Sursely v. Peake

   United States Court of Appeals for the Federal Circuit
                                       2008-7090

                                  JAMES E. SURSELY,

                                                          Claimant-Appellant,

                                            v.

                  JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                          Respondent-Appellee.


      James R. Barney, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of
Washington, DC, argued for claimant-appellant. On the brief was Ronald L. Smith. Of
counsel on the brief was Zachary M. Stolz, Chisholm, Chisholm & Kilpatrick, of Washington,
DC.

       Meredyth D. Cohen, 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 Gregory G. Katsas, Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief
were David J. Barrans, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office
of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Mary J. Schoelen
 United States Court of Appeals for the Federal Circuit
                                      2008-7090

                                JAMES E. SURSELY,

                                                      Claimant-Appellant,

                                           v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                      Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 05-2194, Judge
Mary J. Schoelen.

                           ___________________________

                             DECIDED: January 7, 2009
                           ___________________________


Before NEWMAN, PLAGER, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

      Claimant-Appellant James E. Sursely appeals a decision of the Court of Appeals

for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’

Appeals (“Board”) that denied his claim for two separate clothing allowances pursuant to

38 U.S.C. § 1162. See Sursely v. Peake, 22 Vet. App. 21 (2007). The central issue in

this case is whether proper interpretation of the statute requires the Secretary of

Veterans Affairs (“Secretary”) to award more than one clothing allowance to a veteran

suffering from multiple service-connected disabilities requiring multiple orthopedic

appliances. Because the Board and the Veterans Court incorrectly read the statute to

preclude the Secretary from making more than one award, we reverse.
                                    BACKGROUND

      Mr. Sursely served on active duty from December 1966 to November 1969 in the

Republic of Vietnam. On January 11, 1969, he “was hit by a land mine,” which (among

other injuries) required a left-hip disarticulation, an above-the knee amputation of his

right leg, and an above-the-elbow amputation of his left arm. Mr. Sursely was retired

from active duty due to permanent disability. On January 8, 1970, the Department of

Veterans Affairs (“VA”) awarded Mr. Sursely a 100% disability rating, found service

connection, and awarded special monthly compensation pursuant to 38 U.S.C. § 314

(now 38 U.S.C. § 1114 (2006)).

      The VA received Mr. Sursely’s claim for two separate clothing allowances in

March 2003. Mr. Sursely explained in his application that he “is entitled to an annual

clothing allowance for [his] artificial arm, which is a prosthetic appliance that tends to

wear and/or tear shirts. . . . In addition, Mr. Sursely 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.”

      The VA Regional Office (“RO”) requested the Director of the Compensation and

Pension Service (“Director”) to provide an advisory opinion on whether § 1162, which

authorizes annual payment to veterans whose disabilities require clothing-damaging

orthopedic appliances, permitted more than one annual clothing allowance.             The

Director interpreted the statute to permit only a single allowance based primarily on

§ 1162’s use of the phrase “a (emphasis added) clothing allowance.” Jt. Appx. at 53.

The Director also found support for this interpretation in the implementing regulation, 38




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C.F.R. § 3.810, which “mirrored” the statutory language. Based on that interpretation,

the RO denied Mr. Sursely’s request for a second clothing allowance.

      After Mr. Sursely appealed this determination, the Board stated

             The Board is sympathetic to the veteran’s argument that he
             has separate and distinct service connected disabilities
             which require separate and distinct clothing allowances;
             however, the plain language of the statute and implementing
             regulation is that a single annual clothing allowance is
             payable. Accordingly, the veteran’s claim must be denied for
             lack of legal merit.

      Mr. Sursely appealed again to the Veterans Court, which again upheld the denial

of benefits, on the grounds that “the statutory language in section 1162 clearly provides

only one clothing allowance per eligible veteran.” Sursely, 22 Vet. App. at 22. Mr.

Sursely now appeals to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(c)

(2006).

                                       DISCUSSION

                         I. Jurisdiction and Standard of Review

       This court has exclusive jurisdiction to review appeals from the Veterans Court.

38 U.S.C. § 7292(c).    Our jurisdiction is limited, however, depending on the matter

reviewed. We lack jurisdiction to review factual determinations outside of constitutional

claims, but can review questions of law. Id. at § 7292(d). The jurisdictional grant further

distinguishes between statutory interpretation and regulatory interpretation. Id. We

review the Veterans Court’s interpretation of a statute de novo, Boggs v. Peake, 520

F.3d 1330, 1333 (Fed. Cir. 2008), but we can review the Secretary’s regulations, and

his interpretations of those regulations, only under a more deferential standard set out in

the statute, 38 U.S.C. § 7292(d)(1).




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       This case presents a question of statutory, rather than regulatory, interpretation.

The statute at issue in this appeal, § 1162, states that:

              The Secretary under regulations which the Secretary shall
              prescribe, shall pay a clothing allowance of $588 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.

38 U.S.C. § 1162 (2003). 1 The implementing regulation provides that “a veteran who

has a service-connected disability . . . 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 [listed] eligibility criteria must also be satisfied.” 38 C.F.R.

§ 3.810 (2008).

       The Veterans Court determined that the relevant portion of the implementing

regulation is “indistinguishable” from the statute with respect to the number of

authorized clothing allowances, and we agree. Sursely, 22 Vet. App. at 27. As a result,

the Director’s opinion letter is appropriately reviewed not as an interpretation of the VA’s

own regulation—which would be accorded substantial deference under 38 U.S.C.

§ 7292(d)(1) and Auer v. Robbins, 519 U.S. 452, 461-63 (1997)—but rather as an




       1
              An appliance that meets these statutory requirements shall hereinafter be
referred to as a “qualifying appliance.”


2008-7090                                    4
interpretation of the statute itself. 2 See Gonzales v. Oregon, 546 U.S. 243, 257 (2006)

(“[T]he existence of a parroting regulation does not change the fact that the question

here is not the meaning of the regulation but the meaning of the statute.”).

       The government argues that the regulation itself constitutes an interpretation of

the statute and that that interpretation is subject to Chevron deference. See Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). This argument fails.

The regulation uses the word “the” rather than the statute’s “a” in reference to the term

“clothing allowance.” Changing articles from “a” to “the” does nothing to resolve the

question at issue, and does not reflect a deliberate effort to interpret the statute’s

meaning.

       Consequently, the sole question presented for our review is one of statutory

interpretation. The Director’s opinion is of course entitled to respect to the extent that it

has the “power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), but as

discussed below we do not find his opinion persuasive.

                                II. Statutory Interpretation

       “[T]he starting point in every case involving construction of a statute is the

language itself.” Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 472 (1977) (quotation

marks omitted). We interpret statutes “in accordance with [their] ordinary or natural



       2
               The government does not argue that the Director’s opinion letter should
receive deference under Chevron. However, we note that, as a direct interpretation of
the statute, the Director’s opinion letter is not the type of formal exercise of delegated
authority entitled to deference under Chevron. See United States v. Mead Corp., 533
U.S. 218, 233-34 (2001) (noting that an agency determination issued without notice-
and-comment rulemaking that was binding only on individual parties was not entitled to
Chevron deference); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (noting
that “[i]nterpretations such as those in opinion letters . . . do not warrant Chevron-style
deference”).


2008-7090                                    5
meaning.” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 127 S. Ct. 1746, 1755 (2007)

(quotation marks omitted). “We must not be guided by a single sentence or member of

a sentence, but look to the provisions of the whole law.” Gade v. Nat’l Solid Wastes

Mgmt. Ass’n, 505 U.S. 88, 99 (1992) (quotation marks omitted); see also Splane v.

West, 216 F.3d 1058, 1068 (Fed. Cir. 2000) (“We must construe a statute . . . to give

effect and meaning to all its terms.”).          “If the statutory language is clear and

unambiguous, the inquiry ends with the plain meaning.” Myore v. Nicholson, 489 F.3d

1207, 1211 (Fed. Cir. 2007). In veterans benefits cases, “interpretive doubt is to be

resolved in the veteran’s favor.” Brown v. Gardner, 513 U.S. 115, 118 (1994).

       The Director, the Board, and the Veterans Court all emphasized that the statute

authorizes “a clothing allowance,” in the singular. 3 38 U.S.C. § 1162 (emphasis added).

Based on this phrasing, the VA determined that it was not statutorily authorized to pay

more than one clothing allowance to Mr. Sursely and denied Mr. Sursely’s request for a

second clothing allowance for his independently qualifying orthopedic appliances

affecting different articles of clothing. We disagree with this interpretation.

       The United States Code provides very few intrinsic rules of construction.

However, 1 U.S.C. § 1 (2006) provides that “unless the context indicates otherwise—

words importing the singular include and apply to several persons, parties, or things;

words importing the plural include the singular.”         As a result, it is impossible to

determine the proper boundaries of the Secretary’s authority pursuant to § 1162 with

reference only to the singular nature of the indefinite article “a.”        Instead, a more



       3
              All three also emphasized that the implementing regulation similarly refers
to “[t]he clothing allowance,” but as discussed above this simply paraphrases the
statutory language—it does not interpret it. 38 C.F.R. § 3.810 (emphasis added).


2008-7090                                    6
thorough consideration of the statutory provision as a whole is required to provide the

appropriate context. See, e.g., Pollard v. E. I. du Pont de Nemours & Co., 532 U.S.

843, 852 (2001) (reading the relevant statute as a whole to properly interpret a

particular term within it).

         In relevant part, the statute provides for “a clothing allowance” for “each veteran”

who, “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.” 38 U.S.C. § 1162. The key to clearly

understanding the statute is the connection between the phrases “a clothing allowance”

(setting out the benefit) and “a prosthetic or orthopedic appliance” (setting out the

qualification for the benefit). This language is not a limitation, and does not expressly

limit the veteran to a single clothing allowance. Instead, by linking receipt of the benefit

to a single qualifying appliance, Congress recognized that multiple appliances might

allow the award of multiple benefits. 4

         To the extent that the Veterans Court’s contrary interpretation suggests

ambiguity in the statute, two factors require us to resolve that ambiguity in Mr. Sursely’s

favor.       First, the link between a single clothing allowance and a single qualifying

appliance is supported by Congress’s decision to amend the statute in 1989. See, e.g.,

Stone v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we

presume it intends its amendment to have real and substantial effect.”). As originally



         4
               Because the statute speaks in mandatory language, the Secretary is in
fact required to pay multiple clothing allowances to a veteran who, as determined under
the Secretary’s regulations, uses multiple qualifying appliances. 38 U.S.C. § 1162 (“The
Secretary . . . shall pay a clothing allowance” upon determining that the veteran qualifies
(emphasis added)).


2008-7090                                     7
passed in 1972, the statute provided for a clothing allowance based on a disability

necessitating the use of “a prosthetic or orthopedic appliance or appliances.” Veterans’

Compensation and Relief Act of 1972, Pub. L. No. 92-328, § 103, 86 Stat. 393, 394

(emphasis added). The reference to a single clothing allowance for veterans using

multiple appliances in the 1972 version demonstrates that the original version did not

permit a veteran to receive multiple allowances for multiple prosthetic appliances. The

language of the 1972 statute would have supported the Secretary’s position and the

denial of Mr. Sursely’s claim would have been proper.

      In 1989, however, Congress amended the statute to delete the reference to

multiple appliances. Veterans’ Benefits Amendments of 1989, Pub. L. No. 101-237,

§ 112, 103 Stat. 2062, 2065. The present statute now provides for a clothing allowance

based on a disability necessitating the use of “a prosthetic or orthopedic appliance.”

The amended language indicates that the statute no longer contemplates the payment

of a single clothing allowance for the use of multiple appliances.    By changing the

qualification for a clothing allowance from single or multiple orthopedic appliances to

only a single qualifying appliance, Congress evidenced a clear intent to provide

additional benefits for those veterans such as Mr. Sursely who use multiple orthopedic

appliances.

      Second, in the face of statutory ambiguity, we must apply the rule that

“interpretive doubt is to be resolved in the veteran’s favor.” 5 Brown, 513 U.S. at 118.

Clearly it is more favorable to veterans if the clothing allowance may be awarded on a

      5
              Because the Secretary has not provided an interpretation of the statute
eligible for Chevron deference, we need not consider the applicability of Sears v.
Principi, 349 F.3d 1326 (Fed. Cir. 2003), which properly urges caution when considering
the meaning of a statute in light of both Brown and Chevron.


2008-7090                                 8
per-appliance, rather than a per-veteran basis. Thus, even if the government’s asserted

interpretation of § 1162 is plausible, it would be appropriate under Brown only if the

statutory language unambiguously permitted only one clothing allowance per veteran.

As discussed above, the language at a minimum permits the reading whereby the

benefit is linked to each qualifying appliance. The rule in Brown therefore requires that

expansive reading of the applicable statute.

      In addition to its primary focus on the word “a” in the statute, the Veterans Court

raised two additional points in support of its conclusion that the statute authorized a

single annual clothing allowance, neither of which is persuasive. First, the Veterans

Court viewed the statute’s applicability to prosthetic appliances or certain skin problems

as evidence that only a single annual clothing allowance was authorized, but we

disagree with its analysis.   It reasoned that because a veteran could qualify for a

clothing allowance through use of a prosthetic appliance “or” through use of certain skin

medications, “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.” Sursely, 22 Vet. App. at 25. The conclusion

does not follow from the premise. The word “or” simply signifies that either a prosthetic

appliance or a skin cream is sufficient to qualify for the allowance. It implies nothing

about whether, after the veteran has been awarded a clothing allowance based on a

prosthetic appliance, the veteran can also be considered for a second clothing

allowance based on a qualifying skin condition. Thus, the existence of two sufficient

qualifying conditions connected by the word “or” does not weigh for or against the




2008-7090                                  9
interpretation adopted by the Veterans Court, and therefore does not impact the

statutory interpretation we adopt above.

       Second, the Veterans Court rejected Mr. Sursely’s proposed interpretation as

“irrational” because it would permit a veteran with multiple prosthetic appliances

affecting a single article of clothing to receive multiple clothing allowances. Sursely, 22

Vet. App. at 25-26. This is not an irrational result, 6 and in any case there is no statutory

language that requires the Secretary to ignore the practical situation of the veteran

applying for benefits.    In other contexts, the VA has promulgated regulations that

prevent “pyramiding” of disability ratings. See 38 C.F.R. § 4.14 (2008) (“The evaluation

of the same disability under various diagnoses is to be avoided.”). In general, this

prevents a veteran from classifying a single injury in multiple categories and combining

the resulting disability ratings. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In that

context the question is whether the pertinent symptoms for each classification of the

injury overlap. Id. at 262. If the Secretary believes that damage to a single garment

resulting from multiple prosthetic appliances is “overlapping” in this manner, the

appropriate procedure would be to promulgate regulations to that effect.




       6
              If multiple prosthetic appliances affect the same garment, this might in
some circumstances cause that garment to wear out faster than if affected by a single
prosthetic appliance. In such cases, additional allowances would not be irrational at all.


2008-7090                                    10
                                        CONCLUSION

       Because the Veterans Court erroneously concluded that the statute prohibited

the award of multiple clothing allowances to a veteran, we reverse and remand for a

determination of whether Mr. Sursely qualifies for multiple clothing allowances under the

statute as we have interpreted it.

                             REVERSED AND REMANDED

Costs to Appellant.




2008-7090                                  11