[00:00:00] Speaker 00: Our next case is Buffington versus McDonough, 2020, 1479, Ms. [00:00:07] Speaker 00: Hines. [00:00:10] Speaker 01: Thank you very much. [00:00:11] Speaker 01: May it please the court, Dori Hines on behalf of the appellant, Mr. Buffington. [00:00:17] Speaker 01: This case involves the payment of disability compensation to previously disabled veterans who returned to active service. [00:00:26] Speaker 01: The Veterans Court committed legal error when it concluded that the one-year forfeiture provision in Regulation 3.654b2 is not inconsistent with the statute. [00:00:40] Speaker 01: So let's consider first the language of the statute. [00:00:42] Speaker 01: It is undisputed that Section 1110 mandates that the United States will pay disability compensation to veterans who establish they are entitled to them. [00:00:55] Speaker 00: But Council, that's general language. [00:00:59] Speaker 00: And so there's a gap here with respect to details, and that's what the regulation fills. [00:01:06] Speaker 01: Respectfully, Your Honor, there is no gap in the statute. [00:01:11] Speaker 01: Section 1110 provides that the United States will pay, and what Section 5304C provides is a singular exception to the payment mandate for disability compensation. [00:01:24] Speaker 01: It is an unequivocal bar to dual compensation. [00:01:26] Speaker 01: Now, if you consider sections 1110 and 5304C together, disability compensation is paid except when it is not paid. [00:01:37] Speaker 01: It's a simple and straightforward proposition. [00:01:40] Speaker 01: And that simple, straightforward proposition is mandated by the language of the statute. [00:01:45] Speaker 01: And importantly, what is implicit in section 5304C [00:01:52] Speaker 01: is that that bar on dual compensation implies that disability compensation was provided, disability compensation will stop for that period, and that disability compensation will resume. [00:02:10] Speaker 03: How do you, in this determination of whether there's a gap, how do you read the fact or what you think about the fact that in 5112b3, [00:02:21] Speaker 03: Congress set very specifically the effective date to discontinue benefits upon return to active duty. [00:02:29] Speaker 03: But there's no countering statement about resuming them. [00:02:37] Speaker 01: It is true, Your Honor. [00:02:38] Speaker 01: 5112B3 states specifically when disability compensation will stop. [00:02:45] Speaker 01: And really what that does is it confirms the period of active [00:02:50] Speaker 01: service is just that. [00:02:52] Speaker 01: It is the shortest period of time. [00:02:55] Speaker 01: If Congress had intended that the bar on dual compensation be anything other than the period, any period of active duty service, Congress could have set a different date in 5112B3, but what Congress did do was disability compensation stops at the latest possible time confirming [00:03:18] Speaker 01: that the period of active duty service means just that. [00:03:22] Speaker 01: And reading those provisions together, 512B3 and 5403, 512 establishes when disability compensation stops. [00:03:34] Speaker 01: It unequivocally says that. [00:03:35] Speaker 01: 5304 provides the duration, any period of active service. [00:03:42] Speaker 01: And the words of the statute that are especially important here is [00:03:46] Speaker 01: any period of active duty service. [00:03:49] Speaker 01: And it should mean just that. [00:03:52] Speaker 01: Only that period when there is a bar on dual compensation. [00:03:57] Speaker 01: Any period outside of that is inconsistent with the purpose for which 5304 was enacted. [00:04:07] Speaker 01: It was enacted only to provide a bar on dual compensation [00:04:14] Speaker 01: not anything else. [00:04:15] Speaker 02: Ms. [00:04:16] Speaker 02: Hines, this is Judge Moore. [00:04:18] Speaker 02: So you're saying that the regulation at 3654 is inconsistent with the statute at 5304, is that right? [00:04:29] Speaker 01: That's correct, Your Honor. [00:04:31] Speaker 01: And the reason for that is the regulation engrafts this one-year forfeiture provision so that [00:04:38] Speaker 01: the VA can and has. [00:04:41] Speaker 02: Do you agree that 5304, would you agree 5304 doesn't prevent the VA from requiring a reapplication or a new application to resume benefits after the period of active service or is your view that 5304 prevents [00:05:02] Speaker 02: any application that benefits, whatever the benefits were before, they should resume exactly in the same fashion on the cease of active service. [00:05:11] Speaker 02: That they're meant to be continuous and only stop during this period. [00:05:14] Speaker 02: What is your position? [00:05:17] Speaker 01: Our position is that the government can certainly require reapplication. [00:05:21] Speaker 01: The government can require a veteran to appear for an additional medical exam. [00:05:28] Speaker 01: The government can reconsider [00:05:30] Speaker 01: the amount of disability compensation. [00:05:33] Speaker 01: So the government can do all those things. [00:05:36] Speaker 02: If your view is that the government can require reapplication or an additional medical exam, inherent in that view is the understanding that 5304 doesn't just terminate continuous benefits for an intermediate period. [00:05:56] Speaker 02: but rather terminates those benefits and then some action must be taken to restart those benefits. [00:06:04] Speaker 01: We agree that the government can require forms and it is entirely within the province of the government to do that. [00:06:11] Speaker 01: Our argument is solely that the government, by virtue of doing that, cannot affect a forfeiture based on a timing requirement that is not in the statute. [00:06:23] Speaker 02: and is in fact in our... But Ms. [00:06:27] Speaker 02: Hines, I'm trying to get you to focus on how your admission that reapplication and additional medical exams may be required is inconsistent in my personal view with your articulated interpretation for any period language in 5304C. [00:06:46] Speaker 02: Because your argument for 5304C is that it's just [00:06:50] Speaker 02: hits the pause button briefly and only during the period of active service on a benefit that the veteran is otherwise always and continuously entitled to. [00:07:01] Speaker 02: That's what I understand your argument of the statutory interpretation to be. [00:07:07] Speaker 01: Your Honor, in any time that a veteran is entitled to disability compensation, the government can require a veteran, for example, to have [00:07:18] Speaker 01: additional medical examinations. [00:07:20] Speaker 01: It can require additional information from veterans for the continuance of disability compensation. [00:07:27] Speaker 02: So what I'm saying... No, but you admitted that a new application, a reapplication is required. [00:07:34] Speaker 02: You admitted it in your brief and you admitted it in oral argument a minute ago. [00:07:38] Speaker 02: So if they have to reapply, then how is it that they are continuously entitled? [00:07:47] Speaker 01: The disability compensation, the service connection to which the veteran is entitled does not stop. [00:07:53] Speaker 01: That is different in kind than a new application or an increase in service connection or other things that a veteran can do. [00:08:03] Speaker 01: So it is significantly different here that veterans who are disabled and yet return to active service [00:08:12] Speaker 01: continue to be service-connected for their disability. [00:08:14] Speaker 01: That does not change. [00:08:16] Speaker 01: And the Veterans Court... How do you know? [00:08:18] Speaker 02: The VA absolutely awards benefits for what are non-permanent disabilities. [00:08:25] Speaker 02: Not every disability gets worse with time. [00:08:28] Speaker 02: Some get better with time. [00:08:30] Speaker 02: Some improve. [00:08:31] Speaker 02: Some abate entirely. [00:08:33] Speaker 02: So how do you know that they're still entitled, at the end of active service, to disability payments? [00:08:41] Speaker 01: What the Veterans Court in its decision recognized that the veteran will continue to be service-connected for the disability for which they were receiving disability compensation. [00:08:56] Speaker 01: Now, when they return or stop active service and the period of active service in 5304C ends, they remain service-connected. [00:09:08] Speaker 01: That does not change. [00:09:10] Speaker 01: What the government can require and can do in other cases as well is for the veteran to go in for additional medical exams to consider whether the level of compensation that the veteran was previously entitled to still applies. [00:09:28] Speaker 01: So that can happen. [00:09:29] Speaker 01: That can happen here, yes, and that can happen in other circumstances too. [00:09:33] Speaker 02: You're confusing level with entitlement. [00:09:37] Speaker 02: So you're assuming there continues to exist entitlement when they cease to be on active duty. [00:09:43] Speaker 02: And what I'm suggesting to you, and I think the Veterans Court acknowledged, is that not every disability is of a permanent nature. [00:09:52] Speaker 02: And as such, there may not actually be any more entitlement when they cease to be on active duty. [00:10:00] Speaker 01: That is correct, Your Honor. [00:10:01] Speaker 01: But as the Veterans Court said at Appendix 11, [00:10:05] Speaker 01: that service connection remains in place. [00:10:08] Speaker 01: If there is a separate determination that the level of compensation for that service connection has changed, but the fact of service connection is actually important, even if the level of disability or the level of compensation is adjusted to zero. [00:10:24] Speaker 01: And what continues through before [00:10:28] Speaker 01: disability compensation was being provided and then stops at the period of active service. [00:10:34] Speaker 01: Service connection does remain. [00:10:36] Speaker 01: That does not stop. [00:10:37] Speaker 01: And what the government can require is additional information and medical exams, as I said. [00:10:44] Speaker 01: But there is that continuity from before until after with a break just for the period, any period of active service. [00:10:53] Speaker 03: And in this case, Ms. [00:10:55] Speaker 03: Hines, did the government [00:10:58] Speaker 03: dispute his continuing disability? [00:11:02] Speaker 01: Not that I am aware. [00:11:03] Speaker 01: And I don't believe that's in the record, but I am not aware that there was any dispute on the continued entitlement. [00:11:10] Speaker 01: The particular, and I know the facts aren't an issue here, but the disability that Mr. Buffington was service-connected for was tinnitus, which is generally considered a condition that once you have it, you have it. [00:11:24] Speaker 01: And my understanding is that disability compensation, there was no dispute that he continued to be entitled to receive it and that he is receiving it now. [00:11:37] Speaker 01: The issue was when, was the date. [00:11:41] Speaker 01: So he reapplied for or, you know, told the VA that he was no longer in active service at a certain point in time. [00:11:50] Speaker 01: He did not do that within the one-year period. [00:11:54] Speaker 01: he was found to be entitled to disability compensation when he told, for a year before he told the VA. [00:12:03] Speaker 02: The problem with the interpretation that you are seeking is that what would happen, how would it play out if someone didn't reapply and you acknowledge that a reapplication could be required. [00:12:18] Speaker 02: Suppose someone didn't reapply for 10 years. [00:12:21] Speaker 02: And when they reapplied in 10 years, [00:12:24] Speaker 02: there was either an abatement or a worsening of their condition. [00:12:29] Speaker 02: Who knows? [00:12:29] Speaker 02: It did not remain constant. [00:12:31] Speaker 02: What is the government supposed to do in terms of assessing retroactively what level of disability compensation they need to give the veterans for the 10 prior years when they got out of active service up until this point in time? [00:12:47] Speaker 02: Is they just supposed to guess about the progression of the illness or disease or how in the world would the VA be positioned to make that sort of assessment? [00:12:59] Speaker 01: Sure, and that's a great question. [00:13:01] Speaker 01: And that's something the VA does all the time. [00:13:04] Speaker 01: For example, in assessing cue claims where there's clear and unmistakable error, it is not at all uncommon for the VA to be required to go back substantial periods of time and to consider levels of [00:13:20] Speaker 01: disability over periods of time and determining whether the disability remains, whether the disability should be staged and for what periods of time. [00:13:29] Speaker 01: And what the VA will do is get medical evidence and then have medical opinion and will reach a conclusion. [00:13:38] Speaker 01: But those types of determinations are well within the purview of VA and something they do all the time. [00:13:47] Speaker 00: Thank you, Ms. [00:13:48] Speaker 00: Hines. [00:13:48] Speaker 00: We'll give you your three minutes to repuddle back. [00:13:51] Speaker 00: We'll hear from Ms. [00:13:52] Speaker 00: Rose. [00:13:54] Speaker 04: Thank you. [00:13:55] Speaker 04: May I please the court? [00:13:58] Speaker 04: In Section 503 for the Congress established an unequivocal bar on the receipt of dual benefits. [00:14:05] Speaker 04: And as the court has noted in Section 5112, Congress set a specific date on which [00:14:12] Speaker 04: disability benefits would terminate when a veteran goes into active duty service. [00:14:17] Speaker 04: But they were violent as to when benefits would recommit. [00:14:23] Speaker 04: And that is, we contend, an intentional gas left by Congress to permit... Well, wait. [00:14:30] Speaker 02: I think you said 5034. [00:14:31] Speaker 02: I think you mean 5304. [00:14:33] Speaker 04: 5304. [00:14:34] Speaker 04: Yes, thank you. [00:14:35] Speaker 02: I apologize. [00:14:36] Speaker 02: So if you're talking about 5304, where in 5304 does it explain that benefits terminate? [00:14:44] Speaker 04: Well, in 5304, it establishes a prohibition against the duplication of benefits. [00:14:51] Speaker 04: So I apologize. [00:14:52] Speaker 04: I think what I meant to say is that there is a bar on dual payment. [00:15:00] Speaker 02: Well, I mean, but why don't you confront the statutory language? [00:15:04] Speaker 02: It says you can't have double payment for a period when they're in active service. [00:15:09] Speaker 02: So what does that word period mean? [00:15:12] Speaker 02: How ought we to interpret that statutory section? [00:15:17] Speaker 04: Any period defines the period in which double payment is not permitted. [00:15:23] Speaker 04: So the VA unequivocally cannot pay veteran disability payments to any claimant who is receiving active duty service pay. [00:15:37] Speaker 02: Under that logic, this statutory section defines both a start and a stop point because of the word period. [00:15:46] Speaker 02: The word period indicates the precise start and stop for the disability benefits or the pension balance benefits, right? [00:15:56] Speaker 04: No, respectfully, Your Honor, that defines the [00:16:01] Speaker 03: the minimum period of discontinuation, and when you read that in connection with 5-1-1-2... Well, it doesn't say that it's a minimum period of discontinuation, and it doesn't say for the period while they're in active service and any other period the VA might want to impose or add on to active service, does it? [00:16:22] Speaker 04: No, but it also doesn't speak in terms in 5-0-4 of a discontinuation. [00:16:26] Speaker 04: What it says is a prohibition against duplication of benefits. [00:16:29] Speaker 04: So what 5304 tells us is that the VA cannot pay any veteran who is also receiving active duty payment during any period for which the person receives active service pay. [00:16:43] Speaker 04: What's not answered is when that start and end date for discontinuation of benefits begins and when the recommencement of benefits begins after a service. [00:16:57] Speaker 02: So, Council, this 5304 pertains to pension, compensation, which is the umbrella under which the disability falls, or retirement pay. [00:17:10] Speaker 02: Let's say we're talking about pension now, because it covers all three. [00:17:14] Speaker 02: So, with regard to pension, [00:17:16] Speaker 02: A pension is sort of undeniable, right? [00:17:20] Speaker 02: This is the rate at which your pension is going to be paid based on your years of prior service. [00:17:25] Speaker 02: Is that relatively close to accurate? [00:17:30] Speaker 02: I believe so, Your Honor. [00:17:33] Speaker 02: Okay, so you've got a set amount for pension. [00:17:36] Speaker 02: Say it's $40,000 a year is your pension from the military based on your years in service. [00:17:42] Speaker 02: And then all of a sudden you get called up on active duty because, you know, you're a reservist and you're out of the service, but you're a good, you know, citizen of the United States and you're willing to continue to serve if needed. [00:17:53] Speaker 02: So you get called up in active duty. [00:17:56] Speaker 02: Now you can't receive your $40,000 pension while you're on active duty, correct? [00:18:02] Speaker 02: Correct. [00:18:03] Speaker 02: Okay. [00:18:04] Speaker 02: So then all of a sudden your active duty stops. [00:18:08] Speaker 02: shouldn't your pension resume on the day your active duty stops? [00:18:11] Speaker 02: I mean, there's no dispute over the amount it should be. [00:18:15] Speaker 02: The amount is set in stone, quite frankly. [00:18:17] Speaker 04: Well, I do think there is a difference between a pension that is being paid directly by your military service branch for your prior service and disability pay, which the statutory scheme is designed to compensate [00:18:35] Speaker 04: veterans for degrees of disability to the extent that it interferes with their ability to be gainfully employed. [00:18:45] Speaker 04: So with a pension, again, this would, if we're talking about a pension that is administered by your service branch, I think it would be fair to assume, though I am not familiar with any regs addressing it, that your pension would resume [00:19:03] Speaker 04: the day after your active service payment stops. [00:19:07] Speaker 02: Here, however... Do you have to file an application for that to have that happen? [00:19:14] Speaker 04: Again, if we're talking about a pension that's, you know, if we're talking about a Navy veteran and their Navy pension, I'm not aware of that process. [00:19:23] Speaker 04: Some notice may be necessary, but here I think we are in a different situation because with 5-1-1-2 and as the court [00:19:32] Speaker 04: Recognized in its questioning to Mr. Buffington, a return to active duty service may suggest that there has been a change in the claimant's condition, but at a minimum, [00:19:47] Speaker 02: But Congress didn't legislate separately for pensions. [00:19:51] Speaker 02: In fact, they didn't even mention disability in 5304C. [00:19:53] Speaker 02: They mentioned compensation, which is the rubric under which we've determined disability falls. [00:20:00] Speaker 02: But they're talking the other two categories are pension and retirement pay, both of which, it seems to me, are immutably owed to the veterans. [00:20:08] Speaker 02: So I'm a little troubled because you're asking for an interpretation of the word any period. [00:20:14] Speaker 02: which would theoretically, actually not theoretically, which since they're all in one statute, would absolutely impact all three of those. [00:20:23] Speaker 02: So if we give you the interpretation you want for the term any period, that would theoretically allow you to adopt regulations which prohibit the reinstatement of a pension without a series of hurdles. [00:20:38] Speaker 04: And so, Your Honor, I respectfully disagree because I believe that what 5304 does is it establishes [00:20:43] Speaker 04: a bar on payment. [00:20:47] Speaker 04: And that bar, if you take any period of the period in which you receive active duty service pay, then that's the minimum amount of time in which your disability benefits could be discontinued. [00:21:04] Speaker 02: Or pension, right? [00:21:05] Speaker 02: Or pension benefits. [00:21:06] Speaker 02: Right, but... The minimum amount of pension benefits could be discontinued. [00:21:12] Speaker 04: Correct. [00:21:13] Speaker 04: However, we don't have in 5112 a discussion of pension benefits like we do on compensation benefits. [00:21:22] Speaker 04: Yes, you do. [00:21:23] Speaker 04: How can you say that? [00:21:26] Speaker 04: It's right in there. [00:21:27] Speaker 04: Well, because in 5112, it talks about the effective date or reduction of discontinuation of compensation, but it doesn't mention pension. [00:21:37] Speaker 00: Counsel, so is it your view that our interpretation of 5304 [00:21:43] Speaker 00: doesn't really matter to your argument that 5112 provides a gap and 654 fills the gap. [00:22:00] Speaker 04: Yes, Your Honor. [00:22:01] Speaker 04: In 5112, Congress specifically spoke to the date on which benefits would be discontinued, but they did not speak to the date on which [00:22:12] Speaker 04: disability benefits would recommence and that left a gap and I think the recognition by Congress that the VA was in the best position to determine if additional claims processing would be needed or if there should be some responsibility placed on a claimant to file an application just as there is for a claimant to initiate the process of receiving benefits initially. [00:22:40] Speaker 04: And that gap, we believe, was reasonably filled by the regulation, which, as Congress set out in many other instances, provides claimants a year period in which they can file their claim for benefits and receive their benefits back to the date following the discontinuation of active service pay. [00:23:01] Speaker 04: And it also generously provides that a claimant who files after the year period will receive a year before their claim period. [00:23:10] Speaker 03: Yeah, I want to go back to 5112 because you expressly said it only relates to disability payments, and that's not the case. [00:23:20] Speaker 03: It says effective date of a reduction or discontinuance of compensation, dependency, and indemnity compensation or pension. [00:23:28] Speaker 04: So it's got all of them. [00:23:29] Speaker 04: I apologize, Your Honor. [00:23:31] Speaker 04: That wasn't the treating by me, and I did not mean to. [00:23:34] Speaker 04: That was a mistake on my part. [00:23:38] Speaker 03: Yeah, it was. [00:23:40] Speaker 03: Because that's important. [00:23:42] Speaker 03: Because it means that what you're saying is that we read the statute one way for certain kinds of compensation or payments, and we read it another way for the others. [00:23:55] Speaker 04: Well, if there was no reason, if 5304 is self-executing in the start and stop date, there would be no reason for Congress to address in 5112 [00:24:09] Speaker 04: the date on which they wanted the pay to end before active duty service. [00:24:18] Speaker 03: But what Congress was making very clear is that the pay ends on the day that the other pay starts, essentially. [00:24:27] Speaker 03: In other words, what they're saying is we're not going to take it further back from when you're called up to duty or any other timeframe. [00:24:37] Speaker 03: It would actually support the conclusion that Congress wanted it to be a narrow timeframe. [00:24:46] Speaker 04: And the regulation also provides that. [00:24:50] Speaker 04: Mr. Buffington called it a forfeiture provision, but there's no forfeiture unless a claimant for whatever reason doesn't file their claim. [00:24:58] Speaker 04: And as the court has noted, there is a degree of claims processing that's involved. [00:25:02] Speaker 04: This isn't simply just turning on the cap. [00:25:05] Speaker 04: The degree of disability when benefits recommence is to be at the level of disability at the time that active duty service ends. [00:25:16] Speaker 03: But the question is, did Congress intend to put the burden on the veteran to prove his continuing disability or did Congress believe that it should be on the VA to say that disability is no longer present? [00:25:30] Speaker 03: even if, and the VA would have the ability to do that, to call them back in, say we're going to reassess your disability levels, but that's not what you're arguing here. [00:25:42] Speaker 03: What you're arguing here is that we don't even have to reassess anything. [00:25:46] Speaker 03: We can just basically take it away for an arbitrary timeframe if we choose to do so. [00:25:52] Speaker 04: No, I don't think it's an arbitrary timeframe. [00:25:54] Speaker 04: I think that the VA cannot pay [00:25:57] Speaker 04: once a member is receiving active duty service pay, and then what the VA has done is they have filled the gap left by Congress where Congress did not address the date on which benefits would be commenced by requiring a reapplication upon the end of the active duty period. [00:26:18] Speaker 03: Is it your position that every time there's any kind of silence in the statute that it necessarily creates a regulatory gap [00:26:26] Speaker 03: that the agency can fill? [00:26:31] Speaker 04: That is a very broad statement, Your Honor, so I wouldn't want to say that any time, but generally silences in schemes like this that where there has been a lot of responsibility entrusted to the Secretary to fill in the gaps and create [00:26:55] Speaker 04: regulations, silences do tend to suggest that there's a gap that is to be filled by the Secretary. [00:27:02] Speaker 03: And here, if you... And what case would you rely on? [00:27:06] Speaker 03: You don't cite any case law in your briefs for that proposition. [00:27:10] Speaker 04: For the proposition of how much silence there needs... I apologize. [00:27:16] Speaker 03: Yes. [00:27:16] Speaker 03: What kind of silences actually create statutory gaps? [00:27:27] Speaker 04: I think that the cases speak in terms of gaps, and I'm not thinking in terms of trying to remember if there's any examples that I recall seeing that you can how big or small the gap must be, but I think that typically the language is where there is a gap, and here there is a gap. [00:27:50] Speaker 04: 5.1.1.2 would be superfluous and unnecessary if [00:27:56] Speaker 04: Part 5.304 is read as mandating a period in which benefits must be discontinued, that the minimum period of discontinue must also be the maximum. [00:28:08] Speaker 02: So, Council, can I get you to take just a look at your Reg 3.654? [00:28:14] Speaker 02: Part A doesn't just speak to disability benefits, it speaks to pension or retirement. [00:28:21] Speaker 02: And it's focused on the date of discontinuation, okay? [00:28:26] Speaker 02: You see that? [00:28:30] Speaker 02: Yes. [00:28:31] Speaker 02: Okay. [00:28:31] Speaker 02: So your reg focuses on the day of discontinuation of not just disability pay, but pension and retirement. [00:28:39] Speaker 02: But you all don't administer pension and retirement pay, do you? [00:28:46] Speaker 04: Your Honor, I apologize because this is not something that [00:28:51] Speaker 04: that I was focused on in the briefing, but because this is in Title 38, I think that there is some tension element to the VA. [00:29:07] Speaker 02: pertain to the recommencement of pension and retirement pay. [00:29:12] Speaker 02: I mean, I understood you to suggest to me that the concerns I had about reapplication were limited to disability compensation. [00:29:23] Speaker 02: I'm looking at your reg, which in part A says it speaks to pension compensation and retirement pay. [00:29:30] Speaker 02: And part B doesn't say anything about any of them, though the word disability appears once in B2, where it says disability will be evaluated on the basis of facts that related to the most recent period of active service, that kind of thing. [00:29:47] Speaker 02: It talks ever so briefly in two about disability [00:29:52] Speaker 02: But I guess what I'm wondering is, is it your view that 3.654B2 also applies to pension and retirement pay? [00:30:05] Speaker 04: Well, Your Honor, I want to clarify one thing. [00:30:09] Speaker 04: And I hope that I was careful to caveat my answers before that I had understood the questions to be about pensions. [00:30:20] Speaker 04: If with the courts, [00:30:22] Speaker 04: I'll just finish about pensions that were... Please complete your thought. [00:30:27] Speaker 04: Thank you. [00:30:29] Speaker 04: Thank you, Your Honor. [00:30:30] Speaker 04: I had understood the court's question before to be about pensions that were provided by a veteran's military service branch for their service. [00:30:40] Speaker 04: But I believe that in Title 38, when a pension is discussed, it is a VA-specific pension that is awarded when the VA determines... [00:30:50] Speaker 04: discussed in the regs at 38 CFR 3.3, that a disease or disorder determined by the VA to be of such a nature or extent as to justify a determination, the person suffering from that disease or disorder are permanently and totally disabled. [00:31:06] Speaker 04: So this seems to be a tension situation that's more akin to a TDIU, which I'm not sure in what circumstance someone who is totally and completely disabled would be able to go back on to active duties for this case. [00:31:20] Speaker 04: So it may be that while they're lumped together, it really doesn't have practical significance for a pension because someone who is totally and completely disabled is more likely than not unlikely to be able to return to active duty service. [00:31:38] Speaker 00: Thank you, Ms. [00:31:39] Speaker 00: Rose. [00:31:40] Speaker 00: Ms. [00:31:40] Speaker 00: Hines has three minutes for a bottle. [00:31:44] Speaker 01: Thank you very much. [00:31:45] Speaker 01: First, I'd like to address the concept of silence. [00:31:49] Speaker 01: And with respect to that, I'd point the court to Section 5110. [00:31:54] Speaker 01: Section 5110 establishes filing requirements and has one-year forfeiture provisions in other circumstances. [00:32:04] Speaker 01: When Congress intended to affect a forfeiture, Congress knew how to do it and did not do so here. [00:32:13] Speaker 01: If anything, Congress was not silent because it did so in other circumstances and specifically did not engraft a forfeiture provision on disabled veterans who returned to active service. [00:32:27] Speaker 01: With respect to a gap in the statute, our position is that there is no gap because the statute provides for a specific and limited period, any period of active service. [00:32:39] Speaker 01: But I did want to address [00:32:41] Speaker 01: the Secretary's ability to fill that gap if one exists. [00:32:45] Speaker 02: Ms. [00:32:46] Speaker 02: Hines, your most difficult argument you're just not even addressing, and that is, is there really [00:32:53] Speaker 02: Is the definition you want for period really not leaving open any gap as to when benefits recommence in light of 5112? [00:33:03] Speaker 02: Your definition for 5304, it seems to me the government is correct, would render 5112 entirely superfluous. [00:33:14] Speaker 01: I'm not sure about entirely superfluous. [00:33:17] Speaker 01: I think we would agree that it may be overlapping with 5304C, 5112 addresses when payments will stop, and 5304, the duration. [00:33:29] Speaker 01: And let me explain why that's okay. [00:33:32] Speaker 01: The Supreme Court in the Microsoft I4I decision looked at statutory interpretations and said unequivocally [00:33:40] Speaker 01: that there are situations, and it can be well accepted, that there are situations when statutory language can be overlapping. [00:33:49] Speaker 01: There, the court was looking at section 35 USC, section 282, the presumption of patent validity, and in looking at the clear and convincing evidence standard, determined that that was on the party asserting invalidity, even though the statute already said that. [00:34:08] Speaker 01: And what the Supreme Court said, and citing the Duncan case, which the government cites and which the VA, excuse me, the Veterans Court relied on, is that in some situations that's okay when no interpretation avoids excess language. [00:34:25] Speaker 01: And that's the situation we have here. [00:34:27] Speaker 01: 5112 establishes the stop date. [00:34:31] Speaker 01: 5304C defines any period and that those words must be given effect. [00:34:39] Speaker 01: The Secretary's interpretation does not give effect to any period of active service. [00:34:46] Speaker 01: Our view is that 5112 confirms that any period is the shortest period possible. [00:34:52] Speaker 01: The duplication of compensation is just for that period. [00:34:59] Speaker 01: In considering the Secretary's argument that Section 501 gives it the authority to fill a gap, Mr. Buffington argued that, and it doesn't appear the Secretary really disagrees, that the one-year forfeiture provision is irrelevant to the duplication of benefits. [00:35:20] Speaker 01: And in fact, on the Secretary's brief at page 24, the Secretary argues that our argument is [00:35:29] Speaker 01: Thank you. [00:35:32] Speaker 01: The Secretary argues that our point is nothing more than an attempt to inappropriately limit the broad discretion that Congress afforded VA to administer the Veterans Benefit Scheme. [00:35:46] Speaker 01: But the regulation the Secretary implements, they're supposed to be necessary and appropriate to carry out the laws. [00:35:52] Speaker 01: Here, this forfeiture provision in the Reg [00:35:55] Speaker 01: is not necessary and appropriate to avoid the duplication of benefits. [00:36:00] Speaker 01: That's the purpose. [00:36:02] Speaker 01: And for that reason, it creates an unnecessary and inappropriate impediment to the veteran who receives benefits. [00:36:10] Speaker 01: Thank you very much. [00:36:11] Speaker 00: Thank you, Ms. [00:36:12] Speaker 00: Hines. [00:36:12] Speaker 00: We appreciate both counsel and the cases submitted.