mr buffington this case involves the payment of disability compensation to previously disabled veterans who returned to active service the veterans court committed legal air when it concluded that the one year for iture provision in regulation three six hundred and fifty four b two is not inconsistent with the statute so let's consider st the language of the statute it is undisputed that section  dollars mandates that the united states will pay disability compensation to veterans who it's established they are entitled to them in fact better but that's general language and so  and four c together disability compensation is paid except when it is not paid it's a simple and straightforward proposition and that simple straightforward proposition is mandated by the language of the statu and importantly what is implicit in section five thousand three hundred and four see is that that bar on dual compensation implies that disability compensation was provided disability compensation will stop for that period and that disability compensation will resume how do you in the determination of whether there's a gap how do you read the  fact what you think about the fact that in in five thousand one hundred and twelve b three congress set very specifically this effective date to discontinue benefits upon return to active duty but there's no really what that does is it confirms the period of active service is just that it is the shortest period of time if congress had intended that the bar on dual compensation be anything other than the period any period of active duty service congress could have set a different date in five thousand one hundred and twelve b three but what congress did do was disability compensation stops at the latest twelve stablish is when disability compensation stops it unequivocally says that five thousand three hundred and four provides the duration any period of active service and the words of the statute that are especially important here is any period of active duty service and it should mean just that only that period when there is a bar on to a compensation any period outside of that four doesn't create prevents the v a from requiring a really application or a new application to resume benefit after the period of active service or is your view that fifty three  prevents any application that benefits whatever the benefits were before they should resume exactly in the same fashion on the c active service that are meant to be continuous and only stopped during this period what is your position our position is that the government can certainly require reapplication the government can require a veteran to appear for an additional medical exam the government can reconsider  amount of disability compensation so that the government can do all those things if your view is that the government can require reapplication or an additional medical exam inherent in that view is the understanding that fifty four doesn't just terminate continuous benefit for a intermediate period but rather terminate those benefits and then those benefits are some action must be taken to restart those benefits we agree that the government can require forms and it is entirely within the province of the government to do that our argument is soley that the government by virtue of that reapplication additional medical exams may be required is inconsistent in my personal view with your articulated interpretation for the any period language in fifty three you foresee because that i understand your argument of the statutory interpretation to be the record that any time that a veteran is untitled entitled to disability compensation the government can require a veteran for example to have additional medical examinations it can require additional information from veterans for the continuance of disability compensation so what i'm saying but you wouldn't  application a re application is required you made it your brave new minute or are given a minute ago so if they have to re apply then how is it that they are continuously entitled the the disability compensation the service connection to which the veteran is entitled does not stop that is a different kind a new application or an increase in service connection or other things that a veteran can do so it is significantly different here that veterans who who are disabled and yet return to active service continue to be service connected for their disability that does not change and the veteran do you know that the v a absolutely awards benefit for what are non permanent disability not every disability gets worse some get better with time some improve some abate what the veterans court in its decision recognized that the veteran will continue to be service connected for the disability for which they were receiving disability compensation now when they return or stop active service and the period of active service and five thousand three hundred and four dollars c and they remain service connected that does not change what the government can require and can do in other cases as well is for the veteran to go in for additional medical exams to consider whether the level of compensation that the not actually be any more in title when they could be on their side that is correct your honor but as the veterans court said at appendix eleven that service connection remains in place if there is a separate determination that the level of compensation for that service connection has changed but the fact of service connection is actually important even if the level of disability or the level of compensation is adjusted to zero and what continues through before the disability compensation was being provided and then stops at the period of active service service connection does remain that does not stop and what the government can require is is additional information medical exams as i said but there is that continuity from before until after with a break just for the period any period of active service and the government dispute just continuing disability not that i am aware and i don't believe that's in the record but i am not aware that there was any dispute on the continued in title meant the particular and i know  the facts are at issue here but the disability that mr buffington was service connected for was tonight of which is generally considered a condition that once you have it you have it and my understanding is that disability compensation there was no dispute that he continued to be entitled to receive it and and that he is receiving it now the issue was when was the date so someone didn't reapply you and knowledge that a reallocation could be required suppose someone didn't reapply for ten years and when they reapply in ten years there was either an abatement or a worsening of their condition who knows it did not remain constant what is the government supposed to do in terms of assessing retroactively what level of disability compensation they need to it is not uncommon for the v a to be required to go back substantial periods of time and to consider levels of disability over periods of time and determining whether the disability remains whether the disability should be staged and for what periods of time and what the v a will do is get medical evidence and then have medical opinion and will reach a conclusion but those types of just what what i meant to say is that there is a bar on dual payment well what i mean but what do you confront the statutory language says you can't have double payment for a period when they're in active service so what does that word period mean how how are we to interpret that statutory section d any period defines the period in which double pain and is not permitted so that that it's a minimum period of discontinuation and it doesn't say for the period while they're in active service and any other period the v a might want to try to impose or add on to active service doesn't no but it also doesn't  falls or retirement pay what they were talking about pension because it covers all three so with regard to pension a pension is sort of undeniable right this is the rate at which your pension is going to be paid based on your years of prior service is that relatively close to accurate i believe so your honor ok so you've got a set amount for pension say it's forty thousand dollars a year is needed to get called up in active duty now you can't receive your forty thousand dollars pension while you're on active duty correct correct ok so then all of a sudden you're active duty stuff shouldn't your pension resume on the day you're active duty stuff i mean there's no dispute over the amount should be the amount is set in stone quite frankly well i do think there is a difference between a pension that is being paid directly disability to the extent that it interferes with their ability to be gainfully employed so with a pension again this would would we're talking about a pension that is administered by your here however i have to file an application for that to happen to have that happen again if we're talking about a pension that's as if we're talking about a media that are run after needy pension and not aware of that process best for him so i i'm a little troubled because you're asking for an interpretation of the word any period which would theoretically not actually not theoretically which since they're all in one statute would absolutely impact all three of those if we give you the interpretation you want for the term of any period that would theoretically allow you to adopt regulations which prohibit the reinstatement of a pension without a series of hurdles and  discontinued but they did not because the date on which disability benefits would be condensed and that left a gap and i think a recognition by congress that the v a was in the best addition to determine if additional quick processing would be it's that's important because it means that the what you're saying is that we read the statute one way for certain kinds of of compensation or payments and we read it another way for the others day that the other pay starts essentially in other words what they're saying is you don't we're not going to take it take it further back from when you're called up to duty or or any other time frame it would actually support the conclusion that believe that we should be on the v a to say that that disability is no longer present even if and to be a would have the ability to do that to call them back and say we're going to reassess your disability levels  but that's not what you're arguing here or what you're arguing here is that we don't even have to reassess anything we can just basically take it away for an arbitrary timeframe if we choose to do so no i don't think it's an arbitrary timeframe i think that to the recommitment of pension and retirement pay i mean i understood you to suggest to me that the concerns i had about reapplication were limited to disability compensation  i'm looking at your reg which in part a says to pension compensation retirement pay and part b doesn't say anything about any of them though the word disability appears one  r three dollars that a disease or disorder determined by the v a to be such and the nature or extent to justify a determination the person suffering from that disease or disorder a permanent and totally disabled so that the seems to be pension situation that's more akin to a t d a u which i am not sure what took them down someone who is totally and completely disabled would be able to go back onto active duty sort of pay so it may be that while are lumped together it really doesn't have practical significance for a pension because someone who is totally and completely disabled or more more likely than not unlikely to be able to return to  to effect a forfeiture congress knew how to do it and did not do so here if anything congress was not silent because it did so in other circumstances and specifically did not and graft of for provision disabled veterans who returned to active service with respect to a gap in the statute our position is that there is no gap because the statute provides for a specific and limited period any period of active service but i did want to address the the secretary's ability to fill that gap if one exists this time your most difficult argument you're just not even addressing and that is is eye decision looked at statutory interpretations and said unequivocally that there are situations and it can be well accepted that there are situations when statutory language can be overlapping there the court was looking at section statute already said that and what the supreme court said and citing the duncan case which the government sites and which the v a the excuse me the veterans court relied on is that in some that those words must be given a fact and the secretary's interpretation does not give effect to any period of active service our view is that five thousand one hundred and twelve confirms that any period the shortest period possible the bar the duplications of compensation is just for that period and in considering the secretary's argument that section five  and in fact the secretary's brief at page twenty four dollars the secretary argues that our argument the secretary are argues that our point is nothing more than an attempt to in appropriately limit the broad discretion that congress forded v a to administer the veterans benefits scheme but the regulation the secretary implements are supposed to be necessary and appropriate to carry out the laws here this forfeiture provision in the reg is not necessary in appropriate to avoid the duplication of benefits that's the purpose