Helen Barela v. James B. PeakeHelen Barela v. James B. Peake
Before GREENE, Chief Judge, and LANCE and DAVIS, Judges.
GREENE, Chief Judge:
Mrs. Helen Barela, widow of veteran Jose L. Barela, appeals, through counsel, an October 18, 2005, Board of Veterans’ Appeals (Board) deсision that denied her claims for VA service connection for the cause of her husband’s death, accrued benefits, dependency and indemnity compensation (DIC), and service-connected burial benefits. Record (R.) at 1-19. Mrs. Barela argues that the Board should have applied the provisions of
I. BACKGROUND
At the time of Mr. Barela’s death, in January 2000 (R. at 1359), he was receiving compensation benefits for his VA sеrvice-connected post-traumatic stress disorder and shell fragment wound residuals at a combined disability rating of 100%, effective May 29, 1991. R. at 1354-57. In May 2000, Mrs. Barela filed with VA, through her current counsel, a claim for, inter alia, DIC benefits, arguing that the cause of her husband’s death was service connected. R. at 1368-72, 1401-04. In February 2003, a VA regional office (RO) determined that Mr. Barela’s death was not service connected and that therefore Mrs. Barela was not entitled to DIC under
II. LAW AND ANALYSIS
The question before the Court is whether the Board was corrеct in not awarding DIC benefits under section 1311(a)(2) to a veteran’s qualified survivor who had not first qualified for DIC benefits under section 1310 or 1318. The Court’s inquiry into the proper interpretation of section 1311(a)(2) is a question of law, аnd the
“ ‘Statutory interpretation begins with the language of the statute, the plain meaning of which we derive from its text and its structure.’ ” Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed.Cir.2007) (quoting McEntee v. MSPB, 404 F.3d 1320, 1328 (Fed.Cir.2005)). “In evaluating whether Congress has directly spoken to the question at issue, the starting point is tо examine the language and structure of the statute itself.” Sursely v. Peake, 22 Vet.App. 21, 24 (2007) (citing Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984))). “‘[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. 352, 354 (1999) (alteration in original) (quoting 2A N. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (5th ed.1992)); see Sweitzer v. Brown, 5 Vet.App. 503, 505 (1993); see also Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) (“Determining a statute’s plain meaning requires examining the specific language at issue and the overall structure of the statute.”), aff‘d sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff‘d, 513 U.S. 115 (1994); Johnson v. Brown, 9 Vet.App. 369, 371 (1996) (“[I]f ‘the plain meaning of a statute is disсernible, that plain meaning must be given effect.’ ” (quoting Tollman v. Brown, 7 Vet.App. 453, 460 (1995))); Smith v. Derwinski, 2 Vet.App. 429, 431 (1992) (“[W]hen a reviewing court ‘find[s] the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.’ ” (second аlteration in original) (quoting Demarest v. Manspeaker, 498 U.S. 184, 191 (1991))).
Pursuant to
(a)(1) Dependency and indemnity compensation shall be paid to a surviving spouse at the monthly rate of $1,067.
(2) The rate under paragraph (1) shall be increased by $228 in the case of the death of a veteran who at the time of death was in receipt of оr was entitled to receive (or but for the receipt of retired pay or retirement pay was entitled to receive) compensation for a service-connected disability that was rated tоtally disabling for a continuous period of at least eight years immediately preceding death. In determining the period of a veteran’s disability for purposes of the preceding sentence, only pеriods in which the veteran was married to the surviving spouse shall be considered.
Section 1311(a)(2) is analogous to obtaining an increase in one’s disability rating. It is well settled that, tо receive an increase in compensation, one must have already established entitlement to the benefit. See Vazquez-Flores v. Peake, 22 Vet.App. 37, 43 (2008) (“[A]n increased-compensation claim centers primarily on evaluating the worsening of a disability that is already service connected.”); see also Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (in increased-rating claim entitlement to compensation has already been established). Thus, the phrase “shall be increased” found in section 1311(a)(2) contemplates that a claimant must have qualified for benefits under section 1311(a)(1). Additionally, it is evident, from the straightforward language in the statutes and the statutory scheme as a whole, that sections 1310 and 1318 provide the criteria for obtaining DIC benefits and the actual amount of those benefits is provided under section 1311(a)(1). See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”).
“The ‘strong presumption’ that the plain language of the statute expresses congressional intent is rebutted only in ‘rare and excеptional circumstances,’ when a contrary legislative intent is clearly expressed.” Ardestani v. INS, 502 U.S. 129, 135-36 (1991) (citation omitted) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12 (1987); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). “[A]mbiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language .... ” Ardestani, 502 U.S. at 137.
Mrs. Barela provides nо authority for her assertion that the increase authorized in section 1311(a)(2) is a basis for an initial award of DIC benefits independent of section 1310 or 1318. Her counsel’s vague assertions of support in the legislativе history of the DIC statutes are not convincing. There is no expressed or implied legislative intent contrary to the plain meaning of the statute. Indeed, a review of the legislative history of the Veterans’ Benefits Act of 1992,
The Committee wishes to note that it does not intend this rate revision to act as a liberalization for basic eligibility for DIC or for benefits paid undеr chapter 13 at DIC rates. For instance, in the case of a veteran suffering from a totally disabling service-connected disability whose death is adjudicated to be non-service-connected, the basic eligibility of his or her surviving spouse would continue to be predicated on the eligibility criteria found in section 1318 of title 38, United States Code.
Id. at 3653. Thus, even if there were any ambiguity in the plain language of the statemеnt, and we hold that there is not, the legislative history accompanying the statute clarified the intent of Congress not to create a new avenue for obtaining DIC benefits through section 1311(a)(2) or any other part of section 1311.
Although counsel for Mrs. Barela purports to rely on the legislative history for the Veterans’ Benefits Act of 1992, inexplicably he failed to mention the above-referenced portions of either the joint explanatory statement or the House Report. Moreover, at oral argument counsel repeatedly stated that there was nothing in the legislative history of section 1311(a)(2) that pertаined to the question before the Court and specifically responded that there were no Committee reports of note. An attorney appearing before this Court is expected to comply with the MODEL RULES OF PROFESSIONAL CONDUCT, unless otherwise provided by the Court’s Rules of Admission and Practice. U.S. VET.APP. R. ADM. & PRAC. 4(a). An attorney, therefore, has the ethical duty to educate himself about the relevant law, analyze the factual and legal elements of a case, adequately prepare, and zealously represent his client’s interest. See MODEL RULES OF PROF’L CONDUCT R. 1.1 (Competence) and 1.3 (Diligence) (2002). As an experienced counsel before this Court, Mrs. Barela’s counsel is reminded not to depart from these obligations.
III. CONCLUSION
Upon consideration by the Court of the foregoing analysis, the record on appeal, and the parties’ pleadings, the October 18, 2005, Board decision is AFFIRMED.