disability rate.” R. at 270-76. In July 2008, the appellant submitted a
Notice of Disagreement
challenging the RO’s decision. R. at 242-43.
In a February 2010 memorandum decision, the Court vacated the portion of
the December
2007 Board decision denying the appellant entitlement to a disability
rating greater than 10% for his
lumbar disorder for the period prior to July 1999. R. at 66-71. The Court
also determined that the
appellant had abandoned the issue of entitlement to a disability rating
greater than 40% for his
lumbar disorder for the period beginning on December 4, 2004. R. at 66.
In April 2010, the RO issuedaStatementoftheCaseconfirmingits earlier
determination that
the appellant’s disability benefits payments should be reduced for his
period of incarceration. R. at
158-73. In June 2010, the appellant appealed to the Board. R. at 2188. In
a November 2010
decision, the Board denied the appellant entitlement to a disability
rating greater than 10% for his
3

lumbar disorder for the period from September 27, 1990, until June 21,
1993, and granted the
appellant entitlement to a 20% disability rating for his disorder for the
period from June 21, 1993,
until July 20, 1999. R. at 35-47. In the introduction to its decision, the
Board determined that the
appellant failed to perfect his appeal of the RO’s January 2008 decision
that, in part, reduced his
disability benefits payment for his period of incarceration, and it
concluded that the RO’s decision
“is not on appellate status.” R. at 37.
On August 24,2011,thepartiessubmittedajoint motion requesting that the
Court vacate and
remand the Board’s November 2010 decision. R. at 24-28. The appellant
conceded that the Board’s
disposition of his request for an increaseddisabilityratingfor his lumbar
disorder for the period from
September 27, 1990, until July 20, 1999, should be affirmed. R. at 24. The
parties agreed, however,
that remand was warranted for the Board to reconsider its conclusion that
the appellant had not
perfected his appeal of the RO’s decision to reduce his disability
compensation payment for the
period of his incarceration. R. at 24-27. On August 31, 2011, the Court
granted the parties’ joint
motion. R. at 23.
On February 27, 2012, the Board issued its decision here on appeal. R. at
3-10. The Board
concluded that VA acted appropriately when it reduced the amount of
disability compensation paid
to the appellant during his period of incarceration. Id.
II. ANALYSIS
Congress has deemed it appropriate to instruct VA to
reducetheamountofdisabilitybenefits
paid to a veteran incarcerated for a felony conviction. Pursuant to 38 USC
§ 5313(a)(1) “Limitation
on payment of compensation . . . to persons incarcerated for conviction of
a felony,”
any person who is entitled to compensation . . . and who is incarcerated
in a Federal,
State, local, or other penal institution or correctional facility for a
period in excess of
sixty days for conviction of a felony shall not be paid such compensation
. . . for the
period beginning on the sixty-first day of such incarceration and ending
on the day
such incarceration ends, in an amount that exceeds – (A) in the case of
a veteran with
a service-connected disability rated at 20 percent or more, the [
equivalent of a 10%
disability rating]; or (B) in the case of a veteran with a service-
connected disability
not rated at 20 percent or more . . . one-half of the rate of compensation
payable[.]
4

The appellant raised three arguments concerning VA’s application of
section 5313(a)(1) to
his benefits. First, the appellant asserted that “[b]ecause his award of
benefits remained in effect
throughout his incarceration, and he retained an inherent proprietary
interest in these benefits, . . .
the compensation benefits withheld by the Secretary during this period
should now be released to
him because he is no longer incarcerated.” Appellant’s Brief (Br.) at 9.
The appellant, citing Snyder
v. Nicholson, 489 F.3d 1213, 1217-20 (Fed. Cir. 2007), argued that section
5313 cannot be read to
mean that benefits to which he is entitled but which were withheld during
his incarceration may be
permanently retained by VA. Id. at 9-11.
As the appellant acknowledged in his May 29, 2013, submission, the Court’s
decision in
Previous HitShephardNext Hit contains precedential conclusions that directly and decisively
apply to the appellant’s
argument. 26 Vet.App. at163-68. In Previous HitShephardNext Hit, the Court determined that
section 5313(a)(1) clearly
conveys Congress’s intention that “[d]isabilitycompensation shall not be
paid to certain incarcerated
veterans for a designated period of their incarceration.” 26 Vet.App. at
164. The Court considered
and rejected the argument raised here by the appellant, finding that “the
statute contains neither an
implicit nor explicit command to pay, upon a veteran’s release from
incarceration, those sums
previously reduced. Rather [it] acts as an affirmative prohibition on the
Secretary’s general
obligation to pay a veteran’s award of compensation.” Id. Finally, the
Court considered the
implications of the Snyder decision, but found that Snyder “does not
support [an] interpretation of
section 5313(a)(1)” that would allow withheld benefits to be returned to a
veteran upon his or her
release from incarceration. Id. at 164-65. The Court concludes, therefore,
that based on this
authority, the appellant’s arguments must be rejected.
Next, the appellant argued that even if it does not agree with his
argument that the Secretary
misinterpreted and misapplied section 5313(a)(1), the Court should still
vacate and remand the
Board’s decision because the statement of reasons or bases it gave in
support of its conclusions is
inadequate. Appellant’s Br. at 13-14. When making factual determinations,
the Board is required
to provide a written statement of the reasons or bases for its findings
and conclusions adequate to
enable an appellant to understand the precise basis for the Board’s
decision as well as to facilitate
review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert
v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,
the Board must
5

analyze the credibility and probative value of the evidence, account for
the evidence that it finds
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.
The appellant asserted that the Board’s statement of reasons or bases is
inadequate because
it failed to “address the appellant’s assertion that the reasoning found
in the Federal Circuit’sdecision
in the Snyder case . . . supports his claim to the compensation benefits
the Secretary withheld while
he was incarcerated.” Appellant’s Br. at 13; Reply Br. at 5-7. The
appellant asserted that
“[d]iscussing this case law is absolutely necessary to any explanation by
the Board of how and why
it decided the case as it did.” Id.
As the Court discussed above, the Snyder decision does not support the
appellant’s
interpretation of section 5313(a)(1). The Court concludes, therefore, that
any error resulting from
the Board’s failure to discuss Snyder is not prejudicial to the appellant
and thus does not warrant
vacatur and remand of the Board’s decision. See 38 U.S.C. § 7261(b)(2);
see also Shinseki v.
Sanders, 556 U.S. 396, 406 (2009) (noting that the statute requiring this
Court to “take due account
of prejudicial error [] requires the Veterans Court to apply the same kind
of ‘harmless error’ rule that
courts ordinarily apply in civil cases”).
Finally, the appellant argued in the alternative that “the plain language
of section 5313 does
not authorize the Secretary to withhold any benefits awarded to him while
he was not actually
incarcerated.” Appellant’s Br. at 11. In December 2007, after the
appellant was released from
prison, the Board awarded him a 40% disabilityrating for the period
beginning on July21, 1999, and
extending through the remainder of his incarceration. R. at 286-311. The
appellant noted that the
RO applied section 5313(a)(1) and withheld the portion of his retroactive
benefits payment that
would have been withheld had the award been paid during his incarceration.
Appellant’s Br. at 11-
12, R. at 270-76. The appellant asserted that “[n]owhere in the statute is
there language that
authorizes the retroactive application of the statute’s taking provisions”
and that “the court should
reverse the Secretary’s erroneous interpretation of section 5313 which
allows the Secretary to
6

retroactively withhold compensation awarded after the veteran is released
from incarceration.”1
Appellant’s Br. at 12-13.
The appellant did not support his argument with citations to authority.
Instead, he asserted
that the plain meaning of section 5313(a)(1) is “easily discerned,” and he
engaged in a syntactic
dissection of the provision that he believes demonstrates that his release
from prison foreclosed its
application to retroactive benefits he later received. Appellant’s Br. at
12. The appellant’s argument
is largelybased on Congress’s decision to use the word “is.” Id. Congress,
as the Court noted above,
wrote that “any person who is entitled to compensation . . . and who is
incarcerated . . . for a period
in excess of sixty days for conviction of a felony shall not be paid such
compensation . . . for the
periodbeginningon the sixty-first dayof
suchincarcerationandendingonthedaysuchincarceration
ends.” 38 U.S.C. § 5313(a)(1) (emphasis added). Because the “operative
language” of the statute
“is stated entirelyin the present tense,”the appellant argued, a ”
retroactive application of the statute’s
taking provisions” may not be applied. Appellant’s Br. at 12.
Theappellantin Snyder was granted a large retroactive award of
disabilitybenefits whilestill
incarcerated. 489 F.3d at 1214-15. The Federal Circuit stated that “[a]ny
compensation not paid to
the claimant in a given month becomes a ‘past-due benefit[],'” but the ”
amount ‘awarded’ is distinct
fromtheamountpayable,”anditis”undisputedthat[theveteran’s]
monthlycompensation [including
his retroactive award] while incarcerated was properlyreduced.” Id. at
1217-19. The appellant does
not address this interpretation of section 5313(a)(1). Id. Also, in June
1991, the appellant, who was
then incarcerated, was informed that he was entitled to a retroactive
award of disability benefits but
was told that the portion of his retroactive award resulting from benefits
that he was entitled to
receive during his incarceration would be reduced. R. at 1811-12. Again,
there is no indication that
the appellant found this application of section 5313 to be incorrect. The
appellant, therefore, has not
argued or demonstrated that 5313(a)(1) may never apply to retroactive
disability benefits. See
Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the
appellant bears the burden
of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed.
Cir. 2000) (table); Berger
In its decision, the Board acknowledged that the appellant’s disability
rating was increased after he was
released for a period of time covering the majority of his incarceration.
R. at 9. It found, however, that “the fact remains
that the 40 percent rating is effective for a portion of the time the [
appellant] was incarcerated . . . and he is not entitled
to his full compensation for the period he was incarcerated.” Id.
1
7

v. Brown, 10 Vet.App. 166, 169 (1997) (the appellant “always bears the
burden of persuasion on
appeals to this Court.”). He has only asserted that it does not apply to
retroactive benefits granted
after a veteran is released from prison, and he has asserted that this
nuance can be found in the plain
language of section 5313(a)(1).
First,theappellant’s argumentfailsto
fullycapturethenatureofVAdisabilitycompensation.
Compensation is defined as “a monthly payment made by the Secretary to a
veteran because of
service-connected disability.” 38 U.S.C. § 101(13) (emphasis added).
Indeed, the statute that
defines the amount of money payable for each disability rating states that ”
monthly compensation
shall be . . . .” 38 U.S.C. § 1114. In the context of accrued benefits,
this Court has explained that
a retroactive award is defined as a “‘periodic monetary benefit[]’ even
though the actual payment of
retroactive benefits is made in a one-time lump-sum payment, because the
benefits that the claimant
had been entitled to receive during his or her lifetime would have been
paid monthly.” Nolan v.
Nicholson, 20 Vet.App. 340, 348 (2006) (citing Wilkes v. Principi, 15 Vet.
App. 237, 241-42).
Finally, VA regulations explain that a past-due benefit is “the lump sum
payment which represents
the total amount of recurring cash payments which accrued between the
effective date of the award
. . . and the date of the grant of the benefit by the agency of original
jurisdiction.” 38 C.F.R.
§ 20.3(n) (2012). Thus, even though the appellant received a large
retroactive award after the
December 2007 Board decision, the award represented, in part, accrued
unpaid monthly payments
that were due to him during his period of incarceration. The premise of
the appellant’s argument is
therefore questionable, and the appellant does not satisfactorily answer
the clear implication that,
although paid in lump, because his retroactive benefits encompass
individual monthly payments
dating to his period of incarceration, they are subject to withholding
pursuant to section 5313(a)(1).
See Hilkert and Berger, both supra.
Next, “[d]etermining a statute’s plain meaning requires examining the
specific language at
issue and the overall structure of the statute.” Gardner v. Derwinski, 1
Vet.App. 584, 586 (1991).
“‘[E]ach part or section [of a statute] should be construed in connection
with every other part or
section so as to produce a harmonious whole.'” Meeks v. West, 12 Vet.App.
352, 354 (1999) (quoting
2A N. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (5th ed. 1992)).
The appellant did not analyze section 5313(a)(1) in the context of its
overall statutory structure, and
8

he selectively edited the provision by trimming out and declining to
discuss the importance of the
key phrase “shall not be paid such compensation . . . for the period
beginning on the sixty-first day
of such incarceration and ending on the day such incarceration ends.” 38 U.
S.C. § 5313(a)(1); see
Hilkert and Berger, both supra. In Previous HitShephardNext Document, the Court stated that section
5313(a)(1) “is clear.
Disability compensation shall not be paid to certain incarcerated veterans
for a designated period of
their incarceration.” 26 Vet.App. at 164. Moreover, the Court stated that
the statute “does not speak
in terms of the timing of payments; rather, it directs that a veteran is
not to be paid ‘for the period’
of incarceration.” Id. The Court therefore agrees with the Secretary that
the appellant’s parsing of
section 5313(a)(1) does not convincingly reveal that Congress plainly
intended that the statute not
applyto anappellantwhohasreceived aretroactiveawardofdisabilitybenefits
meantto compensate
him for a time period that includes his incarceration but that was granted
after his release from
prison. Secretary’s Br. at 19-20. Furthermore, the appellant has cited to
no authority enunciating a
canon of construction that would support his assertion that a lack of
specific authorization for
retainment of retroactive benefits for a veteran with his circumstances
may be read as a positive
restriction against retainment action by the Secretary. See Hilkert and
Berger, both supra;
Appellant’s Br. at 12.
If a statute “is silent . . . with respect to the specific issue, the
question for the Court is
whether the agency’s answer is based on a permissible construction of the
statute.” Chevron v. Nat’l
Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
Within the complex veterans benefits scheme, if VA’s interpretation of the statutes is reasonable, the courts are precluded from substituting their judgment for that of VA, unless the Secretary has exceeded his authority; the Secretary’s action was clearly wrong; or the Secretary’s interpretation is unfavorable to veterans, such that it conflicts with the beneficence underpinning VA’s veterans benefits scheme, and a more liberal construction is available that affords a harmonious interplay between provisions. Trafter v. Shinseki, __Vet.App. __, __, 2013 U.S. App. Vet. LEXIS 652 (April 29, 2013).

In Wanless v. Shinseki, 23 Vet.App. 143, 148 (2009), the Court determined
that Congress
implemented section 5313(a)(1) based in part on its concern that “if the
taxpayers are financing a
veteran’s incarceration, it is contrary to the public good to also pay him
full VA disability benefits.”
The Court further concluded that “Congress’s main stated objective [was]
the avoidance of
9

duplicativeGovernmentexpendituresthatwouldresultin
awindfallforthoseconvictedoffelonies.”
Id. at 149.
Pursuantto theappellant’sinterpretationofsection5313(a)(1),aveteranwhois
releasedfrom
prison even one day before a decision granting him entitlement to
retroactive disability benefits
would enjoythe “windfall”of VA benefits awarded to him for the same period
the state also financed
his incarceration, while other veterans still incarcerated but awarded
similar benefits would not. The
appellant has not sufficiently demonstrated that the Secretary’s view that
the statute countenances
no such demarcation is impermissible. See Trafter, Hilkert, and Berger,
all supra. The Court
concludes, therefore, that the appellant has not persuasively shown that
benefits due to him during
his period of incarceration are not subject to reduction under section
5313(a)(1).

III. CONCLUSION
The Secretary’s January 16, 2013, motion to stay is DENIED as moot. After
consideration
of the appellant’s and the Secretary’s briefs and a review of the record,
the February 27, 2012, Board
decision is AFFIRMED.
DATED: June 28, 2013
Copies to:
Sean A. Kendall, Esq.
VA General Counsel (027)
10

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