Lewis v. Brown

8 Vet. App. 287, 1995 U.S. Vet. App. LEXIS 798, 1995 WL 638631
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 1, 1995
DocketNo. 94-469
StatusPublished
Cited by5 cases

This text of 8 Vet. App. 287 (Lewis v. Brown) 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
Lewis v. Brown, 8 Vet. App. 287, 1995 U.S. Vet. App. LEXIS 798, 1995 WL 638631 (Cal. 1995).

Opinion

FARLEY, Judge:

This is an appeal from a February 23, 1994, decision of the Board of Veterans’ Appeals (BVA) which denied the appellant’s claim for an effective date earlier than September 1, 1992, for “improved” pension benefits. The appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will grant the Secretary’s motion for summary affirmance and affirm the decision of the BVA.

[288]*288I.

The appellant served in the Army from September 1950 until February 1951. Record (R.) at 14. He obtained a rating of individual unemployability due to non-service-connected disabilities in September 1971, and was awarded non-service-connected pension benefits with an effective date of April 1971. R. at 6, 17-18.

In January 1979, title 38 of the U.S.Code was amended to “provide improvements in the pension program for certain veterans of a period of war with non-service-connected disabilities, [and] for certain surviving spouses of veterans of a period of war....” Veterans’ and Survivors’ Pension Improvement Act of 1978, Pub.L. No. 95-588, 92 Stat. 2497 (1978). The regional office (RO) furnished the appellant with an election card, which he completed and returned. Supplemental Record (Suppl.R.) at 1. Just to the left of the appellant’s signature, the election card stated: “I understand [that] this election ... will not be accepted unless such election is now to my advantage.” Ibid. However, in September 1979, the RO advised the appellant that he would receive only $23.00 under the “improved pension program” instead of the $33.72 pension which he was receiving under the old program. R. at 20. The RO stated, “[W]e have not accepted your election and we will not take any further action on it unless you tell us to do so in writing.... You can make a new election at any time in the future and we will determine whether it is to your advantage.” Ibid.

The appellant submitted another election form for the improved pension program in July 1980. Suppl.R. at 2. The form contained the same qualification as had the 1979 election card as to the election not being accepted unless advantageous to the beneficiary. Ibid. The RO responded that it still was not to the appellant’s benefit to transfer to the improved pension program and advised him exactly as it had in September 1979. Suppl.R. at 3.

In August 1992, the appellant again elected to receive benefits under the improved pension program. R. at 24. The RO approved his election and granted him an effective date of October 1, 1992 (R. at 31), which was subsequently changed to September 1, 1992 (R. at 38). The appellant filed a Notice of Disagreement in April 1993, stating that he was entitled to “back benefits.” R. at 34. On his VA Form 1-9, the appellant wrote,

I am asking for retroactive Improved Pension .... Whenever I would contact the [RO] in Baltimore, Md.[,] they would say I have the best selection. They did that for years. It wasn’t until August 4,1992 when I [was] hospitalized ... [that] a V.A. Counselor told me[] I [was] entitled to Improved Pension long ago. I am also asking for interest on all money witheld [sic] from me.

R. at 52. On August 12, 1993, the appellant testified at a BVA hearing that the last time he had called the RO and asked whether he should change to the improved pension program was approximately two years before. R. at 61. He also testified that he thought he should have been automatically transferred to the improved pension program as soon as he was eligible for a higher award under it. R. at 61-62.

In February 1994, the BVA denied the appellant’s claim, holding that an earlier effective date for an improved pension was not warranted because “[u]nder 38 C.F.R. § 3.713 (1993), an election to receive improved pension shall be effective the date of receipt of the election.” Fitcher L. Lewis, BVA 94-02164, at 4 (Feb. 23, 1994); R. at 7. The BVA also stated, “VA does not have a duty to automatically provide someone such as the veteran with personal notice of eligibility for benefits_” Ibid. This appeal followed.

II.

The appellant argues that he is entitled to an earlier effective date because VA had a continuing duty to review the amounts available to him under both the old and the new pension programs and to “automatically” deem his improved pension election effective on the date his benefits under the improved pension program exceeded those under the old program. Therefore, the Court will examine all “relevant statutory [and other] provisions from which a duty to notify might [289]*289have arisen.” Gold v. Brown, 7 Vet.App. 315, 317 (1995).

A Public Law No. 95-588

Public Law No. 95-588 created a new pension program for non-service-connected veterans, “certain surviving spouses,” and “certain surviving children.” (For ease of reference, the term “pensioners” will be used to refer to all beneficiaries.) Although most eligible pensioners received more money under the improved pension program, that was not the ease for all, including the appellant. Presumably to provide for this situation, the statute provided that pensioners who did not elect to receive benefits under the new program “shall continue to receive pension at the monthly rate being paid to such person[s] on December 31, 1978.” Pub.L. No. 95-588 § 306(a)(2), 92 Stat. at 2508; see 38 U.S.C. § 1521 note (Savings Provision for Persons Entitled to Pension as of December 31, 1978; Other Provisions) (“§ 306”). The pensions received by those who did not elect to receive improved pension benefits are called “Section 306 pensions.” H.R.Conf.Rep. No. 1768, 95th Cong., 2d Sess. 30 (1978), reprinted in 1978 U.S.S.C.A.N. 5702, 5717. The proper amount of benefits for a particular pensioner under each pension program may change from year to year because the basis of calculation is different. Compare 38 U.S.C. § 521(b) (1977) (although § 521(b) is no longer in effect, § 306(a)(2) provides that a pensioner who did not elect to receive an improved pension “shall continue to receive pension at the monthly rate being paid to such person on December 31,1978, subject to all provisions of law applicable to basic eligibility for and payment of pension under section 521 ... of title 38, United States Code, as in effect on December 31, 1978 ... ”) with 38 U.S.C. § 1521(b) — (i) (subsections listing factors which determine amount of benefits under improved pension program). Therefore, although it might have been disadvantageous to a pensioner to elect improved pension benefits in 1979, such an election may have become advantageous sometime after that. This was true for the appellant, although the record does not reflect when his improved pension benefits would have exceeded the section 306 pension benefits.

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Bluebook (online)
8 Vet. App. 287, 1995 U.S. Vet. App. LEXIS 798, 1995 WL 638631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-brown-cavc-1995.