Wright v. Gober

HOLDAWAY, Judge: The appellant, Thurgood Wright, appeals an October 31, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) that denied him entitlement to an effective date — 345 — earlier than November 15, 1990, for service connection and a 10% disability rating for chronic epididymitis and chronic orchialgia. The appellant has not challenged the BVA’s denial of an effective date prior to February 17,1994, for a 30% disability rating for those same conditions. The Court considers the appellant to have abandoned that issue on appeal, and the Court will not review it. See Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993). In his initial brief, the appellant appeals the BVA’s decision to deny him an earlier effective date for his 10% disability rating on the basis that the provisions of 38 U.S.C. § 5110(a) and (b)(1) violate the equal protection component of the Fifth Amendment Due Process Clause. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the Board. I. FACTS The appellant served on active duty in the United States Army from August 1954 to October 1954. During service he injured himself while lifting boxes and was diagnosed with epididymitis. Epididymitis is “an inflammation of the epididymis,” which is “the elongated cordlike structure along the posterior border of the testis.” Dorland’s Illustrated Medical Dictionary 566 (28th ed.1988) [hereinafter Dorland’s]. Before he completed basic training, he was discharged for poor eyesight. In October 1954, the appellant filed a claim with a Veterans’ Administration (now Department of Veterans Affairs) regional office (VARO) for, inter aha, a “[sjwollen lower stomach.” The VARO denied his claim in November 1954. In April 1955, the BVA denied his claim for residuals of epididymitis. On November 15, 1990, the appellant filed an application seeking service connection for, inter aha, a prostate condition. He was diagnosed with a right-side inguinal hernia in December 1990. In March 1992, the VARO interpreted the appellant’s appheation as one to reopen his claim for epididymitis and granted him service connection, with a 10% disability rating, effective November 15, 1990, the day he filed his claim to reopen. The appellant timely appealed the VARO’s decision to the Board. At a December 1992 hearing before the BVA, the appellant, through his attorney, argued that the appellant’s effective' date should relate back to 1954 when his original application was filed, that the VARO in 1955 committed clear and unmistakable error, and that the effective date provisions found at 38 U.S.C. § 5110(a) and (b)(1) violate the equal protection component of the Fifth Amendment Due Process Clause. In March 1993, the BVA remanded the appellant’s claim to the VARO for further evidentiary development and readjudication. In May 1994, the VARO increased the appellant’s disability rating to 30% for chronic epididymitis and chronic orchialgia, effective February 17, 1994, but denied, inter alia, the appellant’s claim for an earlier effective date prior to November 15, 1990, for the 10% disability rating. Orchialgia is “pain in a testis.” Dorland’s at 1188. On October 31, 1994, the BVA denied, inter alia, the appellant’s claim for an earlier effective date for service connection for the 10% disability rating for chronic right epididymitis and chronic orchialgia. The BVA did not discuss the appellant’s previously raised constitutional claims. In the appellant’s brief to this Court, he expressly stated that he was appealing the BVA’s decision that he was not entitled to an effective date prior to November 15, 1990, “solely” on the basis that the provisions of 38 U.S.C. § 5110(a) and (b)(1) violate the equal protection component of the Fifth Amendment Due Process Clause. On April 24, 1996, the Court, by single-judge order, directed the parties to file supplemental memoranda addressing whether the constitutional issue was before the Board in October 1994, and, assuming it was, whether the Court should remand the constitutional issue to the Board. In the parties’ supplemental memoranda, both parties agreed that the constitutional issue was properly before the Board, that remand to the BVA was not necessary, and that this Court should decide the constitutional issue in the first instance. On June 18, 1996, the Court, by single-judge order, directed the parties to file sup — 346 — plemental memoranda discussing, inter alia, the following question raised by the Court sua sponte: (1) Does 38 U.S.C. § 5110(b)(1) presently apply to this appellant because he filed his original claim within the time stated in such subsection, and the language “and such award is based upon such application” does not immediately follow the word “release” in such subsection, and 38 U.S.C. § 5110(a) states “[u]nless specifically provided otherwise”[?] The June 18, 1996, order was probing the question of whether the appellant’s constitutional concerns could be resolved on non-constitutional grounds, i.e., an expansive application of section 5110(b)(1). (“It is ‘[a] fundamental and long-standing principle of judicial restraint ... that courts avoid reaching constitutional questions in advance of the necessity of deciding them.’” Bucklinger, 5 Vet.App. at 441 (quoting Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 1323, 99 L.Ed.2d 534 (1988))). The appellant, in response, argues that “a veteran can file an original claim within a year of discharge or release but be denied an award, then refile after said one year and receive an award effective the day after the date of discharge or release.” The Secretary, on the other hand, argues that section 5110(b)(1) applies only to awards of disability compensation granted in connection with a claim filed within one year after discharge. II. ANALYSIS A. Plain Meaning of 38 U.S.C. § 5110(b)(1) This case involves the interpretation of 38 U.S.C. § 5110(a) and (b)(1), which provide as follows: (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency or indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. (b)(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge of release if application therefor is received within one year from such date of discharge or release. (Emphasis added.) “The starting point in interpreting a statute is its language, for ‘if the intent of Congress is clear, that is the end of the matter.’” Lewis v. Brown, 8 Vet.App. 287, 290 (1995) (quoting Gardner v. Brown, 5 F.3d 1456, 1458 (Fed.Cir.1993), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994)). “Determining a statute’s plain meaning requires examining the specific language at issue and the overall structure of the statute.” Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) (citing Bethesda Hospital Ass’n. v. Bowen, 485 U.S. 399, 403-05, 108 S.Ct. 1255, 1258-59, 99 L.Ed.2d 460 (1988), aff'd 5 F.3d 1456 (Fed.Cir.1993), aff'd 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994)). Our review of the specific language in subsection (b)(1) and its context in the statute reveals that a veteran must file within one year after separation an application that results in an award of disability compensation in order to obtain retroactive disability compensation back to the date of separation. The key to understanding subsection (b)(1) is the contextual meaning of the phrases “an award of disability compensation” and “application therefor.” Section 5110 sets out the standards for determining the effective dates for various awards of VA benefits. The provisions of section 5110 apply only after the awarding of benefits, and the language of section 5110 presupposes such an award. Therefore, the phrase “an award of disability compensation” must refer to the actual award that is being assigned an effective date under section 5110(b)(1). Under subsection (b)(1), the phrase “application therefor” means the application which resulted in the award of disability compensation that is to be assigned an effective date under section 5110. Webster’s New World, Dictionary defines the word “therefor” to mean “for this, for that, for it.” Webster’s New World Dictionary 1388 (3d College — 347 — ed.1988). The words “this,” “that,” and “it” mean the thing previously mentioned, understood, or under discussion. See id. at 718, 1385, 1392 (3d College ed.1988). The thing previously stated or under discussion, and from which “therefor” would derive its meaning, is “an award of disability compensation.” In accordance with the contextual meaning of “an award of disability compensation,” the phrase “application therefor” means the application that resulted in the award of disability compensation currently under review for an effective date. The appellant argues that it is possible that the phrase “if application therefor is received within one year from such date of discharge or release” could mean that the filing of an application for a particular disability within one year after separation from service preserves the date-of-separation effective date even when service connection is denied under that application and then granted on the basis of a much later application to reopen for that same disability. At most, this argument is based on a highly speculative suggestion that there is ambiguity in the language of section 5110(b)(1). But the suggestion of ambiguity is belied by the plain meaning of the statute. Nothing in the statute indicates that an effective date can be set based upon an application that resulted in a final disallowance of the claim. Also, nothing in the limited legislative history of section 5110(b)(1) suggests such an intent on the part of Congress, and this Court will not impute such an intent to Congress. In any event, “[a]mbiguity is a creature not of definitional possibilities but of statutory context.” Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 555, 130 L.Ed.2d 462 (1994). Read in the context of the full section 5110, subsection (b)(1) applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran’s separation. In the matter before the Court, the appellant filed an application for disability compensation within one year after his separation, but it was denied. His subsequent application for disability compensation, filed 35 years later, was granted. Subsection (b)(1) does not apply to his award of disability compensation because the award is based on an application filed far more than one year after his discharge from military service. Rather, the effective date is determined under subsection (a) of section 5110. That effective date, as the Board found under the facts of this case, is November 15, 1990, the date the appellant filed his application for service connection for prostate cancer. B. Equal Protection The appellant asserts that the provisions of 38 U.S.C. § 5110(a) and (b)(1) violate the equal protection component of the Fifth Amendment Due Process Clause because they preclude him from receiving retroactive disability compensation, as explained in Part H.A., whereas under section 5110(b)(1), veterans who file a successful application for disability compensation within one year after separation are granted retroactive disability compensation. The Board did not discuss this issue in the decision presently on appeal to this Court. The Court may decide questions of constitutional law in the first instance where there is no need for additional factual development. See Giancaterino v. Brown, 7 Vet.App. 555, 557 (1995) (holding that when “[t]he facts are not in dispute, and the only issue is purely a constitutional claim, ... this Court is empowered to make determinations regarding constitutional claims” in the first instance); see also 38 U.S.C. §§ 7252, 7261(a)(1), (a)(3); Saunders v. Brown, 4 Vet.App. 320, 326 (1993) (explaining that administrative agencies like the BVA are “ ‘entitled to pass on constitutional claims but they are not required to do so.’” (quoting Plaquemines Port v. Federal Maritime Comm’n, 838 F.2d 536, 544 (D.C.Cir.1988))); Suttmann v. Brown, 5 Vet.App. 127, 139 (1993) (explaining that because the Court’s review is limited to the record of proceedings before the Secretary and the Board, generally constitutional claims must be raised in the first — 348 — instance before the VARO or the BVA). The appellant raised the equal protection issue to the Board during a hearing before a single Board member in December 1992. The Board did not discuss the constitutional claim in its 1993 remand order or in its subsequent decision in 1994. The appellant’s claim is a question of pure constitutional law and the facts in this case are not in dispute. Therefore, the Court may review the appellant’s constitutional claim for the first time on appeal. “In determining whether there has been a violation of due process, the Supreme Court applies the same standard to the federal government that it applies to the states under the Equal Protection Clause of the Fourteenth Amendment.” Robinson v. Brown, 9 Vet.App. 398, 401 (1996); Suttmann, supra; Saunders, 4 Vet.App. at 325; see also Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). A statute need only meet a rational basis test unless a suspect classification or fundamental right is involved. See Robinson, supra. Social and economic legislation carries a presumption of constitutionality that can be overcome only by a clear showing of arbitrariness and irrationality. See id. For the appellant to demonstrate a constitutional violation, he must show that the effective date statute in question “does not bear any rational relationship to a legitimate government interest.” Id. The appellant claims that the statute is unconstitutional because it is not rationally related to “the purpose of compensating needy veterans.” The appellant does not understand the height of the standard he must meet. For the statute to be constitutional, it need only have any legitimate purpose and “will not be set aside if any state of facts reasonably may be conceived to justify it.” Robinson, supra (quoting McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)). In fact, the Court is not limited to the expressions of congressional intent found in the language of the statute or its underlying legislative history, but may itself hypothesize legislative purposes. See McGowan, supra. Under 38 U.S.C. § 5110(b)(1), Congress decided that veterans awarded disability compensation based on a claim filed within one year after separation should receive retroactive benefits. This provision appears to give veterans who may be disabled at the time of discharge some breathing room to file a claim without losing any possible benefits. Congress could have several legitimate reasons for not extending this benefit for a period greater than one year. The most obvious reasons would be to ease the financial burden on the nation and the administrative burden on the Secretary. It is reasonable to believe that evidentiary findings will become more difficult after one year. For example, not only does a rating board establish service connection, but it must rate the degree of a veteran’s disability. It is logical to presume that a veteran’s degree of disability within one year after discharge is the same as at the time of discharge. Applying the same presumption twenty or thirty years thereafter would not be reasonable. The appellant has failed to overcome the presumption of constitutionality afforded section 5110(a) and (b)(1) under the rational basis test. III. CONCLUSION After consideration of the pleadings and the oral arguments of the parties and a review of the record, the Court holds that the provisions of 38 U.S.C. § 5110(a) and (b)(1) do not violate the principles of equal protection under the Fifth Amendment Due Process Clause. The October 31, 1994, decision of the Board is AFFIRMED.