Hermogenes v. BrownHermogenes v. Brown
Lead Opinion
FARLEY, Judge, filed the opinion of the Court. KRAMER, Judge, filed a concurring opinion.
This is an appeal from a March 1, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which (1) found that the appellant’s non-serviee-conneeted disability pension was properly terminated on February 1, 1990, and (2) denied entitlement to reinstatement of non-service-connected pension benefits effective February 1, 1991. Although the underlying facts are not in dispute, this appeal presents an issue of stаtutory interpretation not previously addressed by this Court. For the reasons that follow,
I. BACKGROUND
The appellant served on active duty in the United States Navy from June 1946 to October 1948. Record (R.) 23-25. In July 1989, four months prior to his sixty-fifth birthday, the appellant filed a claim for а non-service-connected disability pension. R. at 44-47. Pension benefits were awarded effective November 1, 1989, based upon the presumption created by the then-controlling law that he was permanently and totally disabled by virtue of having attаined the age of sixty-five on October 2,1989. R. at 73.
Having been compulsorily retired at age sixty-five from his job with the Philippine government, the appellant received lump sum gratuity benefit payments on December 29, 1989, in the amount of 316,507 pesos, and on Januаry 31, 1990, in the amount of 111,125 pesos. R. at 85-89. In August 1990, he was notified by the regional office (RO) that his non-service-conneeted pension was discontinued effective February 1,1990, because those benefit payments caused his annual income to exceеd the $10,014 maximum allowable under
In February 1991, the appellant applied for reinstatement of his pension benefits. R. at 126-27. By letter datеd February 19, 1991, the appellant was advised that as a result of a change in law he was no longer eligible for pension benefits upon turning sixty-five and that in order to qualify for pension benefits, he was required to submit evidence of a permanent and tоtal disability and inability to obtain and maintain gainful employment. R. at 135. The appellant did not respond to this letter or submit the required evidence, and in May 1991, his claim for entitlement to a non-service-connected disability pension was denied. R. at 139.
Shortly thеreafter, the appellant requested and was granted a hearing during which he testified that he did not have a permanent and total disability which would prevent him from working. R. at 155. In July 1991, an RO hearing officer denied reinstatement of benefits. R. at 163-64. In August 1991, the appеllant filed a Notice of Disagreement raising as issues the discontinuance of benefits in February 1990 and the denial of reinstatement of benefits in May 1991. R. at 168. In August 1992, the BVA issued a decision remanding the case so that the RO could address the issue of whether pensiоn benefits were properly discontinued and so the appellant could undergo a physical examination. R. at 183-90.
In April 1993, the RO issued a decision determining,- inter alia, that a permanent and total disability rating was not warranted. R. at 222. In June 1993, the RO issued a Stаtement of the Case (SOC) regarding whether the appellant’s benefits were properly terminated (R. at 225-33) and a Supplemental SOC regarding the denial of reinstatement of his benefits (R. at 238-48). In March 1994, the BVA issued a decision which determined that the apрellant’s pension was properly terminated in 1990 because his annual income that year exceeded the statutory limit, and that, based upon a memorandum from the VA Central Office, he was not entitled to the reinstatement of pension benеfits because the evidence did not show that he was entitled to a permanent and total disability rating. R. at 6-16.
II. TERMINATION OF BENEFITS
Pursuant to the applicable law and regulation effective on the dates on which the appellant received lump sum gratuity benefit payments, a veteran with two dependents seeking a non-serviee-eonnected pension was subject to an annual income limitation of $10,014.
The record indicates that the appellant received lump sum gratuity benefit payments totalling 427,632 pesos. The BVA concluded that these payments were equal to $19,376 and caused the appellant’s income for the
The regulations clearly contemplate the inclusion of this type of lump sum retirement payment as income in one annualization period. Section 3.271 of title 38 of the Code of Federal Regulations provides that income received on a one-time basis during a twelvemonth annualization period, i.e., “nonrecurring income,” is to be included in pension computations of income for the twelve-month annualization period following receipt.
III. ENTITLEMENT TO REINSTATEMENT OF BENEFITS
The version of § 1502 in effect when the appellant filed his original claim for a nоn-service-connected pension provided that a veteran would be considered to be permanently and totally disabled at the age of sixty-five.
1990.” Ibid. Thus, veterans filing сlaims after the effective date will be considered permanently and totally disabled only if they are unemployable as a result of a lifetime disability or, if not unemployable, suffer from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation.
The determinative issue here, therefore, is whether the appellant’s 1991 request for reinstatement of benefits is a “claim” filed after October 31, 1990. If so, the appellant must meet the new, stricter criteria of
It is apparent from the BVA decision that the appellant’s 1991 request for reinstatement was treated by the BVA as аn independent, and therefore a new claim. R. at 11. The Board relied upon a memorandum from the VA Central Office dated March 1993 (R. at 219) citing the preamble to a proposed revision of
Public Law 101-508 eliminated the presumption of pension eligibility at age 65 for all claims filed after October 31, 1990_ If pension entitlement is terminated for any reason, eligibility must be determined under the new criteria upon receipt of a reopened claim.
56 Fed.Reg. 20,395 (May 3, 1991) (emphasis added). After the requisite notice and сomment period, the proposed rule was adopted, without modification, effective December 16,
The Supreme Court has held that an interpretation of a statute by the administrative agency charged with administering it is entitled to deference to the extent that the administrative construction, whether reached by adjudicatiоn or by rulemaking, is not inconsistent with the statutory mandate and does not frustrate the policy that Congress sought to implement. Fed. Election Comm’n v. Democratic Senatorial Campaign Comm.,
The Secretary’s interpretation of Public Law 101-508 appears to be both reasonable and cоnsistent with the statutory mandate 'and legislative intent. In this regard, the Board’s interpretation furthers, rather than frustrates, the intent of Congress to eliminate awards of pension benefits based solely upon an individual’s age. Further, the BVA’s interpretation is reasonаble insofar as it comports with other rules promulgated by the Secretary. While not free from doubt, the regulations and VA Adjudication Procedure Manual contemplate that the burden of submitting evidence to establish entitlement to a pension аfter a previously awarded pension entitlement is terminated for excessive income is on the veteran. See, e.g.,
The Court holds that the BVA’s interpretation of Public Law 101-508 and its application of that law to the appellant’s claim is reasonable and not in conflict with the statutory mandate, policy, or purpose. Accordingly, the decision of the BVA with respect to the denial of a reinstatement of benefits will be affirmed.
IV. CONCLUSION
Upon consideration of the record and the briefs of the appellant and the Seсretary, the March 1, 1994, decision of the Board of Veterans’ Appeals is AFFIRMED.
Concurrence Opinion
concurring:
I concur, but arrive at the result reached in Part III by way of a slightly different analysis. In the absence of the appellant’s pursuit of appellate review (with the filing of a Notice of Disagreement and Substantive Appeal) as to the regional office’s August 1990 termination of adjudication, such termination became final one year after the date of such determination. As a consequence, the only avеnue open to the appellant to reestablish such benefits was the filing of a new claim, an action he took with his February 1991 letter to the regional office (which letter clearly constituted the filing of a new claim rather than a disagreеment with the August