Veteranclaims’s Blog

August 6, 2021

Buffington v. McDonough, No. 2020-1479( Decided: August 6, 2021 ); “statutory gap” and Chevron step one; we hold § 3.654(b)(2) reasonably fills a statutory gap; 38 C.F.R. § 3.654(b)(2) (setting effective date for recommencement of compensation, at the earliest, one year before filing);

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 KLOCK MILLS; BARTON F. STICHMAN, National Veterans
Legal Services Program, Washington, DC.
SHARI A. 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
Case: 20-1479 Document: 62 Page: 1 Filed: 08/06/2021
2 BUFFINGTON v. MCDONOUGH
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 § 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

  • Chief Judge Kimberly A. Moore assumed the position
    of Chief Judge on May 22, 2021.
    Case: 20-1479 Document: 62 Page: 2 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 3
    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 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
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    4 BUFFINGTON v. MCDONOUGH
    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 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
    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.
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    BUFFINGTON v. MCDONOUGH 5
    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 (1984).2 Step one asks “whether Congress
    has directly spoken to the precise question at issue.”
    Id. at 842. “If the intent of Congress 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. 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.
    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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    6 BUFFINGTON v. MCDONOUGH
    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.
    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,
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    BUFFINGTON v. MCDONOUGH 7
    see 38 U.S.C. § 1131;3 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
    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. § 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.
    Case: 20-1479 Document: 62 Page: 7 Filed: 08/06/2021
    8 BUFFINGTON v. MCDONOUGH
    effective date for “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 permissible construction
    of the statute.” Id. at 843. Filling the statutory gap,
    the Secretary promulgated 38 C.F.R. § 3.654(b)(2). In
    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).
    Case: 20-1479 Document: 62 Page: 8 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 9
    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 § 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
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    10 BUFFINGTON v. MCDONOUGH
    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
    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.
    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.
    Case: 20-1479 Document: 62 Page: 10 Filed: 08/06/2021
    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


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
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2 BUFFINGTON v. MCDONOUGH
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,

  1. 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 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
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    BUFFINGTON v. MCDONOUGH 3
    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 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
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    4 BUFFINGTON v. MCDONOUGH
    every silence is pregnant.”) (citation omitted), abrogated on
    other grounds by 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 serviceconnected
    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 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
    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.
    Case: 20-1479 Document: 62 Page: 14 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 5
    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 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 7–8
    (“[W]hen a disabled veteran returns to active service, his
    disability benefits are discontinued. . . . After leaving
    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.
    Case: 20-1479 Document: 62 Page: 15 Filed: 08/06/2021
    6 BUFFINGTON v. MCDONOUGH
    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 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
    Case: 20-1479 Document: 62 Page: 16 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 7
    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 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
    Case: 20-1479 Document: 62 Page: 17 Filed: 08/06/2021
    8 BUFFINGTON v. MCDONOUGH
    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 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 6 (“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
    Case: 20-1479 Document: 62 Page: 18 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 9
    § 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 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 6. 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.
    Case: 20-1479 Document: 62 Page: 19 Filed: 08/06/2021
    10 BUFFINGTON v. MCDONOUGH
    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 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 7–8. 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
    Case: 20-1479 Document: 62 Page: 20 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 11
    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 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
    Case: 20-1479 Document: 62 Page: 21 Filed: 08/06/2021
    12 BUFFINGTON v. MCDONOUGH
    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 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 8. According to the majority, Congress chose to
    define the effective date of the discontinuation of benefits
    Case: 20-1479 Document: 62 Page: 22 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 13
    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 § 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
    Case: 20-1479 Document: 62 Page: 23 Filed: 08/06/2021
    14 BUFFINGTON v. MCDONOUGH
    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 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
    Case: 20-1479 Document: 62 Page: 24 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 15
    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. 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,
    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.
    Case: 20-1479 Document: 62 Page: 25 Filed: 08/06/2021
    16 BUFFINGTON v. MCDONOUGH
    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 reasonable gapfilling
    measure because it “incentivizes early filing” of recommencement
    of benefits, thereby promoting efficiency
    within the VA. Maj. Op. at 10. 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.
    Case: 20-1479 Document: 62 Page: 26 Filed: 08/06/2021
    BUFFINGTON v. MCDONOUGH 17
    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 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.
    Case: 20-1479 Document: 62 Page: 27 Filed: 08/06/2021

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