UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 07-0262

DARLENE S. CYPERT, APPELLANT,

V.

JAMES B. PEAKE, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

 (Argued October 8, 2008 Decided December 23, 2008)

Landon E. Overby, (non-attorney practitioner) of Washington, D.C., for the appellant.

Paul J. Hutter, with whom R. Randall Campbell, Assistant General Counsel; Richard

Mayerick, Deputy Assistant General Counsel; and Leslie C. Rogall, Senior Appellate Attorney, all

of Washington, D.C., were on the brief for the appellee.

Before GREENE, Chief Judge, and KASOLD and LANCE, Judges.

KASOLD, Judge: Darlene S. Cypert, wife of veteran Jerry L. Cypert, who has a 100% total

disability rating, permanent in nature, appeals from a December 13, 2006, Board of Veterans'

Appeals (Board) decision that denied her entitlement to Dependents' Education Assistance (DEA)

benefits under Chapter 35 of Title 38 of the United States Code. For the reasons set forth below, the

Board's decision will be reversed and the matter remanded for further adjudication consistent with

this decision.

I. BACKGROUND

Veteran Jerry L. Cypert served on active duty from August 1966 to December 1969. On

October 30, 1990, the Secretary notified Mr. Cypert that as a result of his service-connected posttraumatic stress disorder (PTSD) he was considered permanently and totally disabled for VA

purposes, effective September 25, 1990. At that time, Mr. Cypert was divorced from his first wife.
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He entered into a second marriage in July 1994 that ended in divorce in June 1999. In January 2004,

he married the appellant. Shortly thereafter, on February 4, 2004, Mrs. Cypert applied for DEA

benefits. Her application was denied by the Board because it determined that the availability of DEA

benefits ended on September 2000, 10 years after the date Mr. Cypert received his status as a

permanently and totally disabled veteran. Accordingly, the Board found that Mrs. Cypert was not

eligible for DEA benefits. Additionally, the Board determined that because Mrs. Cypert was not

married to Mr. Cypert before the eligibility period for DEA benefits had expired, she was not entitled

to an extension of the period of eligibility. See 38 C.F.R. § 21.3047 (2008) (allowing eligible or

surviving spouses an extension to the period of eligibility under certain circumstances). Mrs. Cypert

appealed. 

On appeal, Mrs. Cypert essentially argues that the Board erred as a matter of law because

38 U.S.C. § 3512(b)(1)(A) provides that the 10-year delimiting (or eligibility) period for using her

husband's DEA benefits begins to run from the date, as determined by the Secretary, that she became

an "eligible person" as defined by 38 U.S.C. § 3501 (a)(1)(D)(i). Pursuant to section

3501(a)(1)(D)(i), an "eligible person" is the "spouse of any person who has a total disability

permanent in nature resulting from a service-connected disability sustained during a period of

qualifying service." Accordingly, because her husband was permanently and totally disabled on the

date she married him, Mrs. Cypert argues that the 10-year delimiting period began at that time –

when she became Mr. Cypert's spouse. Further, Mrs. Cypert argues that although 38 U.S.C. § 3512

(b)(1)(B) permits her to choose an alternate beginning date, if agreed to by the Secretary, this

statutory section does not permit the Secretary to unilaterally assign a beginning date other than the

one provided under section 3512(b)(1)(A). Mrs. Cypert also argues that the Secretary's interpretation

and application of the implementing regulation, 38 C.F.R. § 21.3046(a)(2)(iii)(2008), is inconsistent

with 38 U.S.C. § 3512. 

The Secretary argues that the statutory language of 38 U.S.C. § 3512 (a)(1)(D)(i) allows him

to determine the beginning date of the 10-year DEA eligibility period, and the beginning date is not

limited to when Mrs. Cypert otherwise became an "eligible person" under section 3501(a)(1)(D)(i).

The Secretary finds support for his argument in 38 U.S.C. § 3512 (b)(1)(B) and his understanding

of the legislative intent and purpose of that statute. He also contends that his implementing
 Congress recently amended section 3512 to authorize a 20-year delimiting period, beginning "on the date the 1

[veteran's] disability was so determined to be a total disability permanent in nature, but only if the eligible person remains

the spouse of the disabled person throughout the period." See Veterans Benefits Improvement Act of 2008, Pub. L. No.

110-389, § 321, 122 Stat. 4145 (2008). Nothing in the amendment indicates the changes are to be applied retroactively.

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("Retroactivity is not favored in the law. Thus,

congressional enactments and administrative rules will not be construed to have retroactive effect unless their language

requires this result."). 

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regulation, and his application thereof, are consistent with his understanding of the statute.

II. ANALYSIS

A. The Statutory Scheme – 38 U.S.C. § 3500, et seq.

Both parties agree that availability of DEA benefits under section 3512 is limited to a period

of 10 years. The question is when the statutory 10-year period begins. Our review of the Board's 1

interpretation of statutes is de novo. 38 U.S.C. § 7261(a)(1); Ferenc v. Nicholson, 20 Vet.App. 58,

60 (2006). We begin our review by examining the statutory language. Ostero-Castro v. Principi,

16 Vet.App. 375, 380 (2002) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).

"Where a statute's language is plain, and its meaning clear, no room exists for construction. There

is nothing to construe." Gardner v. Derwinski, 1 Vet.App. 584, 587 (1991), aff'd sub nom.

Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994)). "Determining a

statute's plain meaning requires examining the specific language at issue and the overall structure

of the statute." Id. at 586; Reno v. Koray, 515 U.S. 50, 56-57 (1995) (construing statutory language

in context of statutory scheme); Kilpatrick v. Principi, 16 Vet.App. 1, 7 (2002) (examining entire

statutory scheme in interpreting meaning of statute);see also Glaxo Operations U.K. Ltd. v. Quigg,

894 F.2d 392, 396 (Fed. Cir. 1990) ("[E]ven when the plain meaning of the statutory language in

question would resolve the issue before the court, the legislative history should usually be examined

at least 'to determine whether there is a clearly expressed legislative intention contrary to the

statutory language.'" (quoting Madison Galleries Ltd. v. United States, 870 F.2d 627, 629 (Fed. Cir.

1998))).

In this instance, we find that the "statute's language is plain, and its meaning clear." Gardner,

1 Vet.App. at 587. Section 3512(b)(1)(A) states in relevant part that
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Except as provided in subparagraph (B) or (C), a person made eligible

by subparagraph (B) or (D) of section 3501(a)(1) of title [38 USCS

§ 3501(a)(1)] . . . may be afforded educational assistance under this

chapter during the 10-year period beginning on the date (as determined

by the Secretary) the person becomes an eligible person within the

meaning of section . . . 3501(a)(1)(D)(i) . . . .

Pursuant to section 3512(b)(1)(A), a person is "made eligible by subparagraph (B) or (D) of section

3501(a)(1) of title [38 USCS. § 3501(a)(1)]" (emphasis added). Section 3501(a)(1), states, in

pertinent part, that an "eligible person" is

[t]he spouse of any person who has a total disability permanent in

nature resulting from a service-connected disability sustained during

a period of qualifying service.

38 U.S.C. § 3501(a)(1)(D)(i). Thus, by the plain language of section 3501(a)(1) (D)(i), a person who

is a spouse of a person who has a service-connected total and permanent disability is an eligible

person, and by the plain language of section 3512(b)(1)(A) anyone made eligible by section

3501(a)(1) (D) may be afforded educational benefits "during the 10-year period beginning on the date

(as determined by the Secretary) the person becomes an eligible person within the meaning of section

. . . 3501(a)(1)(D)(i)." (emphasis added).

Although the Secretary correctly notes that he is to determine the beginning of the 10-year

delimiting period, his discretion is not unfettered. Again, under the very terms of section

3512(b)(1)(A), the beginning date for eligibility for DEA benefits, as determined by the Secretary,

is when the person becomes an eligible person within the meaning ofsection 3501(a)(1)(D)(i). This

section has two criteria. First, a person is not eligible unless that person is a spouse. Second, that

person must be the spouse of a "person who has a total disability permanent in nature resulting from

a service-connected disability sustained during a period of qualifying service." 38 U.S.C.

§ 3501(a)(1)(D)(i). The Secretary certainly has the authority to confirm both of these criteria;

however, in this instance, confirmation of these criteria is not contested. Accordingly, pursuant to

section 3512(b)(1)(A), Mrs. Cypert became an "eligible person," thus triggering the 10-year eligibility

period for DEA benefits, when she married Mr. Cypert, since both criteria were satisfied at that time.

B. The Secretary's Contentions 

1. Section 3512(b)(1)(B)

The Secretary contends that the beginning date, as determined by him, is limited by
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section 3512(b)(1)(B), which states in pertinent part:

(B) Notwithstanding subparagraph (A), an eligible person referred to

in that subparagraph may, subject to the Secretary's approval, elect a

later date for the 10-year period that would otherwise be applicable to

the person under that subparagraph. The beginning date so elected

may be any date between the beginning date determined for the person

under subparagraph (A) and whichever of the following dates applies:

 (i) The date on which the Secretary notifies the

veteran from whom eligibility is derived that the

veteran has a service-connected disability permanent in

nature. 

It is not clear why the Secretary believes this section authorizes him to determine a beginning date

other than the one established by section 3512(b)(1)(A). By its very terms, section 3512(b)(1)(B)

permits an eligible person to select an alternate date, if the Secretary permits; absent such an election

or lack of permission, the beginning date is the one established by section 3512(b)(1)(A). Assuming

arguendo that the Secretarywould authorize an alternate date in this case, Mrs. Cypert has not elected

one. Moreover, the phrase "for the 10-year period that would otherwise be applicable to the person

under subparagraph (A)," reinforces the fact that section 3512(b)(1)(A), by and of itself, establishes

a beginning period. See Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989) ("It is a

fundamental canon of statutory construction that the words of a statute must be read in their context

and with a view to their place in the overall statutory scheme."); see also Reno and Kilpatrick, both

supra. And, as noted above, that 10-year eligibility period begins when a person is "made eligible

by subparagraph (B) or (D) of section 3501(a)(1) of title [38 USCS § 3501(a)(1)]." 38 U.S.C.

§ 3512(b)(1)(A). Succinctly, stated, the Secretary's reliance on section 3512(b)(1)(B) for authority

to unilaterally set the beginning of the 10-year DEA eligibility period on the date the veteran is

notified that he is totally and permanently disabled, or any other date, is misplaced and without merit.

2. The Purpose Behind DEA Benefits

The Secretary also argues that DEA benefits were intended to assist spouses only during the

initial period of adjustment, and that this supports his interpretation that the 10-year DEA eligibility

period in this case began when Mr. Cypert received his status as a permanently and totally disabled

veteran, and expired before he married the current Mrs. Cypert. However, 38 U.S.C. § 3500 states
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the purpose behind DEA benefits, and it does not support the Secretary's argument. As stated in

pertinent part, DEA benefits are intended to assist spouses of veterans "in preparing [them] to support

themselves and their families at a standard of living level which the veteran, but for the veteran's[]

service-connected disability, could have expected to provide for the veteran's family." 38 U.S.C.

§ 3500; see also Gardner, Reno, and Kirkpatrick, all supra (examining a statute's meaning within

context of statutory scheme); Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) ("'[W]e assume

'that the legislative purpose is expressed by the ordinary meaning of the words used."' (quoting

Richards v. United States, 369 U.S. 1, 9 (1962))). Noting in section 3500, or elsewhere in the

statutory scheme, is there an expressed intention to limit DEA benefits to the initial period of

adjustment, as argued by the Secretary. Moreover, the Court cannot read into a statute an alternative

purpose premised on congressional intent. Cf. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522,

530 (1959) (when examining an Ohio statute, stating that "[h]aving themselves specifically declared

their purpose, the Ohio statutes left no room to conceive of any other purpose for their existence").

Therefore, the Secretary's reliance on a June 2001 statement made by the Deputy Secretary of

Veterans Affairs to Congress, in which he contended that section 3512 should be read to suggest that

the educational benefits provided to a spouse should be limited to an initial period of adjustment for

the veteran as a result of his total and permanent disability, is misplaced to the extent that Congress

did not articulate that command in crafting the version of the statute at issue here. 

3. The Ozer Case

The Secretary correctly notes that the current and applicable version of section 3512

authorizing DEA benefits for spouses was promulgated by Congress in response to the Court's

decision in Ozer v. Principi, 14 Vet.App. 257 (2001). The Court in Ozer invalidated the Secretary's

then-implementing regulation, 38 C.F.R. § 21.3046 (2001), because it limited DEA benefits to a 10-

year period beginning after the date on which the Secretary determined that the veteran had a total

disability permanent in nature. The Secretary argued that the regulation was based upon the statutory

language in 38 U.S.C. § 3512(b)(1)(A)-(C) (2000), however, the Court held that although the statute

provided a 10-year period in which benefits were available, that period did not begin to run until after

the veteran died. There is no dispute that Congress thereafter changed the statute to clearly provide

a 10-year period of benefits tied to a date other than the death of the veteran. However, Congress did
 The plain language of the Secretary's implementing regulation is subject to an interpretation and application 2

consistent with the statute; i.e., that the word "rating" refers to the rating decision issued by a VA regional office (RO)

that determines the eligibility of the spouse under 38 U.S.C. § 3501, as argued by Mrs. Cypert. Because the regulation

permits an interpretation consistent with the regulation, we need not invalidate the regulation at this time. Rather, it is

the Secretary's interpretation and application of the regulation that we find contrary to statute, and therefore

impermissible. See, e.g., Dolese v. Office Depot, Inc., 231 F.3d 202, 203 (5th Cir. 2000) (invalidating regulation only

to extent it was contrary to statute); Foxglenn Investors Ltd. Partnership v. Cisneros, 35 F.3d 947, 952 (4th Cir. 1994).

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not, as the Secretary argues,start that 10-year eligibility period on the date the veteran became totally

and permanently disabled. Rather, as we discuss above, Congress established the beginning date of

the eligibility period as the date the spouse became an "eligible person" within the meaning of section

3501(a)(1)(D)(i), with optional beginning dates permitted under section 3512(b)(1)(B) at the election

of the spouse and with permission of the Secretary. See 38 U.S.C. § 3512(b)(1)(A). 

C. The Implementing Regulation, 38 C.F.R. § 21.3046

The regulation promulgated by the Secretary to implement section 3512 states in pertinent

part: 

(iii) For spouses for whom VA made a final determination of

eligibility after October 27, 1986, shall be – 

(A) The effective date of the rating, or

(B) The date of notification, or

(C) Any date between the dates specified in paragraphs (a)(2)(iii) (A)

and (B) of this section as chosen by the eligible spouse.

38 C.F.R. § 21.3046. The Secretary may not, by regulation, establish a beginning date inconsistent

with the express language of the statute. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 843 n. 9 (1984) ("The judiciary is the final authority on issues of statutory construction

and must reject administrative constructions which are contrary to clear congressional intent.")

Accordingly, to the extent that the regulation interprets and implements section 3512 to limit the

beginning date of the 10-year DEA delimiting period to the date the Secretary determines that a

veteran's total rating is permanent in nature or the date that the Secretary notifies the veteran of this

determination, it is contrary to the plain meaning of section 3512 and its legislative purpose.2

Although agency regulations may be entitled to deference, see Chevron U.S.A., Inc., 467 U.S. at 843-

45 (Court gives deference to executive department's regulation making reasonable interpretation of

statutory scheme), deference is not warranted when the Secretary's interpretation is contrary to the
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plain meaning of the statutory language. See also Paralyzed Veterans of Am. v. Ellerbe Becket

Architects and Engs., P.C., 950 F. Supp. 389, 392 (D.D.C. 1996) ("An agency is empowered to

interpret its own regulations so long as such interpretation is reasonable in light of the text and

purpose of the statute and consistent with the statute and regulation." (citing Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 514-15, (1994))). Therefore, because the Secretary's interpretation

and application of 38 C.F.R. § 21.3046 in this instance are contrary to the authorizing statute, the

Board's December 13, 2006, decision, which rests on that interpretation and application, will be

reversed.

III. CONCLUSION

After consideration of the appellant's and the Secretary's briefs, the oral argument, and a

review of the record, the Board's December 13, 2006, decision denying Mrs. Cypert DEA benefits

because she was not an eligible person before her husband's period of eligibility for DEA benefits

expired is REVERSED, and the matter is REMANDED for further adjudication consistent with this

opinion.