James E. Sursely v. James B. Peake , 2007 U.S. Vet. App. LEXIS 1946 ( 2007 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 05-2194
JAMES E. SURSELY , APPELLANT ,
V.
JAMES B. PEAKE , M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 26, 2007 Decided December 21, 2007 )
Landon E. Overby, of Washington, D.C., for the appellant.
Kenneth A. Walsh, with whom Tim S. McClain, Esq., General Counsel; R. Randall Campbell,
Esq., Assistant General Counsel; and Edward V. Cassidy, Jr., Esq., Deputy Assistant General
Counsel, were on the brief, all of Washington, D.C., for the appellee.
Before GREENE, Chief Judge, and LANCE and SCHOELEN, Judges.
SCHOELEN, Judge: The appellant, James E. Sursely, through counsel, appeals a May 27,
2005, Board of Veterans' Appeals (Board or BVA) decision in which the Board denied his claim for
entitlement to more than one clothing allowance under 38 U.S.C. § 1162. Record (R.) at 1-5. This
appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Because the statutory language in section 1162 clearly provides only one
clothing allowance per eligible veteran, the Board's decision is affirmed.
I. BACKGROUND
The appellant served in the U.S. Army from December 1966 to November 1969, and was
discharged under honorable circumstances. R. at 8. He was injured by a land mine explosion in
November 1969, and had his left arm amputated above the elbow, his right leg amputated above the
knee, and his left hip disarticulated.1 He was awarded a 100% disability rating effective from the
date of discharge. R. at 18. He wears an "artificial arm" and uses a wheelchair. R. at 3. He
currently receives a VA clothing allowance. R. at 2.
In March 2003, the appellant filed a claim stating that he "is entitled to an annual clothing
allowance for the artificial arm, which is a prosthetic appliance that tends to wear and/or tear shirts,"
and that he "qualifies for a separate clothing allowance based upon loss of both legs that requires
the use of a wheelchair that tends to wear and/or tear pants." R. at 26. He sought "retroactive
payment of [the] annual clothing allowance from [the] date of initial authorization [on] October 13,
1972 to present." Id. Upon request by the St. Petersburg, Florida, VA regional office (RO), in July
2003, the Director of Compensation and Pension (Director) rendered an opinion that the plain
language in 38 U.S.C. § 1162 and 38 C.F.R. § 3.810 (2003) did not allow for the payment of more
than one clothing allowance per veteran, per year. R. at 39. On this basis, the RO denied the
appellant's claim for multiple clothing allowances. R. at 45-46.
On appeal the Board denied the claim. The Board noted the Director's opinion that the plain
language of 38 U.S.C. § 1162 provides for only one clothing allowance, and that the language of
38 C.F.R. § 3.810 authorizes only one clothing allowance because it is phrased in terms of "The . . .
annual clothing allowance . . . ." R. at 3 (emphasis added in Board decision). The Board expressed
its sympathy for the appellant's situation, but concluded that "the plain language of the statute and
implementing regulation is that a single annual clothing allowance is payable." R. at 4.
The issue before the Court is the interpretation of 38 U.S.C. § 1162, which states:
The Secretary under regulations which the Secretary shall prescribe, shall pay a
clothing allowance of $662 per year to each veteran who--
(1) because of a service-connected disability, wears or uses a
prosthetic or orthopedic appliance (including a wheelchair) which the
Secretary determines tends to wear out or tear the clothing of the
veteran; or
(2) uses medication which (A) a physician has prescribed for a skin
condition which is due to a service-connected disability, and (B) the
Secretary determines causes irreparable damage to the veteran's
outergarments.
1
"Disarticulation" is defined as "amputation or separation at a joint." D O R LA N D 'S I LLU STR ATED M ED IC AL
D IC TIO N AR Y 509 (29th ed. 2000).
2
The appellant contends that section 1162 is clear on its face, and the key term in the statute
is the authorization of payment of a clothing allowance when a prosthetic or orthopedic appliance
related to a service-connected disability wears or tears the veteran's clothing. Appellant's Brief (Br.)
at 14. He reaches this conclusion by stating that the meaning of "a," prefacing "service-connected
disability," is analogous to the word "each," citing a dictionary definition of "a." He argues: "When
harmonized with the whole of [section] 1162, the plain meaning of the phrase 'a clothing allowance'
read in conjunction with 'because of a service-connected disability' is that a veteran is entitled to a
clothing allowance because of each service-connected disability that tends to wear out or tear
clothing." Id. at 15. Alternatively, he argues that, if the statute is ambiguous, it should be construed
in the veteran's favor: "In the absence of express Congressional intent to prohibit more than one
clothing allowance because of separate service-connected disabilities affecting a veteran's upper and
lower extremities, [section] 1162 must be construed in Mr. Sursely's favor." Id. at 18-19 (citing
Brown v. Gardner, 513 U.S. 115 (1994); McNight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Smith v. Nicholson, 19 Vet.App. 63 (2005)).
The Secretary responds that the plain language of the statute "provides for a single annual
clothing allowance for each eligible veteran." Secretary's Br. at 7. He asserts that even "[a] veteran
who wears or uses multiple prosthetic or orthopedic appliances due to multiple service-connected
disabilities would still fit the statutory description of a veteran who 'because of a service-connected
disability, wears or uses a prosthetic or orthopedic appliance.'" Id. The Secretary contends that the
plain language of the statute would not allow multiple clothing allowances even if a veteran satisfied
both subsections of the statute (i.e., used an orthopedic appliance that wears our or tears clothing and
suffered from a skin condition that causes irreparable damage to outergarments). Id. at 8. The
Secretary notes that, if the Court agrees with the appellant's interpretation of the statute, and makes
"service-connected disability" the key criterion for a clothing allowance award, VA would be
required to pay multiple clothing allowances to a veteran whose multiple service-connected
disabilities all related to the same orthopedic appliance (and thus the wearing out or tearing of the
same garment type). Id. at 9. The Secretary, addressing the appellant's contention that the word "a"
in the statute should be read to mean "each," maintains that if the statute were read in that fashion,
the Secretary would still not be authorized to pay more than one allowance per veteran, and that
reading would actually have the effect of requiring payment of the allowance "only if each one of
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the veteran's disabilities affected his clothing." Id. at 11. Addressing the legislative history of
section 1162, the Secretary asserts that the statute makes clear that only one clothing allowance was
intended. Id. at 12-13. Finally, the Secretary contends that, if the statute is ambiguous, VA's
implementing regulation (38 C.F.R. § 3.810 (2007))2 is a reasonable interpretation of the statute and
thus is entitled to deference. Id. at 14-17.
The Court's inquiry into the proper interpretation of section 1162 is a question of law. The
Court reviews the Board's interpretation of the law de novo. See Butts v. Brown, 5 Vet.App. 532,
539 (1993) (en banc); see also Hensley v. West, 212 F.3d 1255, 1262-64 (Fed. Cir. 2000) (discussing
proper application of de novo review).
II. ANALYSIS
A. Statutory Language
When interpreting a statute, the Court must first determine whether Congress, in the statutory
language, has spoken to the precise question at issue. If Congress has spoken directly, that is the
end of the matter, and the Court and agency are required to "give effect to the unambiguously
expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984). However, if Congress has not directly addressed the precise question at issue,
the Court must determine whether the agency's answer to the question, through regulation, is a
2
The regulation provides, in pertinent part:
(a) Except as provided in paragraph (d) of this section a veteran who has a service-connected
disability, or a disability compensable under 38 U.S.C. [§] 1151 as if it were service-connected, is
entitled, upon application therefor, to an annual clothing allowance as specified in 38 U.S.C. [§] 1162.
The annual clothing allowance is payable in a lump sum, and the following eligibility criteria must
also be satisfied:
(1) A VA examination or hospital or examination report from a facility specified in § 3.326(c)
discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear
or tear clothing (including a wheelchair) because of such disability and such disability is the loss or
loss of use of a hand or foot compensable at a rate specified in § 3.350(a), (b), (c), (d), of (f); or
(2) The Chief Medical Director or designee certifies that because of such disability a
prosthetic or orthopedic appliance is worn or used which tends to ware [sic] or tear the veteran's
clothing, or that because of the use of a physician-prescribed medication for a skin condition which
is due to the service-connected disability irreparable damage is done to the veteran's outergarments.
For the purposes of this paragraph "appliance" includes a wheelchair.
38 C.F.R. § 3.810(a).
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permissible construction of the statute. Id. at 843. To determine Congress's intent, the traditional
tools of statutory construction are employed. See id. at 843 n.9. In evaluating whether Congress
has directly spoken to the question at issue, the starting point is to examine the language and
structure of the statute itself. Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (quoting
Chevron, 467 U.S. at 842); see Trilles v. West, 13 Vet.App. 314, 321 (2000) (en banc); Gardner v.
Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir.
1993), aff'd, 513 U.S. 115 (1994). "[E]ach part or section [of a statute] should be construed in
connection with every other part or section so as to produce a harmonious whole." Meeks v. West,
12 Vet.App. 353, 354 (1999) (quoting 2A N. SINGER, SUTHERLAND ON STATUTORY
CONSTRUCTION § 46.05 (5th ed. 1992)); see also Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993).
The question at issue is whether a claimant may receive more than one annual clothing
allowance under section 1162. The Court, evaluating the text and structure of the statute, and
applying these principles of statutory construction, concludes that Congress intended to allow each
eligible veteran only one clothing allowance.
Initially, as noted above, the appellant's primary contention is that this Court should adopt
his definition of "a" to mean "each" and find that the statute unambiguously provides for "a clothing
allowance because of each service-connected disability that tends to wear out or tear clothing."
Appellant's Br. at 15. Other than citing Merriam-Webster's Collegiate Dictionary 1 (11th ed. 2004),
the appellant fails to provide any persuasive support for such a reading. Additionally, when given
the opportunity at oral argument, the appellant was unable to provide any further support for his
proposition. It is notable that the appellant argues that the statute unambiguously provides for his
interpretation, but in order to reach that result the word "a" must be replaced with "each." See
Jones v. Brown, 41 F.3d 634, 638 (Fed. Cir. 1994) ("In determining the plain meaning of statutory
language, 'legislative purpose is expressed by the ordinary meaning of the words used.'" (quoting
Ardestani v. INS, 502 U.S. 129, 134 (1991))). "The 'strong presumption' that the plain language of
the statute expresses congressional intent is rebutted only in 'rare and exceptional circumstances,'
when a contrary legislative intent is clearly expressed." Ardestani, 502 U.S. at 135-36 (internal
citations omitted) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987); Consumer
Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).
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The plain language of section 1162 authorizes "a clothing allowance" in a fixed dollar
amount to "each veteran" whose service-connected disability either requires the veteran to use an
appliance that wears or tears clothing or whose treatment for a service-connected skin condition
causes irreparable damage to the veteran's outergarments. Accordingly, under subsection (1), once
a claimant has established "use" of an appliance that tends to wear out or tear the appellant's clothing
and has shown that a service-connected condition necessitated the use of the appliance, the claimant
has demonstrated entitlement to a clothing allowance. Similarly, under subsection (2), a veteran
who "uses medication which (A) a physician has prescribed for a skin condition which is due to a
service-connected disability, and (B) the Secretary determines causes irreparable damage to the
veteran's outergarments" (38 U.S.C. § 1162(2)) is entitled to a clothing allowance. The statute links
these two different methods of establishing entitlement to a clothing allowance by the word "or."
The word "or" as used in the statute is a disjunctive conjunctive, indicating that the sentences are
to be looked at separately, i.e., expressing an alternative between the groups of words it joins. See
Reiter v. Sonotone Corp, 442 U.S. 330 (1979). Thus, fulfilling the requirements of both subsections
would not lead to any greater clothing allowance than fulfilling the requirements of one subsection
because the statute authorizes the Secretary to pay "a clothing allowance to each veteran" who
satisfies the criteria of either subsection.
The Court also observes that, notwithstanding the fact that medication for a skin condition
could affect outergarments worn on different parts of the body, thus damaging different types of
clothing, or that a veteran might have multiple service-connected disabilities that require the use of
medication, section 1162(2), as written, does not provide for more than one clothing allowance. See
Meeks, supra. The Court finds this persuasive support for the conclusion that subsection (1) was
also intended to provide for only one clothing allowance, regardless of the fact that a veteran might
be able to satisfy it through several independent service-connected conditions. Arguably, Congress
was aware that a multiple amputee's prosthetic devices could potentially wear out different types of
clothing, however, Congress chose to provide only for "a clothing allowance," not taking into
account what type of clothing might be damaged by various disabilities. Finally, the Court
recognizes that if the appellant's rationale were adopted, it appears that multiple clothing allowances
also would be awarded to veterans whose multiple service-connected disabilities all related to the
same orthopedic appliance, only resulting in wearing out or tearing of only one type of garment.
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This is irrational and clearly not the result that Congress intended in enacting section 1162. Based
on the foregoing, the Court is convinced that section 1162 is clear on its face and provides for only
one clothing allowance per eligible veteran.
As noted above, there is a strong presumption that, unless rebutted by a clearly expressed
legislative intent, the plain language of a statutory provision expresses congressional intent. The
appellant did not address the legislative history of section 1162, but the Secretary has done so.
Although it is unclear why the Secretary did not address legislative history in his brief, at oral
argument he presented legislative history illustrating the congressional intent to provide for only one
clothing allowance per eligible veteran. As part of the enactment of section 1162, Congress
estimated the first-year cost for implementation to be $6.6 million. S. REP. NO . 92-845, at 10 (1972).
Before estimating that sum, Congress sought from VA an estimate of how many veterans would be
eligible for the clothing allowance. According to the Senate report addressing the enactment of
section 1162, the Senate Committee quoted VA's estimate that 44,000 veterans would be eligible
for the clothing allowance. Id. Upon this basis, Congress made the following calculation: $150
multiplied by 44,000 eligible veterans (receiving only one clothing allowance each) equals the $6.6
million estimated for the first year of the clothing allowance. Thus, the history of the initial
calculation of the estimated cost of the clothing allowance provision further supports the conclusion
that Congress intended each eligible veteran to receive only one clothing allowance.
B. Regulatory Language
The appellant also asserts that, if the statute were ambiguous, the Board committed legal
error in construing the statute and implementing regulation against him in violation of Brown v.
Gardner. Brown holds that, in interpreting ambiguities in veterans benefits statutes, "interpretive
doubt is to be resolved in the veteran's favor." 513 U.S. at 118. The Federal Circuit has discussed
the relationship between Brown and the second part of the Chevron analysis, cautioning that "a
veteran 'cannot rely upon the generous spirit that suffuses the law generally to override the clear
meaning of a particular provision,'" Disabled American Veterans v. Gober, 234 F.3d 682, 692 (Fed.
Cir. 2000) (quoting Boyer v. West, 210 F.3d 1351, 1355 (Fed. Cir. 2000) and Smith v. Brown,
35 F.3d 1516, 1526 (Fed. Cir. 1994)); that "where the meaning of a statutory provision is ambiguous,
[the Court] must take care not to invalidate otherwise reasonable agency regulations simply because
they do not provide for a pro-claimant outcome in every imaginable case," Sears v. Principi,
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349 F.3d 1326, 1331-32 (Fed. Cir. 2003); and that "[w]here . . . a statute is ambiguous and the
administering agency has issued a reasonable gap-filling or ambiguity-resolving regulation, [the
Court] must uphold that regulation," id. at 1332.
The appellant argues that, because 38 C.F.R. § 3.810 "employs language almost identical to
that contained in the statute," "there is nothing that distinguishes the regulation from the statute."
Appellant's Br. at 17. This argument assumes that the statute is ambiguous, and that a regulation that
"merely parrots the language of the statute . . . cannot be said to have filled a 'gap' or resolved any
ambiguity." Appellant's Reply Br. at 7 (citing Gonzales v. Oregon, 546 U.S. 243, 257 (2006)). The
Court agrees that the regulation and the statute are indistinguishable with regard to the provisions
relevant to the appellant's argument. Pursuant to § 3.810(a):
A veteran who has a service-connected disability . . . is entitled to an annual clothing
allowance . . . . The annual clothing allowance is payable in a lump sum, and the following
eligibility criteria must also be satisfied:
(1) A VA examination or hospital report . . . discloses that the veteran wears or uses certain
prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheel
chair) because of such disability.
38 C.F.R. § 3.810(a). No part of this regulation departs from the statutory language granting
entitlement to "an annual clothing allowance." Because the Court holds that the statutory language
is clear and that the statutory and regulatory language are indistinguishable, the Court concludes that
the regulation must also be clear in barring receipt of multiple clothing allowances. Nonetheless,
the regulation has no bearing on what the sum of the allowance would be, but instead outlines the
mechanism by which VA should determine which veterans qualify for the clothing allowance,
namely, those veterans who receive a VA examination or hospital report disclosing the use of a
qualifying appliance and resulting wearing out or tearing of clothing. This is a reasonable gap-
filling provision that the Court is bound to uphold. See Sears, 349 F.3d at 1332. In spite of the
appellant's argument, evaluation of the regulatory language provides no reason to apply Brown in
this instance.
C. C&P Director Letter
Finally, the appellant challenges the Board's reliance on the C&P Director's letter, in which
the Director stated that section 1162 only allows for one clothing allowance per eligible veteran per
year. R. at 3 (citing R. at 39). The appellant argues that the Court should only afford the opinion
8
deference in accord with its "power to persuade." Appellant's Reply Br. at 10 (citing Skidmore v.
Swift & Co., 323 U.S. 134 (1944)).
Contrary to the appellant's assertions, Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006)
governs the appropriate deference to apply to the Director's opinion letter, to the extent the letter
embodies VA's interpretation of its own regulation. In Smith, the Federal Circuit disagreed with the
claimant's argument that VA's interpretation of a regulation, which was expressed in unpublished
statements or litigation positions, was not entitled to deference. Id. at 1351. The court found:
"Contrary to Chevron deference, which applies to an agency's interpretation of a statute and
generally requires relatively formal administrative procedures such as notice and comment
rulemaking or formal adjudication, an agency's interpretation of its regulations does not require
observance of those formalities in order to be afforded deference." Id. Nevertheless, because the
Court has determined that the statute is clear, and that the regulation is a reasonable gap-filling
provision, the question of the deference to be afforded to this letter is immaterial to resolution of this
appeal.
III. CONCLUSION
The Court sympathizes with the appellant's condition and his efforts to seek the greatest
possible recompense. However, given the limits of the statutory language governing the benefit he
seeks, the Court is unable to grant the appellant the relief he requests. Congress of course can
choose to provide for multiple clothing allowances, but that decision is the responsibility of the
legislative branch, not this Court. Cf. Morton v. West, 12 Vet.App. 477, 486 (1999).
After consideration of the parties' pleadings and contentions at oral argument, and a review
of the record, the Board's May 27, 2005, decision is AFFIRMED.
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