Filed: Jun. 12, 2020
Latest Update: Jun. 12, 2020
Summary: Case: 19-2188 Document: 39 Page: 1 Filed: 06/12/2020 NOTE: This disposition is nonprecedential.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
Summary: Case: 19-2188 Document: 39 Page: 1 Filed: 06/12/2020 NOTE: This disposition is nonprecedential.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 D..
More
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NOTE: This disposition is nonprecedential.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:
Case: 19-2188 Document: 39 Page: 3 Filed: 06/12/2020
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
Case: 19-2188 Document: 39 Page: 4 Filed: 06/12/2020
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
Case: 19-2188 Document: 39 Page: 5 Filed: 06/12/2020
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.
