                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                          July 7, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
SARAH LYNN HOLBROOKS,
Executor of The Estate of
Howard Holbrooks, Deceased,

             Plaintiff - Appellant,                       No. 13-3302
                                                 (D.C. No. 6:11-CV-01383-JTM)
v.                                                          (D. Kan.)

SUN LIFE ASSURANCE
COMPANY OF CANADA,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before McHUGH, EBEL, and O’BRIEN, Circuit Judges.



      This is an appeal from the district court’s order affirming Sun Life Assurance

Company of Canada’s (“Sun Life”) decision to offset Howard Holbrooks’s monthly

disability payments from the Veteran’s Administration (“VA”) against monthly



*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
benefits owed to him under a disability policy issued by Sun Life. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                     Background

      Dr. Holbrooks served for six years as a physician in the United States Army.

Upon his honorable discharge in July 2003, Dr. Holbrooks worked in the private

sector and was insured under a group long-term disability policy (“the Policy”)

issued by Sun Life as part of an employer-sponsored benefits plan governed by

the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§§ 1001-1461.

      In 2009, Dr. Holbrooks was diagnosed with Amyotrophic Lateral Sclerosis

(“ALS”). Under the Policy he was entitled to receive monthly disability benefits of

sixty percent of his total monthly earnings up to a maximum of $15,000 per month.

These benefits would be offset by any “Other Income Benefits” Dr. Holbrooks was

entitled to receive as a result of the same disability. The Policy defined “Other

Income Benefits” as including, among other things, any benefits Dr. Holbrooks

received pursuant to “Workers’ Compensation Law” or any “Compulsory Benefit Act

or Law . . . or any other act or law of like intent.” Aplt. App. Vol. I at A59. Pursuant

to VA regulation 38 C.F.R. § 3.318, Dr. Holbrooks’s diagnosis with ALS also

entitled him to a monthly disability benefit from the VA.

      Dr. Holbrooks made a claim for disability benefits with Sun Life. In response,

Sun Life explained that the VA benefits were “Other Income Benefit[s] as


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defined . . . under a ‘Compulsory Benefit Act or Law; and/or any other act or law of

like intent,’” and would therefore be offset against monthly benefits under the Policy.

Aplt. App. Vol. II at A215. Sun Life also notified Dr. Holbrooks that he could

request “a review of the denial within 180 days[,] . . . [and] submit written comments,

documents, records or other information relating to this matter.” Id. at A217.

      Dr. Holbrooks initiated an administrative appeal of Sun Life’s decision, which

he characterized as being based solely on the VA benefit falling within the “[a]ny

other act or law of like intent” portion of the Policy’s definition of “Other Income

Benefit.” He argued offset was improper because VA benefits were not specifically

mentioned in the Policy’s definition of “Other Income Benefits,” and requested that,

“Sun Life [ ] cease reducing his monthly disability benefit by $3,005.00 and [ ] return

all monies previously offset without the need [for] litigat[ion].” Id. at A296.

Dr. Holbrooks did not challenge Sun Life’s alternate rationale that the VA benefit

should be offset as a “Compulsory Benefit Act or Law.” Id. at A294.

      Sun Life denied the appeal on the ground that the VA benefits were received

under a law similar to “Workers’ Compensation Law.” Id. Vol. I at A90. Sun Life

also acknowledged that Dr. Holbrooks had exhausted his administrative remedies and

that he “may have the right to bring a civil action under [ERISA].” Id. at A92.




                                          -3-
      Dr. Holbrooks filed suit and the parties filed cross motions for summary

judgment.1 Sun Life argued the VA benefits were “Other Income Benefits” because

Dr. Holbrooks was entitled to them both as a result of a “Compulsory Benefit Act or

Law” or a law similar to “Workers’ Compensation Law.” Dr. Holbrooks responded

that Sun Life was precluded from “argu[ing] that [his] VA Benefits arise under a

‘compulsory benefit act or law’ . . . [because] Sun Life did not raise this as a basis for

denying Dr. Holbrooks’ claim until now.” Id. Vol. II at A248-49 (emphasis added).

Substantively, Dr. Holbrooks reasserted his argument that the offset was not

authorized because VA benefits were not specifically mentioned as “Other Income

Benefits” in the Policy and further claimed the VA benefits were not similar to those

received under “Workers’ Compensation Law.”

      The district court determined Sun Life had “explicitly invoked the

‘Compulsory Benefit Act or Law’ language in its . . . letter denying Dr. Holbrooks’

claim,” id. at A340, and the VA benefits were properly offset as “Other Income

Benefits” under both Policy provisions cited by Sun Life. This appeal followed.

                                       Discussion

      The parties agree we should apply a de novo standard of review. “De novo

review means that we make an independent determination of the issues.” Heggy v.

Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991). Summary judgment is appropriate


1
      Dr. Holbrooks died while his suit was pending and his wife and executor,
Sarah Lynn Holbrooks, was substituted as plaintiff.


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where “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       We address first Dr. Holbrooks’s argument that Sun Life is precluded from

arguing he was eligible for VA benefits pursuant to a “Compulsory Law or Benefit.”

ERISA mandates that the plan participant receive “adequate notice . . . setting forth

the specific reasons for [a] denial [of benefits and be] afford[ed] a reasonable

opportunity . . . for a full and fair review . . . of the decision.” 29 U.S.C. § 1133.

“Thus, the federal courts will consider only those rationales that were specifically

articulated in the administrative record as the basis for denying a claim.” Spradley v.

Owens-Ill. Hourly Emps. Welfare Benefit Plan, 686 F.3d 1135, 1140 (10th Cir. 2012)

(internal quotation marks omitted). In the denial letter, Sun Life explicitly stated

Dr. Holbrooks’s VA benefits were considered an “Other Income Benefit” for two

reasons: as a “‘Compulsory Benefit Act or Law; and/or any other act or law of like

intent.’” Aplt. App. Vol. II at A215. This is not a situation where Sun Life “treat[ed]

the administrative process as a trial run and offer[ed] a post hoc rationale in district

court.” Spradley, 686 F.3d at 1040-41 (internal quotation marks omitted). We

therefore reject Dr. Holbrooks’s argument that Sun Life did not comply with the

procedural requirements of ERISA.

       We turn now to the merits. First, Dr. Holbrooks argues it was error to consider

his VA disability benefits as “Other Income Benefits” because the Policy did not

specifically list them as such. We reject this argument because Dr. Holbrooks has


                                           -5-
not supported it with any legal authority. See Phillips v. Calhoun, 956 F.2d 949, 953

(10th Cir. 1992) (holding that this court will not consider an argument that “has not

been even minimally supported by legal argument or authority”).

      Next, Dr. Holbrooks argues that the term “Compulsory Benefit Act or Law” is

ambiguous and the ambiguity should be resolved in his favor to exclude the VA

benefits as “Other Income Benefits.” We disagree.

      “This Court has held that federal common law, governed by principles of trust

law, governs the interpretation of an ERISA plan.” Foster v. PPG Indus., Inc.,

693 F.3d 1226, 1237 (10th Cir. 2012) (internal quotation marks omitted). “[W]e

examine the plan documents as a whole and, if unambiguous, construe them as a

matter of law. Whether . . . [a] term is ambiguous depends on the common and

ordinary meaning as a reasonable person in the position of the plan participant would

have understood the words to mean.” Id. (citations omitted) (internal quotation

marks omitted).

      There is nothing ambiguous about the term “Compulsory Benefit Act or Law.”

“Compulsory” is defined as “required by a law or rule [or] having the power of

forcing someone to do something.” “Compulsory” Definition, Merriam-

Webster.com, http://www.merriam-webster.com/dictionary/compulsory (last visited

June 26, 2014). “Veteran’s disability benefits are nondiscretionary, statutorily

mandated benefits, [which] [a] veteran is entitled to . . . upon a showing that he meets

the eligibility requirements set forth in the governing statutes and regulations.”


                                          -6-
Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). Further, VA regulations

establish a presumption of service connection for ALS for any veteran who develops

ALS any time after separation from military service. See 38 C.F.R. § 3.318(a)

(“[T]he development of [ALS] manifested at any time after discharge or release from

active military . . . service is sufficient to establish service connection for that

disease”). Because the VA was required by law to pay Dr. Holbrooks’s disability

benefits, Sun Life was entitled to offset those benefits under the terms of the Policy.2

       The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Carolyn B. McHugh
                                                  Circuit Judge




2
       Because we affirm the district court’s conclusion that the VA benefits are a
“Compulsory Benefit Act or Law,” we do not reach Sun Life’s alternate argument
that they were received under a law similar to “Workers’ Compensation Law.”


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