Howard E. Chandler v. Eric K. Shinseki

24 Vet. App. 23, 2010 U.S. Vet. App. LEXIS 1462, 2010 WL 3180255
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 12, 2010
Docket08-0932
StatusPublished
Cited by2 cases

This text of 24 Vet. App. 23 (Howard E. Chandler v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard E. Chandler v. Eric K. Shinseki, 24 Vet. App. 23, 2010 U.S. Vet. App. LEXIS 1462, 2010 WL 3180255 (Cal. 2010).

Opinions

LANCE, Judge:

U.S. Navy veteran Howard E. Chandler appeals through counsel from a March 7, [24]*242008, Board of Veterans’ Appeals (Board) decision that denied special monthly pension by reason of being in need of regular aid and attendance of another person, or on account of being housebound. This Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). See Frankel v. Derwinski, 1 Vet.App. 28, 25-26 (1990). For the following reasons, the Court will reverse the Board’s March 2008 decision.

I. BACKGROUND

A.The Present Claim

Mr. Chandler served on active duty in the U.S. Navy from 1952 to 1956, during the Korean conflict and, thus, he is a wartime veteran. He has a combined disability rating of 80%, including a 60% rating for prostate cancer. At age 57, VA granted Mr. Chandler a non-service-connected disability pension because his disabilities prevented him from maintaining employment and rendered him permanently and totally disabled. VA granted that pension pursuant to 38 U.S.C. § 1521(a).

At age 71, Mr. Chandler also filed a claim for a special monthly pension under section 1521(e). Mr. Chandler reasoned that 38 U.S.C. § 1513(a) eliminated the need to prove that he has a disability rated as permanent and total now that he is over the age of 65, and he meets the remaining requirements of § 1521(e). VA denied Mr. Chandler’s claim. The Secretary asserted that section 1513 was inapplicable to Mr. Chandler’s circumstances per VA’s interpretation of this Court’s precedent in Hartness v. Nicholson, 20 Vet.App. 216 (2006). On that basis, the Board denied Mr. Chandler’s appeal.

B.Issue on Appeal

The issue on appeal is whether Mr. Chandler, who is currently receiving a non-service connected disability pension, qualifies for an increased special monthly pension now that he is over the age of 65. This case involves the interplay of two statutes, 38 U.S.C. §§ 1513 and 1521, and the effect of this Court’s precedent in Hartness. As discussed above, prior to turning 65, the appellant qualified for a non-service-connected pension pursuant to section 1521(a) based upon disability. Under this Court’s decision in Hartness, now that the appellant is over 65, he would appear to qualify for a special monthly pension at a higher monthly rate. However, the Secretary argues that section 1513(b) should be read to preclude him from receiving the higher special monthly pension because, although he is permanently and totally disabled, he does not have a single disability that is rated permanent and total. In other words, the Secretary’s position is that veterans who are over 65, totally disabled, and have started receiving pension prior to turning 65 are to receive a lesser pension than those who are over 65 but not totally disabled when they begin receiving pension. The Court does not adopt this construction of the statute because it would lead to this absurd result, which clearly could not have been the intent of Congress. The dissent takes a position, not advocated by the Secretary, that we should overrule Hartness. For the reasons stated below, the Court concludes that principles of stare decisis counsel against overruling precedent that Congress has allowed to stand and the Secretary has relied on for some time.

C.Statutes

Section 1521 of title 38, U.S.Code, establishes a disability pension for wartime veterans who are totally and permanently disabled, even if the disabilities are not service connected, and regardless of age. This type of pension is generally referred to as a non-service-connected disability [25]*25pension, and the general provision is contained in 38 U.S.C. § 1521(a), which states:

The Secretary shall pay to each veteran of a period of war who meets the service requirements of this section [service for 90 days or more during a period of war] and who is permanently and totally disabled from non-service-connected disability not the result of the veteran’s willful misconduct, pension at the rate prescribed by this section.

(Emphasis added).

The statute then goes on to list in the subsections that follow the amounts that must be paid based on the circumstances of the claimant. The basic monthly payment rates for unmarried and married veterans are in subsection (b) and (c) respectively. The highest monthly pension rate is provided under subsection (d) to veterans “in need of regular aid and attendance.” Subsection (e) provides an intermediate pension rate for veterans that are “permanently housebound,” but not in need of regular aid and attendance. Specifically, this states:

If the veteran has a disability rated as permanent and total and (1) has additional disability or disabilities independently ratable at 60 per centum or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for pension at the aid and attendance rate provided by subsection (d) of this section, the annual rate of pension payable to the veteran under subsection (b) [unmarried and no children] of this section shall be $4,340.

“A disability rated as permanent and total” is defined as a single disability rated at 100%. See 38 C.F.R. § 3.351(d) (2010). A veteran who is “permanently and totally disabled” is defined as a veteran who is

(1)A patient in a nursing home for long-term care because of a disability.
(2) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner.
(3) Unemployable as a result of disability reasonably certain to continue throughout the life of the person.
(4) Suffering from—
(A) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or
(B) any disease or disorder determined by the Secretary to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled.

38 U.S.C. § 1502(a).

Section 1513

Free access — add to your briefcase to read the full text and ask questions with AI

Related

180929-12591
Board of Veterans' Appeals, 2019
Chandler v. SHINSEKI
676 F.3d 1045 (Federal Circuit, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
24 Vet. App. 23, 2010 U.S. Vet. App. LEXIS 1462, 2010 WL 3180255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-e-chandler-v-eric-k-shinseki-cavc-2010.