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        NOTE: This disposition is nonprecedential.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:
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 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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 4                                           HARRIS   v. WILKIE



 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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 HARRIS   v. WILKIE                                           5



 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.
