          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                          NO . 08-0932

                              HOWARD E. CHANDLER, APPELLANT ,

                                                v.

                                     ERIC K. SHINSEKI,
                         SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                        On Appeal from the Board of Veterans' Appeals



(Argued January 13, 2010                                            Decided August 12, 2010     )



       Thomas E. Riley, Chadbourne and Parke LLP, of New York, N.Y., with whom Margaret
Bartley, National Veterans Legal Services Program, of Washington, D.C., was on the brief for the
appellant.

         Thomas E. Sullivan, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; Gayle E. Strommen, Deputy Assistant General Counsel, were on the
brief, all of Washington, D.C., for the appellee.

     Before KASOLD, Chief Judge, and GREENE, HAGEL, MOORMAN, LANCE, DAVIS, and
SCHOELEN, Judges.

    LANCE, Judge, filed the opinion of the Court. DAVIS, Judge, filed a concurring opinion.
KASOLD, Chief Judge, filed a dissenting opinion in which GREENE, Judge, joined.

       LANCE, Judge: U.S. Navy veteran Howard E. Chandler appeals through counsel from a
March 7, 2008, Board of Veterans' Appeals (Board) decision that denied special monthly pension
by reason of being in need of regular aid and attendance of another person, or on account of being
housebound. This Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following
reasons, the Court will reverse the Board's March 2008 decision.
                                        I. BACKGROUND
                                       A. The Present Claim
       Mr. Chandler served on active duty in the U.S. Navy from 1952 to 1956, during the Korean
conflict and, thus, he is a wartime veteran. He has a combined disability rating of 80%, including
a 60% rating for prostate cancer. At age 57, VA granted Mr. Chandler a non-service-connected
disability pension because his disabilities prevented him from maintaining employment and rendered
him permanently and totally disabled. VA granted that pension pursuant to 38 U.S.C. § 1521(a).
       At age 71, Mr. Chandler also filed a claim for a special monthly pension under
section 1521(e). Mr. Chandler reasoned that 38 U.S.C. § 1513(a) eliminated the need to prove that
he has a disability rated as permanent and total now that he is over the age of 65, and he meets the
remaining requirements of § 1521(e). VA denied Mr. Chandler's claim. The Secretary asserted that
section 1513 was inapplicable to Mr. Chandler's circumstances per VA's interpretation of this Court's
precedent in Hartness v. Nicholson, 20 Vet.App. 216 (2006). On that basis, the Board denied Mr.
Chandler's appeal.
                                         B. Issue on Appeal
       The issue on appeal is whether Mr. Chandler, who is currently receiving a non-service
connected disability pension, qualifies for an increased special monthly pension now that he is over
the age of 65. This case involves the interplay of two statutes, 38 U.S.C. §§ 1513 and 1521, and the
effect of this Court's precedent in Hartness. As discussed above, prior to turning 65, the appellant
qualified for a non-service-connected pension pursuant to section 1521(a) based upon disability.
Under this Court's decision in Hartness, now that the appellant is over 65, he would appear to qualify
for a special monthly pension at a higher monthly rate. However, the Secretary argues that section
1513(b) should be read to preclude him from receiving the higher special monthly pension because,
although he is permanently and totally disabled, he does not have a single disability that is rated
permanent and total. In other words, the Secretary's position is that veterans who are over 65, totally
disabled, and have started receiving pension prior to turning 65 are to receive a lesser pension than
those who are over 65 but not totally disabled when they begin receiving pension. The Court does
not adopt this construction of the statute because it would lead to this absurd result, which clearly
could not have been the intent of Congress. The dissent takes a position, not advocated by the


                                                  2
Secretary, that we should overrule Hartness. For the reasons stated below, the Court concludes that
principles of stare decisis counsel against overruling precedent that Congress has allowed to stand
and the Secretary has relied on for some time.
                                             C. Statutes
       Section 1521 of title 38, U.S. Code, establishes a disability pension for wartime veterans who
are totally and permanently disabled, even if the disabilities are not service connected, and regardless
of age. This type of pension is generally referred to as a non-service-connected disability pension,
and the general provision is contained in 38 U.S.C. § 1521(a), which states:
     The Secretary shall pay to each veteran of a period of war who meets the service
     requirements of this section [service for 90 days or more during a period of war] and who
     is permanently and totally disabled from non-service-connected disability not the result
     of the veteran's willful misconduct, pension at the rate prescribed by this section.

(Emphasis added).
       The statute then goes on to list in the subsections that follow the amounts that must be paid
based on the circumstances of the claimant. The basic monthly payment rates for unmarried and
married veterans are in subsection (b) and (c) respectively. The highest monthly pension rate is
provided under subsection (d) to veterans "in need of regular aid and attendance." Subsection (e)
provides an intermediate pension rate for veterans that are "permanently housebound," but not in
need of regular aid and attendance. Specifically, this states:
       If the veteran has a disability rated as permanent and total and (1) has additional disability
       or disabilities independently ratable at 60 per centum or more, or (2) by reason of disability
       or disabilities, is permanently housebound but does not qualify for pension at the aid and
       attendance rate provided by subsection (d) of this section, the annual rate of pension payable
       to the veteran under subsection (b) [unmarried and no children] of this section shall be
       $4,340.
"A disability rated as permanent and total" is defined as a single disability rated at 100%. See
38 C.F.R. § 3.351(d) (2010). A veteran who is "permanently and totally disabled" is defined as a
veteran who is
       (1) A patient in a nursing home for long-term care because of a disability.

       (2) Disabled, as determined by the Commissioner of Social Security for purposes of any
       benefits administered by the Commissioner.


                                                   3
        (3) Unemployable as a result of disability reasonably certain to continue throughout the life
        of the person.

        (4) Suffering from–

                  (A) any disability which is sufficient to render it impossible for the average person
                  to follow a substantially gainful occupation, but only if it is reasonably certain that
                  such disability will continue throughout the life of the person; or

                  (B) any disease or disorder determined by the Secretary to be of such a nature or
                  extent as to justify a determination that persons suffering therefrom are permanently
                  and totally disabled.
38 U.S.C. § 1502(a).
        Section 1513 of title 38, U.S. Code, extends the above pension benefits of section 1521 to
wartime veterans who are not permanently and totally disabled, but who are age 65 or older. This
type of pension is generally referred to as a service pension. The general provision is contained in
38 U.S.C. § 1513(a), which states:
        The Secretary shall pay to each veteran of a period of war who is 65 years of age or older and
        who meets the service requirements . . . pension at the rates prescribed by section 1521 of
        this title and under the conditions (other than permanent and total disability requirement)
        applicable to pension paid under that section.
(emphasis added).
        Section 1513(b), however, also provides: "If a veteran is eligible for pension under both this
section and section 1521 of this title, pension shall be paid to the veteran only under section 1521
of this title."
                                              D. Hartness
        In Hartness, a wartime veteran sought a special monthly pension under section 1521(e)
because he was over 65 years of age and permanently housebound, but he did not have a disability
rated as permanent and total, i.e., a 100% disability rating. 20 Vet.App. at 217. The Board denied
the claim because Mr. Hartness did not have at least one disability rated as permanent and total, per
section 1521(e). 20 Vet.App. at 218. The specific question this Court confronted in Hartness was
whether section 1513 removed the requirement that a veteran age 65 or older have both a total and
permanent disability as well as the additional disabling conditions set forth in section 1521(e) to
qualify for the pension amount set in section 1521(e). This Court determined that if a veteran is 65

                                                    4
years of age or older and conforms to the service requirements of section 1521, the requirement that
he or she be permanently and totally disabled or have a disability rated as permanent and total is
excluded (i.e., "the section 1513(a) exception"), or put another way, the veteran is, in effect,
permanently and totally disabled as a result of his age. In reaching this conclusion, the Court took
into account the legislative history of the statutes at issue. The statutory history was ambiguous and
sparse, however. The Court nevertheless determined this interpretation was consistent with the
statutes.
        The Secretary appealed the Court's decision to the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit). However, before briefs were filed, on November 14, 2006, the Secretary
filed a motion to voluntarily dismiss his appeal with the consent of opposing counsel. That motion
was granted.
                                 E. VA's interpretation of Hartness
        On December 22, 2006, VA Fast Letter 06-28 purported to apply the Hartness holding to
various types of claims that an adjudicator may encounter. For a claim for a pension received from
a veteran age 65 or older who is already receiving a non-service-connected disability pension under
section 1521, it directs adjudicators not to apply the section 1513(a) exception. This directive to
regional office adjudicators is conveyed in a single sentence that contains no explanation as to the
reasoning behind it. In essence, it states that the Hartness holding, that wartime veterans age 65 or
older are not required to have a disability rated as permanent and total in order to qualify for a
pension under section 1521(e), does not apply to veterans who were granted non-service-connected
pension under section 1521(a) prior to their 65th birthday and, therefore, are already receiving a non-
service-connected disability pension. Those veterans are required, per the Fast Letter, to have, inter
alia, a single disability rated at 100% to qualify for a pension under section 1521(e) even when they
are age 65 or older. In other words, veterans over the age of 65 who are totally disabled under
section 1521(a) are treated less generously than similar veterans who are not totally disabled.




                                                  5
                                           II. ANALYSIS
                                            A. Arguments
       Mr. Chandler argues that he is entitled, per this Court's holding in Hartness, to a special
monthly pension under section 1521(e) because he meets the section 1513(a) age requirement and
meets all the requirements of section 1521(e) other than having a single disability rated as permanent
and total. He relies on the Hartness holding for the contention that he is not required to have a single
disability rated as permanent and total.
       Mr. Chandler asserts that the Board failed to properly apply the Hartness decision to his
claim. He argues that Hartness clearly establishes that section 1513 entitles veterans age 65 or older
without a disability rated as permanent and total to special monthly pension benefits under section
1521(e) if the veteran meets all the remaining requirements regardless whether he or she is already
receiving a non-service-connected disability pension.
       The Secretary argues that Mr. Chandler is not entitled to the benefit of section 1513. He
argues that a plain reading of section 1513(b) provides that if a veteran is eligible for pension under
both sections 1513 and 1521, then VA shall only pay pension benefits under section 1521. Here, Mr.
Chandler was already receiving a pension under section 1521, so he cannot avail himself of section
1513 as well. He distinguishes Hartness by stating that, in Hartness, the appellant was not already
receiving a non-service-connected disability pension when he applied for service pension benefits
under section 1513. The Secretary asserts that certain VA pension benefits, to include those under
section 1521(e), are intended only for veterans who are significantly disabled, not for veterans like
Mr. Chandler who do not, inter alia, have a single disability rated at 100%.
                                             B. Analysis
       "[A] functioning system of laws must give primacy to the plain language of authorities, not
the Secretary's litigation position. Without standard word meanings and rules of construction,
neither Congress nor the Secretary can know how to write authorities in a way that conveys their
intent and no practitioner or — more importantly — veteran can rely on a statute or regulation to
mean what it appears to say." Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006). Even if the
Court were to agree with the Secretary — and it does not — that the plain meaning of the language
of section 1513(b) means that if a veteran is eligible for pension under both sections 1513 and 1521,


                                                   6
then VA shall only pay pension benefits under section 1521, this would lead to an absurd result that
would be patently inconsistent with the intent of the law. See McBurney v. Shinseki, 23 Vet.App.
136, 141 (2009); Ramsey v. Nicholson, 20 Vet.App. 16, 30 (2006) ("[If] 'it is clear that . . . the literal
import of the [statutory] text . . . is inconsistent with the legislative meaning or intent, or such
interpretation leads to absurd results,' the Court will not reach that result.").
        In this case, the Secretary's reading of 38 U.S.C. § 1513(b) would result in some totally
disabled veterans over the age of 65 receiving a lesser pension than similar veterans who were not
totally disabled. The idea that a group of totally disabled veterans would be treated less generously
than an otherwise similar group of veterans who were not totally disabled is very difficult to
reconcile with the purpose of title 38. In fact, it is not clear what rational basis would support this
classification system. See Reeves v. West, 11 Vet.App. 255 (1998). In this regard, the Court notes
that the Secretary's brief relies on the plain language of the statute rather than arguing that it is
ambiguous and that the Court should defer to his interpretation. Secretary's Brief (Br.) at 8-11.
Indeed, the only potential policy justification for the precise phrasing of section 1513(b) offered by
the Secretary is a "posit" that perhaps Congress intended that section 1513 need not provide "extra
protection" for older veterans who were not being "unjustifiably" denied pensions under 1521.
Secretary's Br. at 11. However, the Secretary's brief makes this assertion in a single sentence that
fails to explain why Congress would have intended the troubling result caused by the language of
1513(b).
        Contrary to the Secretary's assertion, ruling for the appellant would not render section
1513(b) "meaningless." Secretary's Br. at 9. Even under the appellant's interpretation, section
1513(b) precludes those veterans who are eligible under both 1513 and 1521 (such as the appellant
here) from collecting two pensions at the same time. There is no dispute here that the appellant's
dual eligibility does not entitle him to be paid twice. Rather, the only question is whether he can be
paid a single pension at the higher rate described in section 1521(e) rather than the lower, basic rate.
        If the Court were to conclude that the scenario presented in this case demonstrates that
Hartness was incorrectly decided, then the Court could agree with the dissent to overrule that case
and conclude that the Board decision should be affirmed because Mr. Chandler does not meet the



                                                    7
criteria for a higher pension under either section 1513 or section 1521. However, three factors
counsel against overruling Hartness.
        First, the Court concludes that Hartness was rightly decided in the first instance. Although
our dissenting colleagues disagree, the majority does not find that the wording of sections 1513(a)
and 1521 is so clear as to mandate reversal of Hartness. In fact, the Hartness panel found the plain
language was clear in support of its decision. The En Banc Court therefore now has the
responsibility to interpret the statutes. As explained in Hartness, interpreting sections 1513(a) and
1521 such "that a veteran who is 65 years or older and conforms to the service requirements of
section 1521 is entitled to a pension at the rates and under the conditions, other than permanent and
total disability, required by section 1521" is consistent with the legislative history of those statutes
and Congress's intent to provide a pension to veterans over the age of 65 years of age, regardless of
disability. Hartness, 20 Vet.App. at 220-21; see Veterans Education and Benefits Expansion Act
of 2001, Pub.L. 107-103, 115 Stat. 991. Further, as also noted in that decision, this interpretation
is "mindful that any ambiguity in interpretation must be resolved in the veteran's favor." Hartness,
20 Vet.App. at 221 (citing Gardener, 513 U.S. at 118).
        Second, overruling Hartness would not make the precise phrasing of section 1513(b) any
more meaningful. Assuming that Hartness was incorrectly decided, and the majority holds that it
was not, i.e., assuming old-age pensions under section 1513 were calculated exactly the same way
as disability pensions under 1521 were calculated once the eligibility was established, that result still
does not make sense of section 1513(b). There would be no reason for that provision to specify that
pensions under 1521 trump those under 1513 if they are calculated in an identical manner once
eligibility is established. However, even if there is no difference in result, it is more likely for
Congress to state that section 1521 is the default provision because all the details are contained in
that section while section 1513 merely creates an additional type of pension, which incorporates
section 1521's provisions by reference. In any event, overruling Hartness would not clarify the
precise phrasing of section 1513(b). Therefore, the Court is not persuaded to overrule Hartness.
        Third, even if overruling Hartness might result in an outcome more consistent with the
confusing language of the statute, the time for reconsidering Hartness de novo is past. The Supreme
Court has said "often and with great emphasis that 'the doctrine of stare decisis is of fundamental


                                                   8
importance to the rule of law.'" Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (citing
Welch v. Tex. Dept. of Highways & Pub. Transp., 483 U.S. 468, 494 (1987). Pursuant to the
doctrine of stare decisis, a Court's precedent should "be respected unless the most convincing of
reasons demonstrates that adherence to it puts [the Court] on a course that is sure error." Citizens
United v. FEC, 130 S. Ct. 876, 911-12 (2010). "Beyond workability, the relevant factors in deciding
whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance
interests at stake, and of course whether the decision was well reasoned." Montejo v. Louisiana, 129
S. Ct. 2079, 2088-89 (2009).
        In this case, the Court does not find that the Secretary has advanced "the most convincing of
reasons" demonstrating that Hartness "puts [the Court] on a course that is sure error." Citizens
United, 130 S. Ct. at 911-12. As discussed in this opinion, the Court concludes that Hartness was
a well-reasoned decision that produced a logical result and one that veterans and VA have relied on
for over four years. Simply put, in difficult cases of statutory interpretation, courts should resolve
an issue once and leave it to the legislature to amend the statute if it disagrees.                    See
Square D. Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 424 (1986) ("Stare decisis is usually
the wise policy because in most matters, it is more important that the applicable rule of law be settled
than that it be settled right. . . . This is commonly true, even where the error is a matter of serious
concern, provided correction can be had by legislation."). Revisiting and reversing issues of
statutory interpretation is not likely to produce a result that is substantially more satisfactory than the
first result, and the energies of the judiciary are better spent on resolving novel issues when the
legislature is fully capable of revising and clarifying the ambiguous law in dispute. Cf. Brown v.
Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) ("Whenever decisions of one court are
reviewed by another, a percentage of them are reversed. That reflects a difference in outlook
normally found between personnel comprising different courts. However, reversal by a higher court
is not proof that justice is thereby better done. There is no doubt that, if there were a super-Supreme
Court, a substantial proportion of our reversals of state courts would also be reversed."). To the
extent that our dissenting colleagues argue that Hartness was "wrongly decided," post at 18, they fail
to explain how the decision is "unworkable" in light of the fact it merely required the Secretary to
pay defined benefits to an easily identifiable class of claimants. Furthermore, it contains no attempt


                                                    9
to demonstrate that Hartness was "badly reasoned" other than to restate the ambiguous authorities
and pronounce that they compel the opposite conclusion. Post at 16.
        Our dissenting colleagues suggest that stare decisis is not applicable to the current decision,
or in any situation where the en banc Court has the opportunity to overrule a prior panel precedent.
However,
        The purpose of an en banc proceeding is not simply to determine whether a result in
        a particular case is correct, nor is an en banc court convened simply to second guess
        a three-judge panel. The reason for invoking the en banc process is to maintain the
        consistency of the law of the [court] and to resolve issues of exceptional importance.

U.S. v. Strickland, 601 F.3d 963, 987 (9th Cir. 2010) (Reinhardt, J., dissenting). Further, the law
"is established not just by en banc decisions, but by panel decisions as well." Gulf Power v. Federal
Communications Com'n, 226 F.3d 1220, 1224 (11th Cir. 2000); see Harris v. Derwinski, 1 Vet.App.
438 (1991) (en banc order) (noting that this Court's published opinions are binding precedent and
must be respected under principle of stare decisis). Although the en banc Court has the power to
overrule a prior panel decision, this does not mean that it is required to do so. See U.S. v. Argon, 851
F.2d 1158, 1175, n.6 (9th Cir. 1988) (en banc) (Reinhardt, J., concurring) ("court must make two
decisions in order to reject precedent: first, to go en banc, and second, to overrule the earlier case .
. . In the first type of case, the court, when deciding whether to go en banc, is required to give[] some
consideration to whether the principles of stare decisis should preclude the en banc court from
overruling the earlier case."). Here, the Court finds that although it has the opportunity to overrule
Hartness, for the reasons outlined above, including the interests of consistency of the Court's case
law, it declines to do so.
        In this case, the Secretary had the opportunity to appeal this Court's decision in Hartness to
the Federal Circuit and did so. While it is not clear from the Secretary's voluntary motion to dismiss
why the appeal was withdrawn, it does not appear that the appeal was rendered moot, but that a
unilateral decision was made to terminate the appeal, which was granted on the basis that Mr.
Hartness's counsel "was consulted and . . . consented to dismiss the appeal." Hartness v. Nicholson,
No. 2007-7024 (Fed. Cir. Nov. 14, 2007) (unpublished consent motion to dismiss appeal). To the
extent that our dissenting colleagues suggest that the Secretary could properly issue a guidance letter
telling regional offices to ignore the reasoning and holding of Hartness in cases that were not

                                                   10
factually identical in lieu of pursuing an appeal, post at 17, we strongly disagree. As the full Court
held in Ribaudo v. Nicholson, nonacquiesence by the Secretary is not a legitimate tactic for dealing
with opinions with which he may disagree. 20 Vet.App. 552, 556 (2007) (en banc).
        Furthermore, the Court's decision in Hartness has not gone unnoticed in Congress where
legislation has been introduced to abrogate that decision, but has failed to pass both chambers. See
S. REP. NO . 148, 110th Cong., 1st Sess. 32-38 (2007) (discussing Hartness and legislation that
passed the U.S. Senate Committee on Veterans' Affairs' to abrogate it). Therefore, the Court
concludes that the interpretation of section 1513(b) reached in Hartness is past the point of judicial
reconsideration without an exceptional showing demonstrating that the principles of stare decisis
should not be applied.
        As Judge Learned Hand observed many years ago: "[I]t is now well settled that the 'law of
the case' does not rigidly bind a court to its former decisions, but is only addressed in good sense."
Higgins v. California Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (3d Cir. 1924). The Court
concludes that here, it is in good sense not to overrule Hartness. Given that the Court concludes that
the Secretary's argument is unpersuasive and it would not be appropriate to revisit what has been
decided in Hartness, we agree with the appellant's argument in this case. Section 1513(b) prevents
a veteran from collecting one pension under section 1521 and a second pension under section 1513,
but it does not prevent a veteran from receiving a higher pension under section 1513 simply because
he would be eligible only for a basic pension under section 1521. This result prevents one class of
totally disabled veterans from being treated less generously than a similarly situated class of veterans
who are not totally disabled and is consistent with the rule that ambiguity in title 38 should be
resolved in favor of veterans. See Gardner v Brown, 513 U.S. 115, 118 (1994).
        Accordingly, we conclude that the Board erred in determining that the appellant is not
entitled to the application of section 1513 and the ruling in Hartness, and that the appellant is
required to show a single permanent disability that is a 100% disability under the schedule for
disabilities in order to receive special monthly pension under section 1521(e). R. at 6-10. VA has
already determined that the appellant has a non-service-connected disability pension because his
disabilities prevented him from maintaining employment, has a disability rated at 60%, and now is




                                                  11
over the age of 65. He is, therefore, entitled to special monthly pension under section 1521(e),
pursuant to the interpretation of section 1513(a) in Hartness.


                                        III. CONCLUSION
       Based on the foregoing reasoning, the Court REVERSES the Board's March 7, 2008,
decision that the appellant's current pension under section 1521(a) precludes him from receiving
upgraded benefits in the form of a special monthly pension now that he is over 65, and the Court
REMANDS the matter for further proceedings consistent with this opinion.


       DAVIS, Judge, concurring: The critical question before the Court in this case is what did
Congress intend when drafting the language contained in 38 U.S.C. §1513(a). The plain language
is inexact and unclear. Contrary to the dissent's assertion, the answer, ultimately, is that Congress’s
intent is ambiguous and that ambiguity must be resolved in favor of the veteran. Gardner v Brown,
513 U.S. 115, 118 (1994).
       Section 1513(a) provides:
       (a) The Secretary shall pay to each veteran of a period of war who is 65 years of age or older
       and who meets the service requirements of section 1521 of this title [38 USCS §1521] (as
       prescribed in subsection (j) of that section) pension at the rates prescribed by section 1521
       of this title[38 USCS §1521] and under the conditions (other than the permanent and total
       disability requirement) applicable to the pension paid under that section.
(emphasis added).
       The “total and permanent disability” language only appears in two places in section 1521.
It first appears in section 1521(a). There it takes the form of “...[a]nd who is permanently and totally
disabled.” It next appears in section 1521(e). In section 1521(e) it takes the form of “If the veteran
has a disability rated as total and permanent.”
       Thus, the question becomes: In enacting section 1513, did Congress intend to exclude the
language only contained in section 1521(a) or did it also intend to exclude similar language found
in section 1521(e)? The majority of this Court, following earlier precedent in Hartness v. Nicholson,
20 Vet.App. 216 (2006), concluded that because the plain, and inexact, language of section 1513(a)
is ambiguous, the exclusion should apply to both sections in which references to a permanent and


                                                  12
total disability appears. The dissent on the other hand, says that because section 1513(a) uses the
specific language “other than the permanent and total disability requirement” rather than “a
disability rated as permanent and total,” Congress therefore intended only to exclude the permanent
and total disability requirement from paragraph 1521(a), what the dissent characterizes as the
threshold requirement for receiving the pension benefits. Under the dissent's interpretation of the
statute, even though Mr. Chandler has reached 65 years old, he would not be entitled to a higher
pension payment because he is already receiving a non-service connected pension under section 1521
based on a disability. These two opposite interpretations illustrate that the statutory language is, in
fact, ambiguous.
       In determining legislative intent, Courts often examine the legislative history of the statute.
In 2001, Congress enacted 38 U.S.C. § 1513, awarding non-service-connected pension without
regard to disability for veterans 65 years of age and older who met the service requirements of having
served 90 days or more during a time of war. Veterans Education and Benefits Expansion Act of
2001, Pub.L. 107-103, U.S.C.C.A.N. (115 Stat.) 991. The legislative history of § 1513 is sparse.
While Congress clearly intended § 1513 to be interpreted in conjunction with 38 U.S.C. § 1521,
Congress did not specifically explain their interplay. This Court specifically noted the resulting
ambiguity in footnote 2 of the Harntess decision. Footnote 2 provides:
       We also note that in section 1521 Congress distinguishes between a veteran “who is
       permanently and totally disabled,” 38 U.S.C. §1521(a), and a veteran who has “a disability
       rated as permanent and total,” 38 U.S.C. §1521(e). However, because Congress did not
       make that distinction in the section 1513 statutory language excluding the permanent-and-
       total-disability requirement, here we apply section 1513 to section 1521(a) and (e).
20 Vet.App. at 221. Thus, the Hartness panel struggled with the same statutory interpretive issue
as we do again in Chandler, and resolved that ambiguity in a light most favorable to the veteran as
required by Gardner.
       The history of § 1521 dates back to 1958, when Congress first passed a law entitling veterans
of World War I, World War II, or the Korean conflict to a monthly pension provided they had served
for ninety days or more during those respective times, and were permanently and totally disabled
from a non-service-connected disability not the result of their own misconduct. Pub.L. 85-857,
U.S.C.C.A.N. (72 Stat.) 1136. In that same Act, Congress provided pensions for veterans of the


                                                  13
Civil War, Indian War, and Spanish-American War; however, veterans of those wars did not have
to fulfill a disability requirement to qualify for a pension, only an income requirement.
       In 1967, Congress decided that it would presume that all veterans age 65 or older were
permanently and totally disabled and qualified to receive a non-service-connected disability pension,
apparently in an effort to ensure elderly wartime veterans received economic assistance even if they
were not disabled. Veterans' Pension and Readjustment Assistance Act of 1967, Pub.L. 90-77,
U.S.C.C.A.N. (81 Stat.) 178. Congress repealed that presumption in 1990, leaving the current
statutory structure. Omnibus Budget Reconciliation Act of 1990, Publ.L. 101-508, U.S.C.C.A.N.
(104 Stat.) 1388. It is logical that Congress intended that disabled wartime veterans would receive
a higher pension amount than non-disabled wartime veterans, resulting in the various categories
established in § 1521 (b) through (g).
       As §§ 1513 and 1521 are currently written, Congress has left much up to the Court's
interpretation with little guidance. The factual circumstances of Hartness, and the Court's obligation
to resolve ambiguity in favor of the veteran, resulted in the conclusion that § 1513(a) excluded the
disability requirement contained in § 1521(a) and (e). A common sense reading of the statutory
structure makes two things clear. First, pursuant to section 1513(a), Congress determined that an
older veteran who has served for ninety consecutive days in a time of war is entitled to a pension
payment by virtue of age and service. Second, pursuant to the provisions contained in section
1521(b) through (g), based on the veteran’s individual circumstances, the veteran receives pension
payments that vary depending on the veteran’s marital status, whether or not the veteran is
supporting children and whether or not the veteran has certain levels of disability.
       While neither the position of the majority nor that of the dissent is unreasonable, this is a
classic example of the plague of veterans law–that is–too often statutes and regulations are unclear
and ambiguous, and lack legislative history from which intent may be derived.                In such
circumstances, I agree wholeheartedly with my colleagues in the majority that ambiguity must be
resolved in the light most favorable to the veteran. Gardner, supra. Were this Court to overrule
Hartness, as the dissent requests, we would be offering yet another interpretation of what we think
Congress may have meant, and a potentially disparate treatment of veterans similarly situated as the
majority points out.


                                                 14
        Moreover, the kind of ambiguity that disrupts the fluid operation of this statutory provision
begs for a legislative fix, which I understand, may be currently pending on Capitol Hill. Veterans'
Benefit Enhancement Act of 2009, S. 728, 111th Cong. § 202. Whether or not Congress ultimately
addresses the legislative ambiguity extant here, it is not the province of this Court to draft corrective
legislation disguised as an opinion.


        KASOLD, Chief Judge, with whom GREENE, Judge, joins, dissenting. Certainly, matters
that are settled should remain settled unless there is very good reason to unsettle them. See Citizens
United v. FEC, 130 S. Ct. 876, 911-912 (2010) ("[P]recedent is to be respected unless the most
convincing of reasons demonstrates that adherence to it puts [the Court] on a course that is sure
error."); see also Arizona v. Rumsey, 467 U.S. 203, 212 (1984) ("[A]ny departure from the doctrine
of stare decisis demands special justification."). Equally certain, however, when decisions are wrong
and not settled, there is little to no reason to let them stand. See Payne v. Tenn., 501 U.S. 808, 827
(1991) ("[W]hen governing decisions are unworkable or are badly reasoned, 'this Court has never
felt constrained to follow precedent.'" (quoting Smith v. Allwright, 321 U.S. 649, 665(1944))); see
also Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir. 2000), vacated as moot on reh'g en
banc, 235 F.3d 1054 (8th Cir. 2000) ("[W]e are not here creating some rigid doctrine of eternal
adherence to precedents. Cases can be overruled. Sometimes they should be. . . If the reasoning of
a case is exposed as faulty, or if other exigent circumstances justify it, precedents can be changed.");
Ribaudo v. Nicholson, 20 Vet.App. 552 554, n.20 (2007) (en banc) ("[T]his Court, now sitting as a
full court panel, is not bound by this Court's prior decisions and is free to write on a clean slate.").
        Succinctly stated, the Court erred in Hartness v. Nicholson, 20 Vet.App. 216 (2006), when
it concluded that the enactment of 38 U.S.C. § 1513(a), which provides pension benefits for veterans
aged 65 and over "at the rates prescribed by [38 U.S.C. § 1521] and under the conditions (other than
the permanent and total disability requirement) applicable to pension paid under that section"
(emphasis added), was intended by Congress to be anything other than a mechanism for our elderly
veterans who are not permanently and totally disabled to meet the threshold requirement established
in 38 U.S.C. § 1521(a) for receiving the pension benefits otherwise payable under 38 U.S.C. § 1521,
with the specific amount of pension based on additional criteria provided in subsection (b)


                                                   15
(unmarried or separated), (c) (married), (d) (in need of regular aid and attendance), (e) (a disability
rated as permanent and total and additional disability rated at 60% or permanently housebound), or
(f) (veteran spouses both eligible for pension).
         Contrary to the majority's suggestion, this is not a case where the language of the statute is
ambiguous.1 Congress's choice of words is clear and its plain language is controlling. See Conn.
Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("We have stated time and again that courts
must presume that a legislature says in a statute what it means and means in a statute what it says
there . . . . When the words of a statute are unambiguous, then, this first canon is also the last:
'judicial inquiry is complete.'" (quoting Rubin v. United States, 449 U.S. 424, 430 (1981))); Bradley
v. Peake, 22 Vet.App. 280, 291 (2008) ("'Congress expresses its intent through the language it
chooses' and that the choice of words in a statute is therefore deliberate and reflective." (quoting
Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1347 (Fed. Cir. 2004) (quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 433 n. 12, 436 (1987))).
         The phrase in section 1513(a), "other than the permanent and total disability requirement,"
refers to the threshold requirement in section 1521(a) that a veteran be "permanently and totally
disabled" to be eligible for any pension benefits under section 1521, and does not refer to the
additional requirement in section 1521(e) that a veteran have "a disability rated as permanent and
total" (emphasis added) to be considered for the compensation provided by that subsection. Section
1521(a) explicitly refers to veterans who are considered to be permanently and totally disabled, while
section 1521(e) explicitly refers to veterans who have a disability rated as permanent and total. That
the phrase "permanently and totally disabled" is different from "a disability rated as permanent and
total" should not be questioned, as the law provides that a veteran can be permanently and totally
disabled without having a disability rated as permanent and total; e.g., under 38 U.S.C. § 1502(a)(1),




1
  W ith regard to the suggestion of our colleague concurring with the majority that a statute must be ambiguous if two
interpretations are proffered, this is only so when the two interpretations are equally reasonable or fair interpretations
of the plain language used by Congress. Saying it is so does not make it so. Stolt-Nielsen S.A. v. Animal Feeds
International Corp., 130 S.Ct. 1758, 1769, n.7 (2010) ("[M ]erely saying something is so does not make it so"). This
is why panel decisions should be reviewed de novo. Ribaudo, supra.




                                                           16
a patient in a nursing home for long-term care because of disability is considered "permanently and
totally disabled."
         The majority's discussion of the quality of the reasoning provided in the Hartness decision
ignores the fact that the Hartness decision addressed the significant difference in the language of
section 1521(e) (requiring a disability rated as permanent and total), and the language of section
1513(a) and 1521(a) (addressing the permanent and total disability requirement or status), in a
footnote, 20 Vet.App. at 221, n.2. , without the reasoned analysis that might withstand the scrutiny
of a review by the en banc Court, see Citizens United, 130 S.Ct. at 911-12 (noting that a relevant
factor in stare decisis is "whether the decision was well reasoned" (quoting Montejo v. Louisiana,
129 S.Ct. 2079, 2088-2089 (2009)). See also National Cable & Telecommunications Ass'n, Inc. v.
Gulf Power Co, et al, 534 U.S. 327, 335 (2002) (rejecting conclusion, presented in a footnote
without analysis, that had no foundation in the plain language of the statute); United States v. Sotelo,
436 U.S. 268, 283 (1978) (Rehnquist, J., dissenting) ("Perhaps recognizing that this provision not
only does not support its conclusion but seriously undermines it, the Court not surprisingly attempts
to keep this provision in the background, addressing it only obliquely in a footnote . . ."); Edelman
v. Jordan, 415 U.S. 651 (1974) (declining to give stare decisis effect to judgments that had been
issued without opinion -- "summary affirmances" that did not "contain any substantive discussion"
of the point at issue or any other point, id., at 670-671); Ribaudo, supra.
         Similarly, the majority's suggestion that Hartness remains a workable decision is undercut
by the very fact that in an effort to work around Hartness, the Secretary promulgated the VA Fast
letter that is at the heart of this appeal, and that the majority has now stricken down.2 The Hartness


2
  The Secretary's Fast Letter is referenced because it demonstrates that the particular issues discussed in Hartness are
not workable and not accepted by the parties (at least one of them) over time. The majority's suggestion that this
reference somehow indicates support for the proposition that the Secretary might avoid application of our precedential
case law is perplexing because any such indication is not fairly raised by the reference. Moreover, the Secretary's Fast
Letter is an obvious attempt to comply with the holding in Hartness for claims involving facts identical to those in
Hartness, but not for claims with some differentiating fact. Cf. Cohens v. Virginia, 19 U.S. 264 (1821) (noting that
language in a particular case is meant be viewed in the context of the case and should not be extended blindly in
subsequent cases). As the majority notes, the Fast Letter has unreasonable distinctions and results. If Hartness were
correctly decided, the Fast Letter should be stricken. But the key issue to be taken from the Fast Letter is that Hartness
is not workable or well-settled by time which, in the context of being wrongly decided, weighs against the application
of stare decisis. Citizens United, supra (noting relevant factors for applying "stare decisis include [workability], the
antiquity of the precedent, the reliance interests at stake, and whether the decision was well reasoned"). See also Nat'l
Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1374 (Fed. Cir. 2001) (noting that parties

                                                           17
decision is unworkable because in equating the phrase in section 1521(e) with the phrases in section
1513(a) and 1521(a), Hartness gives no meaning to the plain language of the statute, with the end
result being an unauthorized grant of additional pension benefits, at the expense of the taxpayer, to
veterans not otherwise entitled to receive those benefits. See Office of Pers. Mgmt. v. Richmond, 496
U.S. 414, 432-33 (1992) (no equitable considerations can create a right to payments out of the U. S.
Treasury that have not been provided for by Congress); Rhodan v. West, 12 Vet.App. 55, 57, 58
(1998) (Holdaway, J., concurring) ("[I]t must be remembered that the Secretary is not merely
representing the departmental interests, he is, in a larger sense, representing the taxpayers of this
country and defending the public fisc from the payment of unjustified claims. . . . There is a duty to
ensure that, insofar as possible, only claims established within the law are paid. The public fisc and
the taxpayer must be protected from unjustified claims.").
         The majority err today in concluding that the doctrine of stare decisis warrants retention of
Hartness. None of the reasons for applying that doctrine apply here. The Hartness decision is
wrongly decided, and the passage of time since Hartness was decided – four years – is hardly enough
time to give it the weight of "antiquity." Citizens United, supra (noting antiquity of a decision as a
factor in applying stare decisis). And, the majority's focus on the fact that Congress has not yet
passed an amendment to rectify the error ignores the reality of passing legislation, and gives too little
weight to the express concerns by the Senate that have not been expressly rebutted by the House;
there simply is no basis to suggest that attempts to amend the statute have been rejected by Congress,
as opposed to sidelined because of other major issues addressed in the past several years.
         The doctrine of stare decisis is important to our jurisprudence, but when the en banc Court
for the first time is reviewing a particular issue and also reviewing a panel decision that (1) is wrong,
(2) has been in effect for only four years, (3) has caused a party (here, the Secretary) to attempt to
work around it, (4) purports to authorize benefits not otherwise authorized by Congress, and (5) has
resulted in Congress undertaking to pass legislation to overrule the decision by statute, stare decisis
should not apply; or, at least the considerations of stare decisis should not outweigh overturning the
erroneous panel decision by the en banc Court. Citizens United and Ribaudo, both supra. "In such



are not bound by decisions of a Court in subsequent cases if they plan to seek review of an issue in a higher court).

                                                          18
circumstances, where a wrong turn has been taken, back is the shortest way forward." United States
v. Anderson, 885 F.2d 1248, 1255 (5th Cir. 1989) (en banc).




                                               19
