Skinner v. Brown (27 F.3d 1571, 1994)

MAYER, Circuit Judge.

The Secretary of Veterans Affairs appeals the judgment of the United States Court of Veterans Appeals, Skinner v. Brown, 4 Vet.App. 141 (1993), reversing the denial by the Board of Veterans Appeals of Suzanne V. Skinner’s claim for benefits under the Restored Entitlement Program for Survivors. We affirm.

Background

Skinner is the daughter of James Skinner, Jr., a Vietnam veteran who died in December 1987 as a result of a service-connected heart condition. At the time of her father’s death, Skinner was eighteen years old and a full time student at the University of Alabama. More than one year later, she filed an application for benefits under the Restored Entitlement Program for Survivors, Pub.L. No. 97-377, § 156, 96 Stat. 1920 (1982) (set out as amended at 42 U.S.C. § 402 note (1988)) (REPS); the Department of Veterans Affairs awarded REPS benefits effective February 1989, the date of her application. Skinner filed a Notice of Disagreement, requesting that she receive benefits effective December 1987.

The Board of Veterans Appeals denied her claim, citing a VA regulation limiting retroac-tivity of REPS benefits to claims filed within eleven months of the date of the claimant’s first eligibility. 38 C.F.R. § 3.812(f)(2)-(3) (1992). The Court of Veterans Appeals reversed, relying on Cole v. Derwinski, 2 Vet.App. 400 (1992), on appeal sub nom. Cole v. Brown, No. 93-7003 (Fed.Cir. Feb. 7, 1994), in which it struck down subparagraphs (2) and (3) of 38 C.F.R. § 3.812(f) as contrary to the plain meaning of the REPS law. The court determined that since Skinner met all of the statutory requirements for REPS entitlement, she deserved benefits retroactive to December 1987, the month in which she first became eligible. The Secretary now appeals.

Discussion

The sole question is whether those portions of 38 C.F.R. § 3.812(f) that establish a time-specific filing requirement for entitlement to REPS benefits overstep VA authority under the relevant statute, Pub.L. No. 97-377, § 156, 96 Stat.1920. The answer depends on our construction of the statute, a task we perform de novo. 38 U.S.C. § 7292(d)(1) (Supp. IV 1992); Prenzler v. Derwinski 928 F.2d 392, 393 (Fed.Cir.1991).

I.

We start with the language of the REPS statute, for “[i]f the intent of Congress is clear, that is the end of the matter....” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). The statute provides for monthly payments to certain survivors of military personnel who die during service or as a result of service connected injury or disease. Under REPS, the VA “shall pay each month” benefits to each person

(A) who is the child of a member or former member of the Armed Forces described in subsection (c);

(B) who has attained eighteen years of age but not twenty-two years of age and is not under a disability as defined in section 223(d) of the Social Security Act (42 U.S.C. 423(d));

(C) who is a full-time student at a post-secondary school, college, or university that is an educational institution (as such terms were defined in section 202(d)(7)(A) and (C) of the Social Security Act as in effect before the Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35; 95 Stat. 841)); and

(D) who is not entitled for such month to a child’s insurance benefit under section 202(d) of the Social Security Act (42 U.S.C. 402(d)) or is entitled for such month to such benefit only by reason of section 2210(c) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 842).

Pub.L. No. 97-377, § 156(b)(1), 96 Stat. 1920. The amount of benefits payable each month under REPS is determined by subsection (2): the child is to receive

the amount that the person concerned would have been entitled to receive for such month as a child’s insurance benefit under section 202(d) of the Social Security Act (as in effect before the amendments made by section 2210(a) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 841)), disregarding any adjustments made under section 215(i) of the Social Security Act after August 1981, but reduced for any month by any amount payable to such person for such month under section 2210(c) of the Omnibus Budget Reconciliation Act of 1981 (95 Stat. 842).

Pub.L. No. 97-377, § 156(b)(2), 96 Stat. 1921. Section 202(d) of the Social Security Act thus furnishes the method for calculating REPS benefits: the amount of the “child’s insurance benefit for each month shall, if [the parent] has died in or prior to such month, be equal to three-fourths of the [parent’s] primary insurance amount_” 42 U.S.C. § 402(d)(2) (1988).

Nowhere does the REPS statute limit the amount of benefits an applicant may receive because of a delay in filing. Instead, it directs that the Secretary “shall pay each month” REPS benefits to any person who meets the requirements set out in section 156(b)(1). The language is mandatory, leaving no room for the VA to impose additional restrictions on entitlement. Under REPS, the agency must pay benefits for each month that the recipient meets the statutory requirements expressly set out.

The Secretary argues that the statutory delegation of power to implement REPS through necessary regulations includes the authority to impose time limits on filing applications for REPS benefits. He finds support for the VA regulation to this effect in' the statute’s provision that a child is to receive only those benefits that she would be entitled to receive under the Social Security Act, reasoning that Congress thus intended to incorporate the limitations of that act into REPS. The Secretary points specifically to section 202(j) of the Social Security Act, which provides for child’s insurance benefits retroactive to six months prior to the application’s filing date. 42 U.S.C. § 402