UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

SARAH LYNN HOLBROOKS, Executor of The Estate of Howard Holbrooks, Deceased, Plaintiff - Appellant,

v. SUN LIFE ASSURANCE COMPANY OF CANADA, Defendant - Appellee. No. 13-3302 (D.C. No. 6:11-CV-01383-JTM) (D. Kan.)

ORDER AND JUDGMENT *

Before McHUGH , EBEL , and O’BRIEN , Circuit Judges.

This is an appeal from th e district court’s order af firming Sun Life Assurance Company of Canada’s (“Sun Life”) decision to offset Howard Holbrooks’s monthly disability payments from the Veteran’ s Administration (“VA” ) against monthly

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - benefits owed to him under a disability policy issued by Sun Life. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Background Dr. Holbrooks served for six years as a physician in the United States Army. Upon his honorable discharge in July 200 3, Dr. Holbrooks worked in the private sector and was insured under a group long- term disability policy (“the Policy”) issued by Sun Life as part of an empl oyer-sponsored benef its plan governed by the Employee Retirement In come Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. In 2009, Dr. Holbrooks was diagnose d with Amyotrophic Lateral Sclerosis (“ALS”). Under the Policy he was entitled to receive monthly disability benefits of sixty percent of his total m onthly earnings up to a maximu m of $15,000 per month. These benefits would be offset by any “O ther Income Benefits” Dr. Holbrooks was entitled to receive as a result of the same disabil ity. The Policy defined “Other Income Benefits” as including, among othe r things, any benef its Dr. Holbrooks received pursuant to “Worke rs’ Compensation Law” or a ny “Compulsory Benefit Act or Law . . . or any other act or law of like intent.” Aplt. A pp. Vol. I at A59. Pursuant to VA regulation 38 C.F.R. § 3.318, Dr. Holbrooks’s diagnosis with ALS also entitled him to a monthly disa bility benefit from the VA. Dr. Holbrooks made a claim for disability benefits with Sun Life. In response, Sun Life explained that th e VA benefits were “Other Income Benefit[s] as- 3 - defined . . . under a ‘Compulsory Benefit Act or Law; and/or any other act or law of like intent,’” and would therefore be offset against monthly benefi ts under the Policy. Aplt. App. Vol. II at A215. Sun Life al so notified Dr. Holbro oks that he could request “a review of the deni al within 180 days[,] . . . [a nd] submit written comments, documents, records or other informat ion relating to this matter.” Id . at A217. Dr. Holbrooks initiated an administrative appeal of Sun Life’s decision, which he characterized as being based solely on the VA benefit falling within the “[a]ny other act or law of like inte nt” portion of the Policy’s de finition of “Other Income Benefit.” He argued offset was improper because VA benefi ts were not specifically mentioned in the Policy’s definition of “Oth er Income Benefits,” and requested that, “Sun Life [ ] cease reducing hi s monthly disability benef it by $3,005.00 and [ ] return all monies previously offset wit hout the need [for] litigat[ion].” Id . at A296. Dr. Holbrooks did not challenge Sun Life’s alternate rationale that the VA benefit should be offset as a “Compul sory Benefit Act or Law.” Id . at A294. Sun Life denied the appeal on the groun d that the VA benefits were received under a law similar to “Wor kers’ Compensation Law.” Id . Vol. I at A90. Sun Life also acknowledged that Dr. Holbrooks had exhausted his administ rative remedies and that he “may have the right to br ing a civil action under [ERISA].” Id . at A92.- 4 - Dr. Holbrooks filed suit and the par ties filed cross mo tions for summary judgment. 1 Sun Life argued the VA benefits we re “Other Income Benefits” because Dr. Holbrooks was entitled to them both as a result of a “Compulsory Benefit Act or Law” or a law similar to “Workers’ Co mpensation Law.” Dr. Holbrooks responded that Sun Life was precluded from “argu[i ng] that [his] VA Benefits arise under a ‘compulsory benefit act or law’ . . . [because] Sun Life did not raise this as a basis for denying Dr. Holbrooks’ claim until now .” Id . Vol. II at A248-49 (emphasis added). Substantively, Dr. Holbrooks reasserted his argument that the offset was not authorized because VA benefits were not specifically mentioned as “Other Income Benefits” in the Policy and further claimed the VA benefits were not similar to those received under “Workers’ Compensation Law.” The district court determined Sun Life had “explicitly invoked the ‘Compulsory Benefit Act or Law’ language in its . . . letter denying Dr. Holbrooks’ claim,” id . at A340, and the VA benefits were properly offset as “Other Income Benefits” under both Policy pr ovisions cited by Sun Life. This appeal followed. Discussion The parties agree we should apply a de novo standard of review. “De novo review means that we make an indepe ndent determination of the issues.” Heggy v. Heggy , 944 F.2d 1537, 1539 (10th Cir. 1991). Summary judgment is appropriate

1 Dr. Holbrooks died while his suit was pending and his wife and executor, Sarah Lynn Holbrooks, was substituted as plaintiff.- 5 - where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). We address first Dr. Holbrooks’s argum ent that Sun Life is precluded from arguing he was eligible for VA benefits pursuant to a “Com pulsory Law or Benefit.” ERISA mandates that the plan participant r eceive “adequate notice . . . setting forth the specific reasons for [a ] denial [of benefits and be] afford[ed] a reasonable opportunity . . . for a full and fair review . . . of the decision.” 29 U.S.C. § 1133. “Thus, the federal courts will consider onl y those rationales that were specifically articulated in the administ rative record as the basis for denyi ng a claim.” Spradley v. Owens-Ill. Hourly Emps. Welfare Benefit Plan , 686 F.3d 1135, 1140 (10th Cir. 2012) (internal quotation marks omitted). In the de nial letter, Sun Life explicitly stated Dr. Holbrooks’s VA benefits were considered an “Other Income Benefit” for two reasons: as a “‘Compulsory Benefit Act or Law; and/or any othe r act or law of like intent.’” Aplt. App. Vol. II at A215. This is not a situa tion where Sun Life “treat[ed] the administrative proce ss as a trial run and offer[ed] a post hoc rationale in district
court.” Spradley , 686 F.3d at 1040-41 (internal quot ation marks omitted). We therefore reject Dr. Holbrooks’s argument that Sun Life did not comply with the procedural requirements of ERISA. We turn now to the merits. First, Dr. Holbrooks argues it was error to consider his VA disability benefits as “Other Inco me Benefits” because the Policy did not specifically list them as such . We reject this argumen t because Dr. Holbrooks has- 6 - not supported it with any legal authority. See Phillips v. Calhoun , 956 F.2d 949, 953 (10th Cir. 1992) (holding that this court will not c onsider an argument that “has not been even minimally supported by legal argument or authority”). Next, Dr. Holbrooks argues that the term “Compulsory Benefit Act or Law” is ambiguous and the ambiguity should be re solved in his favor to exclude the VA benefits as “Other Income Benefits.” We disagree. “This Court has held that federal comm on law, governed by principles of trust law, governs the interpretation of an ERISA plan.” Foster v. PPG Indus., Inc. , 693 F.3d 1226, 1237 (10th Ci r. 2012) (internal quotati on marks omitted). “[W]e examine the plan documents as a whole and, if unambig uous, construe them as a matter of law. Whether . . . [a] term is ambiguous depe nds on the common and ordinary meaning as a reasona ble person in the position of the plan participant would have understood the words to mean.” Id . (citations omitted) (internal quotation marks omitted). There is nothing ambiguous about the te rm “Compulsory Benefit Act or Law.” “Compulsory” is defined as “required by a law or rule [or] having the power of forcing someone to do something.” “Compulsory” Definition, MerriamWebster.com, http://www.merr iam-webster.com/dictionary /compulsory (last visited June 26, 2014). “Veteran ’s disability benefits are nondiscretionary, statutorily mandated benefits, [which] [a] veteran is entitled to . . . upon a showing that he meets the eligibility requirements se t forth in the governing st atutes and regulations.”- 7 - Cushman v. Shinseki , 576 F.3d 1290, 1298 (Fed. Cir. 2009). Further, VA regulations establish a presumption of service connection for ALS fo r any veteran who develops ALS any time after separation from military service. See 38 C.F.R. § 3.318(a) (“[T]he development of [ALS] manifested at any time after discharge or release from active military . . . service is sufficient to establish service connection for that disease”). Because the VA was required by law to pay Dr. Holbrooks’s disability benefits, Sun Life was entitled to offset those benefits under the terms of the Policy. 2 The judgment of the distri ct court is affirmed.

Entered for the Court
Carolyn B. McHugh Circuit Judge

2 Because we affirm the district cour t’s conclusion that the VA benefits are a “Compulsory Benefit Act or Law,” we do not reach Sun Life’s alternate argument that they were received under a law similar to “Workers’ Compensation Law.”