Veteranclaims’s Blog

March 5, 2011

Sharp v. Shinseki, No. 07-2481, EED Dependents Compensation

Filed under: Uncategorized — Tags: , — veteranclaims @ 3:50 pm

—————————————————-

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 07-2481
PAMELA J. SHARP, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued July 23, 2009
Decided October 15, 2009 )
Sandra E. Booth, of Columbus, Ohio, for the appellant.
TracyK.Alsup, with whom PaulJ.Hutter,General Counsel;R.RandallCampbell,
Assistant
General Counsel; and David L. Quinn, Deputy Assistant General Counsel, all
of Washington, D.C.,
were on the brief for the appellee.
Before MOORMAN, LANCE, and DAVIS, Judges.
DAVIS, Judge: Pamela J. Sharp, surviving spouse of veteran James O. Sharp,
appeals from
an April 26, 2007, Board of Veterans’ Appeals (Board) decision that denied
her entitlement to
accrued benefits pursuant to 38 U.S.C. § 5121. Ms. Sharp’s appeal is
premised on her husband’s
claim for an earlier effective date for additional compensation for
dependents that was pending at
the time of his death.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and
7266(a) to review the April 2007 Board decision. For the reasons below,
the Court will reverse the Board’s finding that no law entitled the veteran to an earlier effective date for additional compensation for dependents. The Court will set aside the April 2007 decision and remand the matter for the Board to calculate and award the appropriate accrued benefits consistent with this decision.

I. BACKGROUND
On August 24, 1995, the Board granted Mr. Sharp’s service-connection claim ”
for a hip
disorder characterized as avascular necrosis with biltateral hip
replacement.” Record (R.) at 687-
702. The Cleveland, Ohio, VA regional office (RO), charged with
implementing the August 1995
Board decision, issued a letter on December 1, 1995, setting out Mr.
Sharp’s past-due benefits. The
letter also informed Mr. Sharp that
[y]ou may be entitled to additional compensation for your dependents.
Before we
can pay this, however, you will need to complete and return the enclosed
VA Form
21-686c showing complete information concerning your present marriage and
all
prior marriages for you and your wife, and showing who has custody of your
children. You will also need to submit your children’s Social Security
numbers.
We currently have in your file a copy of your marriage certificate for
your marriage
to Pamela, and birth certificates for Catherine, Christine, and James. If
you are
currentlymarried to someone other than Pamela, and/or have additional
children you
wish to claim as dependents, you will need to send us a copy of your
marriage
certificate and the birth certificates and Social Security numbers for any
additional
children.
If Catherine and/or James were in school after their 18th birthdays,
additional
benefits may be payable for their schooling. If they were in school after
age 18,
complete and return the enclosed VA Form(s) 21-674[.]
If we do not receive this within one year of the date of this letter, we
will not be able
to payadditional benefits for your dependents anyearlier than the date we
do receive
it.
R. at 794-95.
VA did not receive the requested information until December 9, 1996, more
than one year
after the date of the letter. See R. at 879-89. On December 17, 1996, the
RO notified Mr. Sharp of
his increased benefits effective January 1, 1997–the first day of the
month following submission of
the evidence requested because the evidence was not received until more
than one year after VA’s
request. See R. at 899. The RO also notified Mr. Sharp’s attorney of the
latest award and discussed
the reasoning for the effective date assigned. See R. at 902. Mr. Sharp
did not appeal that decision.
See Appellant’s Brief at 3.
2

In November 1998, the RO determined that Mr. Sharp was unemployable as a
result of his
service-connected disabilities and awarded him a 100% disability rating
based on total disability for
individual unemployability(TDIU), effective December 1, 1988. See R. at
1250. Shortlythereafter,
Mr. Sharp submitted a Notice of Disagreement with the TDIU award because
it did not include
additional compensation for dependents retroactive to 1988. See R. at 1266-
68. In a Statement of
the Case (SOC), the RO determined that additional compensation for
dependents was previously
established and that the later grant of TDIU “was not a new basis to
establish dependent[ status] from
an earlier date.” R. at 1297. Mr. Sharp sought Board review in May 1999 (
see R. at 1299), but he
died on December 18, 1999, while that appeal was still pending (see R. at
1304).
Ms. Sharp filed her original claim for dependency and indemnity
compensation, including
accrued benefits, in January 2000. See R. at 1311-14. The RO first denied
her accrued benefits
claim because it determined that accrued benefits could not be awarded
beyond the two years
immediately preceding death. See R. at 1323. The Board and this Court
subsequently affirmed that
decision. See R. at 1384-93; Sharp v. Principi, 17 Vet.App. 431 (2004) (
accrued benefits limited
to two years immediately preceding death). The U.S. Court of Appeals for
the Federal Circuit
(Federal Circuit), however, vacated that part of the Court’s decision
limiting accrued benefits
payments to the two years immediatelyprecedingdeath based on its opinion
in Terry v. Principi, 367
F.3d 1291 (Fed. Cir. 2004) (accrued benefits can be awarded for anytwo-
year period) and remanded
the accrued benefits issue to this Court. See Sharp v. Nicholson, 403 F.3d
1324 (Fed. Cir. 2005).
The Court then remanded the matter to the Board, see Sharp v. Nicholson,
20 Vet.App. 227 (2005)
(table), which remanded the matter to the RO on August 14, 2006.
In a November 7, 2006, decision, the RO denied Ms. Sharp accrued benefits
in the form of
additional compensation for dependents. The RO reasoned that the initial
decision dated December
17, 1996, granting additional compensation for dependents effective
January 1, 1997, became final
and that there is no provision in the statutes or regulations providing a
second opportunity to
establish entitlement and an earlier effective date. See R. at 1477-83.
The Board agreed with the
RO that “there is no provision in the law to award an earlier effective
date” after entitlement to
3

additional compensation for dependents had alreadybeen established. R. at
6. This appeal ensued.1
II. ARGUMENTS ON APPEAL
Ms. Sharp argues that she is entitled to accrued benefits because when her
husband died, he
had a pending appeal regarding additional compensation for dependents. In
his pending appeal,
Mr. Sharpsought an effective date of December 1, 1988, for additional
compensation fordependents
under 38 U.S.C. §§ 1115 (additional compensation for dependents) and
5110(f) (effective dates).
In appealing the denial of accrued benefits based on her husband’s claim,
Ms. Sharp asserts now that
VA’s grant of TDIU, effective December 1, 1988, was a qualifying
disability rating entitling her
husband to a new consideration of additional compensation for dependents,
effective December 1,
1988. She contends that 38 U.S.C. § 1115 is clear and unambiguous as it
mandates that a “veteran
. . . shall be entitled to additional compensation for dependents” when
certain disability percentages
are met. 38 U.S.C. § 1115. She further reasons that 38 U.S.C. § 5110(f)
supports her argument
because the statute’s language does not limit the effective date to a
particular rating decision, but
rather applies to any rating decision meeting the percentage requirements
of section 1115.
The Secretary argues that Mr. Sharp was, at the time of filing his claim,
already receiving
additional compensation for dependents, and that no authority supports the
position that he could
seek an earlier effective date for that compensation based on the TDIU
award. The Secretaryfurther
contends that section 5110(f) is clear and unambiguous in its restriction
of an effective date when
proof of dependents is not received within one year of the Secretary’s
request for such information.
The Secretary perceives Ms. Sharp’s current argument to be a “free
standing collateral attack upon
the final December 1996 RO decision which is not permitted by law.”
Secretary’s Brief at 8.
III. ANALYSIS
The ultimate question before the Court rests on whether a proper
interpretation of relevant
statutory provisions, 38 U.S.C. §§ 1115, 5110(f), requires that
entitlement to additional
On appeal, Ms. Sharp acknowledges that the version of 38 U.S.C. § 5121 in
effect in 1999, when the veteran
died, limited the survivor’s recovery to two years’ worth of accrued
benefits. She concedes that her accrued benefits
claim is subject to this two-year limit. Appellant’s Brief at 8 n.1.
1
4

compensation for dependents be premised on (1) only the first rating
decision meeting statutory
criteria or (2) any rating decision meeting the statutory criteria. The
Court reviews statutory and
regulatory interpretation de novo. 38 U.S.C. § 7261(a)(1); Majeed v.
Nicholson, 19 Vet.App. 525,
531 (2006).
A. Statutory Interpretation
“When a statute is at issue, we begin with the statutorylanguage.” McGee v.
Peake, 511 F.3d
1352, 1356 (Fed. Cir. 2008); see also Williams v. Taylor, 529 U.S. 420,
431 (2000); Myore v.
Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007). “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) (“Determiningastatute’s plainmeaningrequires examiningthe specific
language at issue and
the overall structure of the statute.” (citing Bethesda Hosp. Ass’n v.
Bowen, 485 U.S. 399, 403-05
(1988))), aff’d sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993),
aff’d, 513 U.S. 115 (1994).
If “the plain meaning of a statute is discernable, that ‘plain meaning
must be given effect,'”
Johnson v. Brown, 9 Vet.App. 369, 371 (1996) (quoting Tallman v. Brown, 7
Vet.App. 453, 460
(1995)), unless a “‘literal application of [the] statute will produce a
result demonstrably at odds with
the intention of its drafters,'” Gardner, 1 Vet.App. at 586-87 (quoting
Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564 (1982)); see also Roper v. Nicholson, 20
Vet.App. 173, 180 (2006).
The first question in statutoryinterpretation is always “whether Congress
has directlyspoken
to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S.
837, 842-43 (1984). “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. “If,
however, the court determines Congress has not directly addressed the
precise question at issue, the
court does not simply impose its own construction of the statute, as would
be necessary in the
absence of an administrative interpretation. Rather, if the statute is
silent or ambiguous 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.” Id.; see also Nat’l Ass’n of
Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 665 (2007).
1. 38 U.S.C. § 1115
The language of section 1115 clearly and succinctly addresses when a
veteran is entitled to
5

additional compensation for dependents:
Any veteran entitled to compensation at the rates provided in section 1114
of this
title, and whose disability is rated not less than 30[%], shall be
entitled to additional
compensation for dependents . . . .
38 U.S.C. § 1115. The Court cannot envision how Congress could have
created a more direct
mandate. The statute unambiguously requires the veteran to establish two
facts: (1) That he or she
is entitled to section 1114 compensation, and (2) that his or her
disability is rated not less than 30%.
The statute dictates that once the veteran establishes these two facts, he
or she shall be entitled to
additional compensation for dependents. The purpose of the statute is also
clear: “to defraythe costs
of supporting the veteran’s . . . dependents” when a service-connected
disability is of a certain level
hindering the veteran’s employment abilities. S. REP. NO. 95-1054, at 19 (
1978).
The statute, however, does not define for the veteran how to acquire this
additional
compensation–that is, whether the “additional compensation” is a
freestanding claim or part of every
claim for VA compensation benefits that resulted in a rating decision that
awarded or increased the
veteran’s disability rating above 30%. Section 1115 is also silent on the
issue of how the effective
date for such entitlement is determined. The statute simply states what
factors must exist for a
veteran to qualify for additional compensation for dependents–nothing
more, nothing less.
The limited legislative history enlightens the Court as to the purpose of
providing additional
compensation for dependents, but such history does not assist the Court in
determining whether
Congress intended additional compensation for dependents under section
1115 to be on (1) only the
first rating decision meeting statutory criteria of section 1115 or (2)
any rating decision meeting the
statutory criteria. See Chevron, supra.
Thus, based on the plain language of the statute, the Court is not
persuaded bythe Secretary’s
argument that section 1115 requires a freestanding claim for benefits. The
Court concludes that
entitlement to section 1115 compensation does not require a separate claim.
The straightforward
language of section 1115 merely means that the veteran has met certain
requirements necessary for
additional compensation. See Rice v. Shinseki, 22 Vet.App. 447, 452 (2009) (
entitlement to TDIU
“merely means that the veteran has met certain qualifications” necessary
for a total rating).
Entitlement to additional compensation for dependents under section 1115
is implicitly raised
6

whenever a veteran has a disability rating of at least 30% and submits
evidence of dependents. Cf.
Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). This view is
supported bythe plain language
of section 1115: once VA determined Mr. Sharp was “entitled to
compensation at the rates provided
in section 1114” and had a disability rating “not less than 30[%],” VA
immediately notified him that
he was “entitled to additional compensation for dependents” and Mr. Sharp
only needed to submit
updated information about his dependents to receive it. 38 U.S.C. § 1115.
2. 38 U.S.C. § 5110(f)
Section 5110(f) is the “[e]ffective date of awards” statute pertaining to
additional
compensation for dependents and provides:
An award of additional compensation on account of dependents based on the
establishment of a disability rating in the percentage evaluation
specified by law for
the purpose shall be payable from the effective date of such rating; but
only if proof
of dependents is received within one year from the date of notification of
such rating
action.
38 U.S.C. § 5110(f). The statute instructs that an award of additional
compensation is “based on the
establishment of a disabilityrating” meetingthe section 1115 requirements.
See 38 U.S.C. § 5110(f)
(emphasis added). This phrase is critical to the outcome of this case,
with both parties arguing a
different meaning. The Secretary posits that “the establishment of a
disability rating” means only
the first disability rating meeting the section 1115 requirements for
additional compensation for
dependents. Whereas Ms. Sharp contends that the phrase means any and all
disability rating
decisions that meet the statutory requirements of section 1115. The
ultimate conclusion here is that
the effective date statute does not answer the precise question at
issue–whether entitlement to
additional compensation for dependents is premised on (1) only the first
rating decision meeting
statutory criteria or (2) any rating decision meeting the statutory
criteria.
Given the contrasting interpretations of the parties, the Court first
turns to the plain meaning
of the statute. The plain meaning of a term or phrase “begins with its
‘ordinary, contemporary,
common meaning.'” McGee, 511 F.3d at 1356 (quoting Williams, 529 U.S. at
431). As this Court
recentlyiterated,”[i]t
iscommonplacetoconsultdictionariestoascertainaterm’sordinarymeaning.”
Nielson v. Shinseki, 23 Vet.App. 56, 59 (2009); see also United States v.
Rodgers, 466 U.S. 475, 479
7

(1984). “Disabilityrating” is aphrase common in veteran’s parlance. In
most basicterms, “disability
rating” is the percentage “evaluation of disability resulting from all
types of diseases and injuries
encountered as a result of or incident to military service.” 38 C.F.R. §
4.1 (2009). The indefinite
article “a,” is “[u]sed before nouns and noun phrases that denote a single,
but unspecified, person or
thing.” WEBSTER’SIINEWCOLLEGE DICTIONARY 1 (2001) [hereinafter “WEBSTER’S
“] (definition 1)
(emphasis added). “A” is also defined as “[a]ny.” WEBSTER’S at 1 (
definition 4).
Thus, the ordinary, contemporary, common meaning–or plain meaning–of ”
a disability
rating” is any single decision rating a veteran’s disability. Further
interpretation is muddied,
however, based on the overall statutory framework. The effective date of
additional compensation
for dependents is based on “the establishment of a disability rating.” 38
U.S.C. § 5110(f). Whether
a disability rating can be established more than once is unclear. As
stated above, the Secretary
believes only one rating decision, and namely the first rating decision
meeting section 1115
requirements, establishesentitlementtoadditional compensation
fordependents. Contrastingly, Ms.
Sharp argues that all rating decisions adhering to the section 1115
elements establish entitlement to
additional compensation for dependents.
The Court also looks to the overall structure of section 5110 for guidance.
Generally,
effective dates of compensation awards are attached to the date of receipt
of the application for
benefits, and no earlier. See 38 U.S.C. § 5110(a). In the subsections (b)(
1), (b)(2), (c), and (d),
effective dates can be earlier than the date of application, but only if
the application is received
within one year of a specified date. See 38 U.S.C. § 5110(b)(1) (date of
discharge or release if
application received within one year of that date); (b)(2) (earliest date
of ascertainable increase if
application received within one year of that date); (c) (date of injury or
aggravation if application
received within one year of that date); (d) (first day of month in which
death occurred if application
received within one year of that date). Significantly, each of these
originating dates is a date certain:
generally, there is only one discharge date; there is only one date an
increase is ascertainable; there
is only one date of death. Under section 5110(f), however, the effective
date is based “on the
establishment of a disability rating” meeting certain requirements. 38 U.S.
C. § 5110(f). Because
more than one disability rating can meet the specific requirements of
section 5110(f), subsection f
does not prescribe a date certain as the other subparts do. The Court
cannot conclude from a review
8

of the statutory structure that Congress intended to restrict section
5110(f) to only one date certain,
which it could have accomplished by using different language. Nothing in
the legislative history
supports such a limitation.
The Court therefore concludes that neither statute on its face nor
legislative history provides
anyguidancein answeringtheprecisequestion atissue.
Theplainlanguageandstatutoryframework
leaves a gap that must be filled. Whether entitlement to additional
compensation for dependents is
premised on (1) only the first rating decision meeting statutory criteria
or (2) any rating decision
meeting the statutory criteria is not answered by the statute. The Court
will next address whether
the Secretary has promulgated regulations that provide a reasonable
interpretation of the statutes.
See Chevron, 467 U.S. at 842-43; see also Nat’l Ass’n of Home Builders,
supra.
B. Regulatory Language
1. 38 C.F.R. § 3.4(b)(2)
Section 3.4(b)(2)oftitle38, CodeofFederal Regulations, promulgatedpursuant
to 38 U.S.C.
§ 1115, provides:
An additional amount of compensation may be payable for a spouse, child,
and/or
dependent parent where a veteran is entitled to compensation based on
disability
evaluated as 30[%] or more disabling.
38 C.F.R. § 3.4(b)(2) (2009). This regulation does not assist in the
interpretation of section 1115
because it merely parrots the statutory language. Indeed, the regulation
contains no language in
addition to that already found in the statute. Having no interpretive
value, the Agency’s regulation
does not provide a reasonable interpretation of the statute. See Chevron
and NLRB, both supra.
2. 38 C.F.R. § 3.401(b)
Section 3.401(b)oftitle38, Code of Federal Regulations, promulgated
pursuant to 38 U.S.C.
§ 5110(f), provides:
Awards of pension or compensation payable to or for a veteran will be
effective
as follows:
….
(b) Dependent, additional compensation or pension for. Latest of the
following dates:
9

….
(3) Effective date of the qualifying disability rating provided evidence
of
dependency is received within 1 year of notification of such rating action.
38 C.F.R. § 3.401(b) (2009). This regulation similarly does not aid in
discerning whether the
Secretary considers there to be only one qualifying rating, as opposed to
every rating meeting the
statutory requirements to be a qualifying rating. The Court observes that,
in an effort to outline the
selection criteria for an effective date for the award of additional
compensation for dependents, part
of the regulation states: “[e]ffective date of the qualifying disability
rating provided evidence of
dependency is received within 1 year of notification of such rating action
.” 38 C.F.R. § 3.401(b)(3)
(emphasis added).
The Court is not persuaded by the Secretary’s argument that this language
supports his
interpretation that only the first qualifying disability rating qualifies
for additional compensation.
One fair view of the matter is that this regulation narrows the statutory
language by introducing the
definite article “the” in its phrase “the qualifying rating decision.” See
Chevron, supra. In addition,
the regulation’s use of “the,” rather than the statute’s “a,” in reference
to the qualifying disability
rating simply changes the article, does nothing to resolve the issue, and
does not reflect a deliberate
effort to interpret the statute’s meaning. See Sursely v. Peake, 551 F.3d
1351, 1355 (Fed. Cir. 2009)
(concluding that the Secretary’s regulation using the word “the” rather
than the statute’s “a” in
reference to the term “clothing allowance”did not reflect a deliberate
effort to interpret the statute’s
meaning). We conclude that the regulation essentially mirrors the statute,
section 5110(f). The
regulation, including the phrase “the qualifying disability rating,” does
not clarify the question of
whether entitlement to additional compensation for dependents is premised
on (1) only the first
ratingdecisionmeetingstatutorycriteriaor(2)
anyratingdecisionmeetingthestatutorycriteria. The
question remains.
Deference to the regulation that offers no additional clarity to the
interpretive issue would
be inappropriate. See Nat’l Ass’n of Home Builders, supra. Because the
regulations mirror the
statutes, the question presented is one of statutory interpretation. See
Sursely, 551 F.3d at 1355; see
also Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (“[T]he existence of a
parroting regulation does
not change the fact that the question here is not the meaning of the
regulation but the meaning of the
10

statute.”). Under such circumstances, the Secretary’s interpretation of
the statute is not subject to
Chevron deference, see Chervon, supra, but his interpretation is entitled
to respect to the extent it
has the “power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (
1944); Haas v. Shinseki,
525 F.3d 1168, 1186 (Fed. Cir. 2008) (“[The] rule [of Chevron deference]
does not apply if a
particular regulation merely ‘parrots’ statutory language, because if it
did, an agency could bypass
meaningful rule-making procedures by simply adopting an informal
‘interpretation’ of regulatory
language taken directly from the statute in question.”). As discussed
below, we do not find the
Secretary’s interpretation persuasive.
C. Interpretation of Section 5110(f)
With no guidance from the statutes or regulations, the Court considers the
Secretary’s
interpretation of the statute. The Secretary argues that section 5110(f)
limits the retroactive award
for an effective date to the first rating decision that qualifies a
veteran for additional dependency
compensation, that is, only the first rating decision entitling a veteran
to additional compensation for
dependents. That interpretation is not entitled to deference, and the
Secretaryhas offered no support
for his interpretation.
In the face of statutory ambiguity and the lack of a persuasive
interpretation of the statute
from the Secretary, the Court applies the rule that “interpretative doubt
is to be resolved in the
veteran’s favor.” Brown v. Gardner, 513 U.S. 115, 118 (1994). It is more
favorable to veterans if
the effective date for additional dependency compensation is premised on
any rating decision
meeting the statutory criteria of section 1115, rather than on only the
first rating decision meeting
statutorycriteria. Thus, even if the Secretary’s interpretation of section
5110(f) is plausible, it would
be appropriate under Brown v. Gardner onlyif thestatutorylanguage
unambiguouslypermitted only
the first or initial disability rating decision that awarded a rating
above the minimum allowed for
additional dependency compensation (i.e., 30%). Because section 5110(f)
permits the reading
whereby any rating decision meeting the statutory criteria of section 1115
can be the basis of an
effective date for the award of additional compensation for dependents, it
is ambiguous and the rule
in Brown v. Gardner therefore requires the expansive reading of the
statute. See Sursely, 551 F.3d
at 1357.
The Court is mindful of the role of finality in decisions regarding
additional compensation
11

for dependents. But the Court notes that the status of dependents can be
ever changing. A
determination of additional compensation for dependents that is well-
settled for several years could
require alteration in situations where a new child is born, the veteran
and spouse divorce, or a
dependent ages out or dies. Each of these events requires a recalculation
not only of the amount of
benefits being awarded, but also of the effective dates assigned. Moreover,
even if the status of
dependents remains unchanged, the veteran’s level of disability can
increase or decrease several
times, also requiring a recalculation of the amount of the additional
compensation awarded and the
respectiveeffectivedates. See38U.S.C.§1115(2)(
requiringpercentageofadditionalcompensation
to be comparable to the level of disability assigned). Section 5110(f) (
effective dates) and its
corresponding regulation, 38 C.F.R. § 3.401(b), appear to be unique in
that they prescribe fluid
effective dates based on dependents’ changing circumstances and that they
are ultimately linked to
the underlying rating decisions meeting section 1115 requirements.2
In sum, the statutes are silent as to the ultimate issue, the Brown v.
Gardner rule is
applicable, and the interpretation provided by the appellant is consistent
with the statute’s plain
language. See also Nat’l Ass’n of Home Builders, 551 U.S. at 665. Thus,
consistent with the plain
language of section 1115 statute and regulations, the Court holds that
entitlement to additional
compensation for dependents is premised on any rating decision
establishing compensation under
section1114andratingthedisabilitynot less than30%. Interpretingsection
5110(f), theCourtholds
that the effective date for additional compensation for dependents shall
be the same as the date of
the rating decision giving rise to such entitlement, irrespective of
anyprevious grant of section 1115
benefits, if proof of dependents is submitted within one year of notice of
the rating action. We hold
that there can be multiple rating decisions that establish entitlement to
additional dependency
compensation. This conclusion construes the statutes in the light most
favorable to the veteran. See
Brown v. Gardner and Sursely, both supra. This holding applies to the
specific facts and
circumstance of the case before us. Because section 5110(f) did not answer
the question whether
2
The Court notes that, under the Secretary’s proposed interpretation, the
order in which a veteran’s claims are
adjudicated by the RO may control the effective date for dependents
benefits in instances in which a veteran files multiple
claims near in time. For instance, a more complicated claim may take
longer to adjudicate—particularly if it is
appealed—but yield a substantially earlier effective date than another
less complicated claim filed at or near the same
time. If we were to adopt the Secretary’s position, thereby tying
dependents benefits to the first qualifying rating granted,
then veterans could be arbitrarily disadvantaged based purely on delays in
adjudication that are beyond their control.
12

additional dependents compensation is premised on only the first rating
decision meeting the
statutorycriteriaof section1115, theCourt notes that hadthe Secretary,
ratherthanparrotthestatute,
chosen to fill in the gaps of section 5110(f) in his regulation, the
Secretary’s interpretation of the
statute would have been eligible for Chevron deference. See Chevron, 467 U.
S. at 844-45. If the
Secretary believes that this matter warrants an interpretation of the
statute that is different from the
reading given by the Court today, which is based on a reading that
resolves interpretative doubt in
the veteran’s favor, the appropriate procedure would be for the
Secretaryto exercise his authorityand
promulgate a regulation to that effect. See 38 U.S.C. § 501.
Here, the November 1998 rating decision awarding TDIU, effective December
1, 1988, was
aratingdecisionthatestablishedadditionalcompensation,
andVAreceivedtherequisiteinformation
regarding dependents within one year of the 1998 decision. Ms. Sharp is
therefore entitled to
dependents compensation at the TDIU rate from the effective date of her
husband’s TDIU rating:
December 1, 1988. As discussed above, however, her accrued benefits claim
is limited to two-years
before the veteran’s death, based on the version of 38 U.S.C. § 5121 in
effect in 1999, when the
veteran died.
III. CONCLUSION
Upon consideration of the forgoing, the Court REVERSES the Board’s April
26, 2007,
findings that no provision in the law entitles the veteran to an earlier
effective date for additional
compensation for dependents, and that Ms. Sharp is not entitled to accrued
benefits. The Court
SETS ASIDE the Board’s April 26, 2007, decision and REMANDS the matter for
implementation
of this opinion.
13

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.