Harris v. Wilkie

Case: 19-2188 Document: 39 Page: 1 Filed: 06/12/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ARTHUR HARRIS, Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2019-2188 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-4653, Judge William S. Green- berg. ______________________

Decided: June 12, 2020 ______________________

KATHERINE A. HELM, Dechert LLP, New York, NY, for claimant-appellant. Also represented by DANIEL ROBERTS, Philadelphia, PA.

ERIN MURDOCK-PARK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent-appellee. Also represented by JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR., KELLY A. KRYSTYNIAK; CHRISTINA LYNN

Case: 19-2188 Document: 39 Page: 2 Filed: 06/12/2020 2 HARRIS v. WILKIE

GREGG, BRIAN D. GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washing- ton, DC. ______________________

Before DYK, WALLACH, and CHEN, Circuit Judges. PER CURIAM. Mr. Arthur L. Harris appeals a judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court affirmed the Board of Veter- ans’ Appeals (“Board”) decision that the Department of Veterans Affairs (“VA”) properly deducted the amount of Mr. Harris’s non-service-connected disability pension from his service-connected disability compensation. We affirm. BACKGROUND Mr. Harris began serving in the United States Navy on July 31, 1972. He was stationed at the U.S. Naval Station in San Francisco aboard the USS Midway Carrier deployed in the West Pacific Theater. Mr. Harris was discharged on September 10, 1973. On October 8, 1997, Mr. Harris filed with the VA (1) a claim for non-service-connected disability pension and (2) a claim for service-connected disability compensation based on traumas suffered during his service on the USS Midway. On October 23, 1998, the VA granted Mr. Harris a non-service-connected disability pension, effective Octo- ber 8, 1997. However, Mr. Harris’s claim for service-con- nected disability compensation remained unresolved for over 14 years due to a series of appeals and remands. On July 11, 2012, the VA granted Mr. Harris a service-con- nected disability compensation for “[p]ost traumatic stress disorder with major depressive disorder” at a rating of 70%, effective October 8, 1997. J.A. 979. On July 31, 2012, the VA sent Mr. Harris a decision letter, stating:

Case: 19-2188 Document: 39 Page: 3 Filed: 06/12/2020 HARRIS v. WILKIE 3

[Y]ou are entitled to both disability pension and service connected compensation . . . . Under VA law you can’t receive both benefits at the same time. We have granted service connected compen- sation as the greater benefit . . . . J.A. 949. The VA Regional Office calculated that Mr. Har- ris was entitled to $188,588.00 for the service-connected disability compensation for the time period from November 1997 to July 2012 and that he had already received $166,157.73 for the non-service-connected disability pen- sion. As a result, Mr. Harris received $22,430.27 for ser- vice-connected disability compensation. Mr. Harris submitted a Notice of Disagreement, challenging the de- duction, but the decision was affirmed by the VA Regional Office. Both the Board and the Veterans Court in turn af- firmed, the Veterans Court finding that “the already-paid [non-service-connected] pension benefits were properly de- ducted from [Mr. Harris’s] lump-sum service connection compensation” under 38 U.S.C. § 5304(a) and 38 C.F.R. § 3.700, which implements section 5304(a). J.A. 4. Mr. Harris appeals. We have jurisdiction pursuant to 38 U.S.C. § 7292(c). “Constitutional and statutory inter- pretations by the Veterans Court are reviewed de novo.” McGee v. Peake, 511 F.3d 1352, 1355 (Fed. Cir. 2008). DISCUSSION I Mr. Harris first argues that the statute permits con- current receipt of non-service-connected disability pension and service-connected disability compensation. We disa- gree. Section 5304 of Title 38 generally prescribes a “[p]rohi- bition against duplication of benefits”: “[N]ot more than one award of pension, compensation[] . . . shall be made

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concurrently to any person based on such person’s own ser- vice.” 38 U.S.C. § 5304(a)(1). The statute’s plain language prohibits receipt of both pension and compensation bene- fits for the same period. We have confirmed that sec- tion 5304(a)(1) generally prohibits payment of two different benefits for “concurrent periods.” McCord v. United States, 943 F.3d 1354, 1358 (Fed. Cir. 2019); see also Howard v. United States, 354 F.3d 1358, 1360–62 (Fed. Cir. 2004); Absher v. United States, 805 F.2d 1025, 1025–26 (Fed. Cir. 1986). We conclude that the Veterans Court correctly deter- mined that section 5304 prohibited Mr. Harris from receiv- ing both non-service-connected disability pension and service-connected disability compensation. II Mr. Harris also argues that the concurrent receipt pro- hibition in section 5304 violated his equal protection rights under the Fifth Amendment because other federal employ- ees did not face a similar restriction. Mr. Harris’s chal- lenge is reviewed under the rational basis standard. Howard, 354 F.3d at 1361. Applying that standard, we have held that section 5304 does not violate equal protec- tion. Id. at 1361–62. We have explained: [T]here is a rational relationship between the con- current receipt prohibition and the legitimate gov- ernmental interest of fiscal restraint, and . . . in light of the unique status of military retirees with respect to the time of service necessary for retire- ment and the benefits extended to military retir- ees, it was not irrational for Congress to treat military retirees differently from civilian retirees with respect to the cumulation of benefits from dif- ferent sources. Id. at 1361. In Howard, this court also rejected the argu- ment that Congress’s actions to permit certain exceptions

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to the prohibition showed Congress’s disapproval of the general prohibition against concurrent receipt of benefits. Id. We concluded that “Congress’s decision to modify the prohibition does not indicate that the pre-amendment stat- ute was irrational.” Id. See also Absher, 805 F.2d at 1027 (“The balance [Congress] has thus struck is not only ra- tional, it also bears a demonstrably fair and substantial re- lation to legitimate legislative objectives and does so without denying equal protection.”). Based on the precedent, we reject Mr. Harris’s argu- ment that section 5304 violated his equal protection rights under the Fifth Amendment. III Mr. Harris asserts that the VA denied his due process rights under the Fifth Amendment when it made the de- duction without notice and opportunity for a hearing. For support, he relies on Mathews v. Eldridge, 424 U.S. 319 (1976). We again disagree. In Mathews, the Supreme Court held that the plaintiff was not deprived of due process when his Social Security disability benefits were terminated without a pre-termina- tion evidentiary hearing. 424 U.S. at 323–24, 349. Simi- larly, we conclude that the VA’s decision to subtract the amount of non-service-connected disability pension (that Mr. Harris already received) from the service-connected disability compensation payment without a pre-termina- tion evidentiary hearing comported with due process. AFFIRMED COSTS No costs.