Veteranclaims’s Blog

September 10, 2012

Federal Circuit Application, 38 U.S.C.1701; Disability

Filed under: Uncategorized — Tags: — veteranclaims @ 6:23 pm

Excerpt from decision below:
“Mr. Heckman is correct that the term “disability” is not defined in the section dealing with a non-service disability pension. Other statutory and regulatory sections, however, define “disability” in a similar context as a physical or mental impairment. See 38 U.S.C. §1701 (“The term ‘disability’ means a disease, injury, or other
physical or mental defect.”); 38 C.F.R. § 4.15 (“Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation . . . .”). This definition is also consistent with the plain meaning of the word “disability.”
For example, The American Heritage Dictionary of the English Language, 4th Ed. (2006), and Webster’s Third New International Dictionary of the English Language Unabridged, (2002), both define “disability” as “the condition of being disabled.” “Disabled,” in turn, is defined as “impaired, as in physical functioning” and “incapacitated by or as if by illness, injury, or wounds,” respectively. Id.”
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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
__________________________
CHARLES W. HECKMAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7079
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 10-3226, Judge Robert N. Davis.
___________________________
Decided: September 10, 2012
___________________________
CHARLES W. HECKMAN, of Olympia, Washington, pro
se.
K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondentappellee.
With her on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE DAVIDSON,
Director, TODD M. HUGHES, Deputy Director. Of counsel
HECKMAN v. SHINSEKI 2
on the brief were DAVID J. BARRANS, Deputy Assistant
Attorney General, and AMANDA R. BLACKMON, United
States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before PROST, MOORE, and REYNA, Circuit Judges.
PER CURIAM.
Charles W. Heckman petitions for review of the decision
of the United States Court of Appeals for Veterans
Claims (CAVC) affirming the September 2, 2010 decision
of the Board of Veterans’ Appeals (the Board) denying his
claim for non-service-connected pension benefits before
August 23, 2006. Heckman v. Shinseki, No. 10-3226 (Vet.
App. Jan. 19, 2012). For the reasons discussed below, we
affirm.
BACKGROUND
Mr. Heckman is a decorated Vietnam veteran who
served on active duty in the United States Air Force from
January 1964 to November 1968. In 2001, Mr. Heckman
filed a claim seeking non-service-connected pension
benefits based on his belief that his status as a Vietnam
veteran was a disability that disqualified him from employment
in the United States. Though Mr. Heckman has
physical disabilities including hypertension, conjunctivitis,
rosacea, and a right knee disability, he argued that
his status as a veteran, and not a physical or mental
disorder, prevented him from obtaining employment. In
January 2005, the Veterans Affairs (VA) regional office
denied Mr. Heckman’s claim, and he did not appeal.
In January 2006, Mr. Heckman filed a second claim
seeking non-service-connected pension benefits, again
based on the theory that his status as a Vietnam veteran
HECKMAN v. SHINSEKI 3
is a disability. In September 2006, the VA regional office
granted Mr. Heckman a pension based on his attainment
of age sixty-five effective August 23, 2006, the day of his
sixty-fifth birthday. The VA regional office determined
Mr. Heckman had a forty percent combined disability
rating, but noted that the benefits were not based upon a
disability affecting employment. Mr. Heckman appealed
the September 2006 decision to the Board, claiming that
he was entitled to an earlier effective date for the award
based on total disability due to the negative perceptions of
his status as a Vietnam veteran. Additionally, Mr.
Heckman argued that the VA failed in both its duty to
assist and its duty to notify him of the January 2005
decision denying his claim. The Board rejected Mr.
Heckman’s arguments and concluded that he did not meet
the criteria for an earlier assignment of pension benefits.
Mr. Heckman appealed to the CAVC. Mr. Heckman
first argued that the VA misinterpreted the word “disability,”
as used in 38 U.S.C. §§ 1502(a) and 5110(a). Mr.
Heckman claimed the VA’s narrow understanding of
“disability” was contrary to Congressional intent and the
plain meaning of the word. He next argued that the VA
failed in its duty to assist him by not providing access to
his records. Finally, Mr. Heckman claimed the VA failed
to give him notice of the January 2005 denial of his claim.
The CAVC disagreed. It held that “disability,” as used
in the statute, requires a physical or mental impairment,
and not just status as a veteran. Although the CAVC
found that the VA may have failed to assist Mr. Heckman
in obtaining his records, it concluded any error was harmless
because the records did not contain evidence that
would support his legally deficient claim. Finally, the
CAVC found that the VA had given Mr. Heckman sufficient
notice of the January 2005 denial. Mr. Heckman
HECKMAN v. SHINSEKI 4
timely appealed. We have jurisdiction pursuant to 38
U.S.C. § 7292(a).
DISCUSSION
We have jurisdiction to review a CAVC decision “with
respect to the validity of a decision of the [CAVC] on a
rule of law or of any statute or regulation . . . or any
interpretation thereof (other than a determination as to a
factual matter) that was relied on by the [CAVC] in
making the decision.” 38 U.S.C. § 7292(a). We do not
have jurisdiction to review factual determinations absent
a constitutional challenge. Id. We must set aside any
decision by the CAVC that is found to be “(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right,
power, privilege, or immunity; (C) in excess of statutory
jurisdiction, authority, or limitations, or in violation of a
statutory right; or (D) without observance of procedure
required by law.” 38 U.S.C. § 7292(d)(1).
Pursuant to 38 U.S.C. §§ 1513 and 1521, a “veteran . .
. who is 65 years of age or older” and has “served in the
active military, naval, or air service for ninety days or
more during a period of war” shall receive a pension. 38
U.S.C. §§ 1513, 1521. This pension is a “service pension”
and does not require a disability. See id. To receive a
non-service-connected disability pension before the age of
65, a veteran must meet the ninety day service requirement
and also be “permanently and totally disabled from
[a] non-service-connected disability not the result of the
veteran’s willful misconduct.” 38 U.S.C. § 1521(a). To be
considered “permanently and totally disabled” a veteran
must be:
(1) A patient in a nursing home for long-term care
because of disability.
HECKMAN v. SHINSEKI 5
(2) Disabled, as determined by the Commissioner
of Social Security for purposes of any benefits administered
by the Commissioner.
(3) Unemployable as a result of disability reasonably
certain to continue throughout the life of
the person.
(4) Suffering from—
(A) Any disability which is sufficient to render it
impossible for the average person to follow a substantially
gainful occupation, but only if it is reasonably
certain that such disability will continue
throughout the life of the person ; or
(B) any disease or disorder determined by the Secretary
to be of such a nature or extent as to justify
a determination that persons suffering therefrom
are permanently and totally disabled.
38 U.S.C. § 1502.
Effective August 2006, Mr. Heckman was entitled to a
“service pension” because he reached the age of 65 and
had served over ninety days of active service during the
Vietnam War. Though the VA regional office explained
the pension was awarded because Mr. Heckman reached
the age of 65, Mr. Heckman argues that prior to 2006 he
qualified for a pension because he was “permanently and
totally disabled” based on unemployability, and that his
inability to find employment in the United States is due
to his status as a Vietnam veteran. Because he believes
his status as a Vietnam veteran is a disability or “perceived
disability,” Mr. Heckman claims that he is “permanently
and totally disabled” pursuant to 38 U.S.C.
§ 1502(4)(A) and was therefore entitled to an earlier date
for his non-service-disability pension.
HECKMAN v. SHINSEKI
6
Mr. Heckman is correct that the term “disability” is not defined in the section dealing with a non-service disability pension. Other statutory and regulatory sections, however, define “disability” in a similar context as a physical or mental impairment. See 38 U.S.C. §1701 (“The term ‘disability’ means a disease, injury, or other
physical or mental defect.”); 38 C.F.R. § 4.15 (“Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation . . . .”). This definition is also consistent with the plain meaning of the word “disability.”
For example, The American Heritage Dictionary of the English Language, 4th Ed. (2006), and Webster’s Third New International Dictionary of the English Language Unabridged, (2002), both define “disability” as “the condition of being disabled.” “Disabled,” in turn, is defined as “impaired, as in physical functioning” and “incapacitated by or as if by illness, injury, or wounds,” respectively. Id.
Finally, we note that under Mr. Heckman’s definition, every veteran would immediately be eligible for a pension. This cuts against the plain language of the statute, which is limited to a “veteran . . .
who meets the service requirements of this section . . . and who is permanently and totally disabled from nonservice-connected disability.” 38 U.S.C. § 1521(a) (emphasis added). We therefore conclude that the CAVC correctly held that Mr. Heckman’s status as a veteran is not a “disability” within the meaning of the statute. We have considered Mr. Heckman’s remaining arguments on appeal and find them unpersuasive.
AFFIRMED
COSTS
No costs.

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