Buffington v. McDonough

7 F.4th 1361

• Court: Court of Appeals for the Federal Circuit
• Decided: August 6, 2021
• Docket: 20-1479
• Status: Published

Opinion

Case: 20-1479 Document: 62 Page: 1 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. Mere- dith, Judge Joseph L. Falvey Jr., Judge William S. Green- berg. ______________________

Decided: August 6, 2021 ______________________

DORIS JOHNSON HINES, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, ar- gued for claimant-appellant. Also represented by ANDREA GRACE KLOCK MILLS; BARTON F. STICHMAN, National Vet- erans Legal Services Program, Washington, DC.

SHARI A. ROSE, Commercial Litigation Branch, Civil Di- vision, 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: 2 Filed: 08/06/2021

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 Al- liance. 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. Buff- ington v. Wilkie, 31 Vet. App. 293 (2019) (Veterans Court Op.). Under 38 C.F.R. § 3.654(b)(2), the Veterans Court de- nied Mr. Buffington an earlier effective date for recom- mencement 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 unreasona- ble 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. Af- ter leaving active duty service, Mr. Buffington sought dis- ability 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 posi- tion of Chief Judge on May 22, 2021. Case: 20-1479 Document: 62 Page: 3 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 in- formed 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 recommence- ment. 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, chal- lenging the VA’s effective-date determination. The VA Re- gional 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 deci- sion. 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 in- consistent 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 dur- ing 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 Disa- bility or Death”). And it refers to benefits paid as a result Case: 20-1479 Document: 62 Page: 4 Filed: 08/06/2021

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 ad- ministered 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 ser- vice-connected disability, the VA must assign him a disa- bility 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 dic- tates 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-con- nected disability benefits once a veteran leaves active ser- vice. 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 ben- efits. But that framing assumes the interpretive conclu- sion. Case: 20-1479 Document: 62 Page: 5 Filed: 08/06/2021

BUFFINGTON v. MCDONOUGH 5

interpretive question, promulgating 38 C.F.R. § 3.654(b)(2) through notice-and-comment rulemaking. In such circum- stances, 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 Con- gress 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 unam- biguously 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 stat- ute.” 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 Cana- dian 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 com- pensation when a veteran receives active service pay: Pension, compensation, or retirement pay on ac- count 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) ar- gues 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 per- suasive given the facts and arguments presented here. Case: 20-1479 Document: 62 Page: 6 Filed: 08/06/2021

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 be- fore the date such pay began. 38 U.S.C. § 5112(b)(3). But Congress did not establish when or under what conditions compensation recom- mences once a disabled veteran leaves active service. No- where 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 ser- vice compensation ends. But § 5304(c) does not say com- pensation 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 nei- ther required nor prohibited consideration of such condi- tions. 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, Case: 20-1479 Document: 62 Page: 7 Filed: 08/06/2021

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 ac- tive military service and restarting at discharge from ac- tive 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 (em- phasis 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. Ques- tioned about Mr. Buffington’s admissions in his briefing, Mr. Buffington’s counsel conceded that “the government can certainly require reapplication[,] . . . can require a vet- eran 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 under- standing that § 5304(c) does not create a limited exception to a general entitlement to benefits. Instead, when a disa- bled veteran returns to active service, his disability bene- fits are discontinued. See 38 U.S.C. § 5112 (setting

3 Mr. Buffington cites 38 U.S.C. § 1110 for his gen- eral entitlement to compensation, which relates to wartime disabilities. But because Mr. Buffington did not serve dur- ing a period of war, id. § 1101(2), a different provision con- trols. 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: 8 Filed: 08/06/2021

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 imper- missible surplusage, which is not present under the gov- ernment’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 surplus- age). Under Mr. Buffington’s interpretation the word pe- riod 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 stat- ute 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 bene- fits 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 construc- tion 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-vet- eran canon. See Terry v. Principi, 340 F.3d 1378, 1383 (Fed. Cir. 2003). Case: 20-1479 Document: 62 Page: 9 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 re- ceived 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 adminis- tered by the Department and are consistent with those laws.” 38 U.S.C. § 501(a). That authority gives the Secre- tary 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” pro- vided the Department of Labor “with the power to fill [ex- plicit 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 recom- mencement 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 Case: 20-1479 Document: 62 Page: 10 Filed: 08/06/2021

is entitled to compensation effective one year before his fil- ing date. By incentivizing early filing, § 3.654(b)(2) pro- motes 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 im- prove 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: 11 Filed: 08/06/2021

United States Court of Appeals for the Federal Circuit ______________________

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 17-4382, Judge Amanda L. Mere- dith, Judge Joseph L. Falvey Jr., Judge William S. Green- berg. ______________________

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 ac- tive duty pay—his disability payments ceased. And it is Case: 20-1479 Document: 62 Page: 12 Filed: 08/06/2021

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, 2008. The majority endorses the Department of Veterans Affairs’ treatment of Mr. Buffington. I do not. I, thus, re- spectfully 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 deter- mine 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 bene- fits 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 reappli- cation 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 pay- ments would recommence—the right to fill the congression- ally created “gap.” The majority puts the cart before the horse in its Chev- ron analysis. Rather than apply traditional tools of statu- tory construction to determine whether there is an Case: 20-1479 Document: 62 Page: 13 Filed: 08/06/2021

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, how- ever, 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 spo- ken to the precise question at issue. If the intent of Con- gress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambigu- ously expressed intent of Congress.”). It is only after find- ing 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 in- dication that Congress did delegate that gap-filling author- ity.”) (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 statu- tory silence in the process. But, a plain reading of the relevant portions of the gov- erning 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, stat- utory 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 some- times statutory silence, when viewed in context, is best in- terpreted 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 Case: 20-1479 Document: 62 Page: 14 Filed: 08/06/2021

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 service- connected disabilities. 1 Section 5110 contains numerous provisions regarding precisely when such disability pay- ments 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 ap- plication 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 effec- tive date based on variant of one-year look back period for disability benefits after veterans are discharged from ac- tive 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 submit- ted 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: 15 Filed: 08/06/2021

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 ac- tive 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 dis- continue for “any period for which such person receives ac- tive 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 contrapos- itive 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 ben- efits will “recommence” is of no moment. The plain text of Title 38 indicates that Congress intended for veterans’ ben- efits 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 vet- eran loses his original effective start date for disability ben- efits 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 dis- ability 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: 16 Filed: 08/06/2021

active service, the veteran can once again seek disability benefits . . . .”). Indeed, because § 5112(b)(3), like § 5304(c), also applies to all disability compensation, depend- ency 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 ac- tive 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 re- tirement compensation during at least some post-active duty period, despite previously having been deemed quali- fied 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 pay- ments 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 prob- lem giving the “any period” language in § 5304(c) its plain and ordinary meaning. The broader context in which these provisions were en- acted confirms the conclusion that disability payments should recommence effective the day after active duty pay ceases. According to the Supreme Court, Congress’s solici- tude 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 deci- sions.” 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 bene- ficial 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: 17 Filed: 08/06/2021

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 Moderniza- tion Act of 2017, Pub. L. No. 115–55, 131 Stat. 1105 (codi- fied 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 reo- pened after final adjudication, or a claim for increase of [benefits].” 38 U.S.C. § 5110(a) (2012). The practical real- ity 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 vet- eran’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 Im- provement 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 reo- pened their claims or filed for increases in benefits, Con- gress 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: 18 Filed: 08/06/2021

the initial application for a benefit if the claim is continu- ously pursued.” 38 U.S.C. § 5110(a)(2) (emphasis added). Within this same subsection, Congress delineated various ways in which veterans could “continuously pur- sue[]” 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 orig- inal effective start dates upon return to active duty. Ra- ther, 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 ac- tive service pay.”). This is correct. Where the majority errs, however, is in its assertion that “§ 5304(c) does not say compensation must cease only for that period. Con- gress was silent regarding whether other conditions, such as timely refiling of an application, could justify a later ef- fective date.” Id. (emphasis in original). In legislating Case: 20-1479 Document: 62 Page: 19 Filed: 08/06/2021

§ 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 bene- fits. 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 ben- efits 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 re- cite 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 In- terpretation of Legal Texts 93 (2012)). Where Congress cre- ates 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 dis- ability pay during “any period” of active service pay, the natural consequence of the majority’s interpretation con- travenes 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 en- compass the period of active service pay plus the period in which the veteran has yet to reapply for benefits upon re- turning from active duty. As discussed above, “a matter not covered is to be treated as not covered.” And, excep- tions 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: 20 Filed: 08/06/2021

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 circum- stances: (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 “§ 5304(c) does not create a limited exception to a general entitlement to benefits.” Id. The majority’s reliance on these supposed “conces- sions” 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, noth- ing 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 re- quired to notify the VA that his active duty pay recom- menced. While there is no statutory provision granting the VA the right to conduct additional medical exams or to recon- sider benefits awards, that authority arises from the VA’s obligation to set the percentage of disability in the first in- stance. 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: 21 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 re- quired if it is likely that a disability has improved, or if ev- idence 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 reas- sess a veteran’s disability for ratings purposes. We are con- cerned 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” re- quirement is similarly misplaced. Neither Title 38 nor the corresponding VA regulations speak to reapplying for vet- erans’ 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 origi- nal 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 supple- mental 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: 22 Filed: 08/06/2021

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 con- sistent 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 compen- sation 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 no- tice of his change in status; once it received notice, it had no problem backdating the cessation of benefits. Mr. Buff- ington argues that the VA similarly should have no prob- lem 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 re- garding reexamination, reconsideration, and reapplication is simply unpersuasive. To the extent the VA implements these concepts, they do nothing to rebut the notion that vet- erans’ 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 pe- riod” language of § 5304(c) to “set both the date for discon- tinuing 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: 23 Filed: 08/06/2021

BUFFINGTON v. MCDONOUGH 13

in § 5112(b) but not to specify the effective date of recom- mencement of disability benefits following a veteran’s pe- riod 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-af- ter” recommencement date. Since Congress already pro- vided 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” effec- tive 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” lan- guage 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 ig- nore the pro-veteran canon of construction in its Chevron step one analysis. But that logic does not withstand dis- section. What the majority appears to really say is that, by not expressly setting a date for recommencement of Case: 20-1479 Document: 62 Page: 24 Filed: 08/06/2021

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, how- ever, or what the implications of that conclusion are. As described above, the majority failed to correctly ap- ply 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 construc- tion along the way, including the pro-veteran canon of con- struction. 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 interpreta- tion.”). 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 inter- pretive 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 unambigu- ously authorized the VA to require veterans to go through the onerous disability application process anew merely be- cause 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: 25 Filed: 08/06/2021

BUFFINGTON v. MCDONOUGH 15

there is any silence, it is our job to interpret what that si- lence 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 Con- gress 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 re- mains 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 con- struction 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 construc- tion.”); 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 Can- ons in the Review of Administrative Policymaking, 118 Yale L.J. 64, 77 (2008) (“[C]anons trump deference.”). 3 The ma- jority 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 con- sideration 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: 26 Filed: 08/06/2021

there is nothing ambiguous about the “any period” lan- guage in § 5304(c). II. After finding a gap in § 5304(c)’s statutory text, the ma- jority moves on to Chevron step two. The majority con- cludes that 38 C.F.R. § 3.654(b)(2) is a reasonable gap- filling measure because it “incentivizes early filing” of re- commencement 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 reason- able 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 vet- eran’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 rat- ings are thus already baked into the statutory and regula- tory 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: 27 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 re- tirement benefits) to veterans entitled to them solely be- cause these men and women answered the call to return to active duty. That is wholly inconsistent with the benefi- cent scheme in which the relevant statutory provisions ap- pear and with the congressional intent behind both the VJRA and the AMA. I dissent from the majority’s endorse- ment of this offensive regulation.