INFO SHEET FROM WESUPPORTTHEVETS

Two very important court decisions on veterans service connected medical claims

Moody v. Principi
Terry v. Principi
The Federal Circuit just handed down a couple of very important decisions.
In the Moody case the issue concerned whether there had to be medical
evidence showing that a veteran raised a claim. The Moody case centered
around the relationship between a service connected disability and a
non-service connected disability. The Secretary took the position that in
order for a veteran to be entitled to an earlier effective date there must
be a claim or informal claim specifically linking the service-connected
disability to the non-service connected disability. As you can see below the
Federal Circuit rejected this argument:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/Fed/037119.html

This case law is very important! Why? As it stands now by this ruling the VA
will be required to acknowledge an informal claim if there is any written or
oral evidence of a claim. There does not have to be medical evidence showing
such a claim. A mere statement by a veteran of record constitutes an
informal claim. VA will be required by law to adjudicate such a claim. Let
me give you an example. A veteran goes to a VAMC and gets treated for a
service-connected bilateral service connected knee condition. The veteran is
also seen at VAMC for a non-service connected back condition. The veteran
tells the doctor I firmly believe that my knees is causing my back problem
or aggravating my back. The VA doctor writes down in the record what the
veteran said. The veteran then later submits a claim in which the veteran
contends "I should be granted service connection for my back condition
because my bilateral service connected knee condition causes or aggravates
my back condition".

The date of the VAMC record is May 1997. Later the veteran provides the VA
with medical evidence showing a diagnosis of degenerative arthritis of the
back. The veteran also provides the VA with evidence stating it is as least
likely as not that the degenerative arthritis of the back is caused or
aggravated by the veteran's unstable knees. The BVA later grants service
connection for the back condition pursuant to 38 CFR 3.310(a)(disability
which is caused or aggravated by a service connection shall be service
connected). See also Allen v. Principi. The RO later grants 20 percent for
the back condition. But, the veteran disagrees with the effective date
because the VA assigned November 1998 as the effective date (date of
completed VA form 21-526). The veteran contends that the effective date
should be May 1997 because he raised such claim by virtue of the May 1997
VAMC treatment record in which he indicated to the VA doctor that he
believed his back was caused or aggravated by his service connected knee
condition. The May 1997 record was received prior to the completed VA Form
21-526 but within the one year time limit. The RO denies the claim
repeatedly. The claim now is before BVA and pending. As a result of the
Federal Circuit ruling this veteran would be entitled to an effective date
of May 1997. The Moody case in this scenario will greatly help in many
veteran's efforts to obtain an earlier effective date when an informal claim
is raised.
In the Terry case the Federal Circuit held that the Secretary and the
Veterans' Court misinterpreted the two year statutory time limit for accrued
benefits. This case is very important to those survivors who are trying to
collect all the past due benefits that were due and unpaid during the
veteran's lifetime.

United States Court of Appeals for the Federal Circuit
03-7107 CAROL L. TERRY, Claimant-Appellant, v. ANTHONY J. PRINCIPI,
Secretary of Veterans Affairs, Respondent-Appellee.

Kenneth M. Carpenter, Carpenter Chartered, of Topeka, Kansas, argued for
claimant-appellant.

Nancy M. Kim, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for
respondent-appellee. With her on the brief were Peter D. Keisler, Assistant
Attorney General; David M. Cohen, Director; and James M. Kinsella, Deputy
Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant
General Counsel; and Jamie L. Mueller, Attorney, United States Department of
Veterans Affairs, of Washington, DC. Of counsel were Domenique Kirchner,
Principal Attorney; and Kathleen A. Kohl, Attorney, United States Department
of Justice, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims
Judge John J. Farley, III
United States Court of Appeals for the Federal Circuit

03-7107 CAROL L. TERRY, Claimant-Appellant, v. ANTHONY J. PRINCIPI,
Secretary of Veterans Affairs, Respondent-Appellee.
DECIDED: May 10, 2004
Before RADER, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. Opinion concurring in
the result filed by Circuit Judge DYK.

PROST, Circuit Judge.

The appellant, Carol Terry, appeals the Court of Appeals for Veterans Claims
' interpretation of the two-year limitation found in 38 U.S.C. § 5121(a)
(2000). The Court of Appeals for Veterans Claims interpreted the statute as
limiting survivors of veterans to recovery only of those benefits that
accrued in the two years immediately preceding a veteran's death. Terry v.
Principi, No. 01-1510, slip. op. (Vet. App. Feb. 13, 2003). Because we hold
that the clear and unambiguous terms of § 5121(a) do not so limit a survivor
's potential recovery, we reverse the decision of the Court of Appeals for
Veterans Claims and remand this case for further proceedings consistent with
this opinion.

BACKGROUND

The facts of this case are not disputed. The appellant, Carol Terry, is the
spouse of deceased Army veteran Vander Terry ("Mr. Terry"). Mr. Terry served
in the Army between 1956 and 1978. In May of 1986, he was awarded a
total-disability rating based on individual unemployability ("TDIU") from
the Veterans Administration ("VA"). That rating was made retroactive to
April 14, 1986. At the time of the original TDIU determination, Mr. Terry
did not appeal the VA's determination of the effective retroactive date. In
June of 1995, he challenged the VA's May 1986 decision for the first time
and alleged clear-and-unmistakable error ("CUE") in determining the
effective date of April 14, 1986. Mr. Terry argued then that April 1985 was
the correct effective date. In July of 1995, the VA rejected Mr. Terry's
claims. Mr. Terry timely appealed to the Board of Veterans' Appeals. He
died, however, in August 1997, before the Board of Veterans' Appeals could
decide his appeal.
In September of 1997, Carol Terry filed an application with the VA for
recovery of Mr. Terry's unpaid accrued benefits, alleging that her husband's
CUE theory granted her an entitlement to the one year of unpaid benefits
dating back to 1985 that Mr. Terry claimed he was owed. In May of 1998, the
VA rejected Carol Terry's application. Three years later, in May of 2001,
the Board of Veterans' Appeals denied her appeal of that rejection, holding
that 38 U.S.C. § 5121(a) only permitted payment of benefits accrued in the
two-year period immediately prior to death. Finally, in February of 2003,
the Court of Appeals for Veterans Claims affirmed the Board of Veterans'
Appeals' decision.

The Court of Appeals for Veterans Claims relied entirely on its previous
opinions in arriving at its construction of 38 U.S.C. § 5121(a). Terry, slip
op. at 2. The court asserted that Marlow v. West, 12 Vet. App. 548, 551
(1999), conclusively settled the issue in this case by limiting a survivor's
recovery of accrued benefits to benefits accrued in the two-year period
immediately preceding the veteran's death. The court further supported its
holding with language from Bonny v. Principi, 16. Vet. App. 504, 506 (2002),
which held that "accrued benefits are not payable for any period before two
years immediately preceding a veteran's death." Terry, slip op. at 2.
Carol Terry has appealed the Court of Appeals for Veterans Claims' decision
on the grounds that its construction of 38 U.S.C. § 5121(a) was erroneous.

DISCUSSION

This court has jurisdiction over this appeal under 38 U.S.C. § 7292(c). The
review of the Court of Appeals for Veterans Claims' statutory interpretation
presents a question of law reviewed de novo and without deference. Santoro
v. Principi, 274 F.3d 1366, 1369 (Fed. Cir. 2001).

I.
Before this court, the appellant contends that the language of § 5121(a) is
unambiguous and does not limit a survivor's receipt of accrued benefits to
those benefits accrued in the two years prior to a veteran's death.
Furthermore, the appellant maintains that the legislative history supports
her interpretation.
The government responds by arguing that this court is bound by language in
Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir. 1998), and Richard v. West,
161 F.3d 719, 721 (Fed. Cir. 1998), stating that payments for benefits under
§ 5121(a) are limited to those benefits accrued in the two years immediately
prior to the veteran's death. In the alternative, the government contends
that § 5121(a) is ambiguous and that legislative history and a contextual
reading support the interpretation of the Court of Appeals for Veterans
Claims. Finally, the government argues, if the intent of Congress is not
clear from the language of the statute or the legislative history, this
court should, in performing a Chevron analysis, defer to the VA's
"reasonable interpretation" of § 5121(a).

II.
In resolving questions of statutory interpretation, our analysis begins with
the language of the statute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S.
438, 450, (2002); Mudge v. United States, 308 F.3d 1220, 1227 (Fed. Cir.
2002). Where the language of the statute is clear and unambiguous, our
analysis finds its end there as well. Hughes Aircraft Co. v. Jacobson, 525
U.S. 432, 438 (1999); Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997);
Int'l Bus. Machs. Corp. v. U.S., 201 F.3d 1367 (Fed. Cir. 2000).
The relevant language of 38 U.S.C. § 5121(a) states:
[P]eriodic monetary benefits . . . under laws administered by the Secretary
to which an individual was entitled at death under existing ratings or
decisions, or those based on evidence in the file at date of death
(hereinafter . . . referred to as "accrued benefits") and due and unpaid for
a period not to exceed two years, shall, upon the death of such individual
be paid as follows:

38 U.S.C. § 5121(a) (emphasis added).
In this case, the language of the statute is clear and unambiguous. By its
own terms, § 5121(a) limits the total accrued benefit payments that a
survivor may receive to those accrued benefits due and unpaid for up to a
two-year period. The statute does not, contrary to the government's
assertions, limit the payments recoverable to those that were accrued in the
two years immediately preceding the veteran's death.
By its structure, § 5121(a) separates "periodic monetary benefits" (i.e.,
those based on "existing ratings or decisions") from "accrued benefits"
(i.e., "those based on evidence in the file at the date of death"). The
comma between the two clauses discussing each form of benefit effects this
separation. See Bonny, 16 Vet. App. at 507. From the structure of the
statute, it is clear that both such benefits are to be paid "upon the death"
of the veteran. Therefore the limitation provided by the words "upon the
death" in the statute merely restricts the time frame in which the
government must pay "periodic monetary benefits" or "accrued benefits."
Thus, the phrase "upon death" does not create any ambiguity in the statute
because it is not tied to the two-year limitation on accrued benefits.
Furthermore, the phrasing of the accrued benefits clause aids this court in
determining the plain and unambiguous meaning of § 5121(a). Under the terms
of the statute, a survivor's recovery of a veteran's accrued benefits is
limited to those benefits accrued "for a period not to exceed two years," or
in other words, for a maximum two year period of accrued benefits regardless
of when those benefits were actually accrued. It is clear that § 5121(a)
does not, on its face, limit a survivor's recovery of accrued benefits to
those benefits accrued two years prior to a veteran's death.

III.
The government's additional arguments in opposition to this court's
construction of § 5121(a) are similarly unconvincing.
First, the government argues that previous decisions by this court are
controlling on this issue. That assertion is plainly incorrect. This court's
opinions in Haines and Richard do not compel this court finding for the
government on this issue. The three total sentences in Haines and Richard in
which this court discussed the two-year limitation of § 5121(a) are clearly
dicta. See Black's Law Dictionary (7th ed. 1999) (defining "gratis dictum"
and "judicial dictum"). In neither case was there any discussion of the
language of § 5121(a). And in neither case was the passing language
referring to § 5121(a) essential to the court's holding. See Richard, 161
F.3d at 722; Haines, 154 F.3d at 1300.
Second, the government asserts that the legislative history of the Veterans'
Benefits Act of 1957 supports the view that Congress intended to limit a
survivor's recovery to the accrued benefits earned in the two-year period
immediately preceding the death of the veteran. Given the statute's clear
and unambiguous language, this court need not resort to the legislative
history in determining the plain meaning of § 5121(a). Even examining the
legislative history, however, we find that it supports the appellant's
construction of the statute.
Prior to the passage of the Veterans' Benefits Act of 1957, the predecessor
statute to § 5121(a) read:
[Benefits] . . . to which a person was entitled prior to the date of his
death, and not paid during his lifetime, and due and unpaid for a period not
to exceed one year prior to death under existing ratings or decisions, or
those based on evidence in the file at the date of death, shall, upon the
death of such a person, be paid . . . .

Vet. Reg. No. 2(a), Part I, V(1) (codified at 38 U.S.C.A. ch. 12A (1954))
(emphasis added). The Veterans' Benefits Act of 1957 retained the one-year
limitation on the total sum of accrued benefits but removed the "prior to
death" language. This change indicates that Congress could have, if it had
chosen, retained exactly the type of limitation being advocated by the
government in this case. By keeping the one-year limitation and removing the
"prior to death" language, Congress, if anything, signaled its knowledge of
and intent to do away with the limitation of survivor benefit recovery to
the period immediately preceding death. In construing § 5121(a), this court
"will not assume that Congress intended to enact statutory language that it
has earlier discarded in favor of other language." Chickasaw Nation v.
United States, 534 U.S. 84, 93 (2001) (internal quotations and citations
omitted).
Third, the government argues that reading § 5121(a) in context supports its
interpretation of the statute. Again, if anything, the context of the
statute adds additional support to the appellant's contention in that the
language of § 5121(a) itself, Congress explicitly linked other terms to the
date of death and did not link such a limitation to the two-year limit for
accrued benefits (e.g., payable benefits are limited to those that the
veteran was entitled to "at death" and accrued benefits could only be
considered "based on evidence in the file at date of death"). 38 U.S.C. §
5121(a). As this court has previously noted, "[w]here Congress includes
particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
intentionally and purposefully in the disparate inclusion or exclusion."
Boyer v. West, 210 F.3d 1351, 1356 (Fed. Cir. 2000) (quoting Field v. Mans,
516 U.S. 59, 66 (1995)). This presumption is even stronger where particular
language is included in one part of the same section of a statute and not in
another part of that same section.
Finally, the government argues that if Congress's intent regarding the
two-year limitation § 5121(a) is not clear, the court should defer to the VA
's reasonable interpretation under the requirements of Chevron v. United
States, 467 U.S. 873 (1984). At oral argument, the government contended
that, in addition to § 5121(a)'s legislative history, the failure of
Congress to issue an explicit disclaimer that it did not intend to tie the
two-year benefit period to the death of the veteran rendered the statute
ambiguous. But if the statute is unambiguous on its face, no absence of a
disclaimer or examination of legislative history can make it ambiguous. And,
therefore, this court need not engage in a Chevron analysis. Out of
deference to the legislative branch, courts assume that "Congress says in a
statute what it means and means in a statute what it says there." Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)
(internal quotations and citations omitted).

CONCLUSION

We hold that the clear and unambiguous language of 38 U.S.C. § 5121(a) only
limits a survivor's recovery of accrued veteran's benefits to a maximum
two-year period of benefits accrued at any time during the veteran's life.
As the clear and unambiguous language of 38 U.S.C. § 5121(a) contradicts the
Court of Appeals for Veterans Claims' interpretation of that statute, the
Court of Appeals for Veterans Claims' decision denying the appellant
recovery of her spouse's accrued benefits is reversed and remanded for
further proceedings consistent with this opinion.
REVERSED and REMANDED

United States Court of Appeals for the Federal Circuit

03-7107

CAROL L. TERRY, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of
Veterans Affairs,

Respondent-Appellee.

DYK, Circuit Judge, concurring.

I agree with the result reached by the majority but not the route by which
it gets there. In my view, the language of the statute is ambiguous as to
which two-year period is being referenced. It can be read as referring to
either (1) any two-year period, as the majority holds, or (2) the two-year
period immediately prior to death. The existence of ambiguity inherent in
the language of the statute is evidenced by the fact that two of our earlier
decisions in dictum read the language as meaning the two years immediately
prior to death. See Richard v. West, 161 F.3d 719, 722 (Fed. Cir. 1998);
Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir. 1998).
Nonetheless, as the majority notes, the statutory language was changed in
1957 to delete a reference to "prior to death." Ante at 7. We assume that
such changes have substantive significance. See Chickasaw Nation v. United
States, 534 U.S. 84, 93 (2001). In light of this history, I agree with the
majority's construction - that the two years referred to in the statute
means any two-year period.
 

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