Donald Mulder v. Sloan D. Gibson
2014 U.S. Vet. App. LEXIS 1180
| Vet. App. | 2014Background
- Donald L. Mulder, a VA beneficiary rated 50% (including a 40% back rating), was in custody after pleading no contest to a felony on May 19, 2006; he was sentenced June 16, 2006.
- VA reduced his disability compensation effective July 19, 2006 (the 61st day after May 19), under 38 U.S.C. § 5313 and 38 C.F.R. § 3.665(a).
- Mulder contested the effective date, arguing the 61‑day trigger should run from the sentencing date, not the date of conviction/plea acceptance.
- Mulder also challenged VA’s duties to assist/notify, argued VA should have considered reinstatement of benefits after his sentence was vacated/modified, and contested an asserted overpayment; some overpayment issues were remanded and are not before the Court.
- The Board found the effective date of July 19, 2006 proper because court records listed conviction on May 19, 2006; the Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper effective date for benefit reduction: conviction date vs sentencing date | Mulder: 61‑day period should begin at sentencing; incarceration between conviction and sentencing was not "for conviction" under Wisconsin law | Secretary: 61‑day period begins once convicted and incarcerated for that conviction; pre‑sentence incarceration counted once conviction is entered | Court: Affirmed VA—plain language and persuasive agency interpretation treat incarceration after conviction (before sentencing) as triggering the 61‑day calculation |
| VA duty to assist / notify | Mulder: VA failed to notify he couldn’t obtain necessary records and failed to assist in development | Secretary: No duty because law (not factual development) controlled outcome and facts were not in dispute | Court: No clear error in Board’s finding; VCAsA duties not applicable where law is dispositive |
| Claim for reinstatement of benefits after sentence vacated/modified | Mulder: He informed VA his conviction was overturned and thus reinstatement was reasonably raised | Secretary: Record shows sentence was vacated/modified, not conviction overturned; no basis for reinstatement | Court: Board properly found conviction not overturned; no duty to infer reinstatement claim given the record |
| Alleged overpayment / debt creation | Mulder: VA improperly asserts an overpayment/debt from delayed withholding | Secretary: Some overpayment issues addressed by Board; remanded portions not before the Court | Court: Overpayment issue was remanded by the Board and is not before the Court; Court did not decide debt issue here |
Key Cases Cited
- Gardner v. Derwinski, 1 Vet.App. 584 (1991) (statutory/regulatory interpretation principles)
- Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (deference to agency interpretation of its own regulation)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own regulations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight accorded agency interpretations depends on persuasiveness)
- Gonzales v. Oregon, 546 U.S. 243 (2006) (limits on deference where regulation parrots statute)
- Wanless v. Shinseki, 23 Vet.App. 143 (2009) (purpose of § 5313 and avoiding duplicative government expenditures)
- Sharp v. Shinseki, 23 Vet.App. 267 (2009) (distinguishing statutory vs regulatory interpretation)
- Shephard v. Shinseki, 26 Vet.App. 159 (2013) (resumption of payment rules after release)