United States Court of Appeals 

for the Federal Circuit ______________________ 

DONALD L. MULDER,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2014-7137

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 12-1222, Judge Lawrence B. 

Hagel, Judge Margaret C. Bartley, Judge William A. 

Moorman.

______________________ 

Decided: November 12, 2015

______________________ 

 

TRAVIS JAMES WEST, Pia Anderson Dorius Reynard & 

Moss, Milwaukee, WI, argued for claimant-appellant.

EMMA BOND, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent-appellee. Also represented by 

JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., MARTIN F.

HOCKEY, JR.; Y. KEN LEE, AMANDA BLACKMON, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC.
2 MULDER v. MCDONALD

______________________ 

Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.

CHEN, Circuit Judge.

This case arises from a decision by the Department of 

Veterans Affairs (VA) reducing the disability compensation of Donald L. Mulder (Mr. Mulder) after he was incarcerated as a result of a felony conviction. The Board of 

Veterans’ Appeals (Board) found that, under 38 U.S.C. 

§ 5313(a)(1), the VA properly determined the date on 

which Mr. Mulder’s benefits should be reduced. The 

United States Court of Appeals for Veterans Claims 

(Veterans Court) affirmed, Mulder v. Gibson, 27 Vet. App. 

10 (2014), and Mr. Mulder appealed. For the reasons set 

forth below, we agree with the Veterans Court that the 

VA should use the date on which Mr. Mulder pleaded 

guilty and was convicted when calculating the date on 

which to reduce his benefits. 

BACKGROUND

I 

Mr. Mulder served in the United States Army for 

three separate periods between 1982 and 1994, collectively accumulating approximately two years of honorable 

service. In 1998, the VA issued a decision assigning Mr. 

Mulder a 50% disability rating for two service-connected 

conditions. 

In 2005, Mr. Mulder was arrested and charged with

two felony counts. On July 11, 2005, at his initial appearance in Wisconsin Circuit Court for Milwaukee 

County, the judge set Mr. Mulder’s bail at $750,000.00. 

Because Mr. Mulder was unable to post bail, he remained 

in custody pending trial. 

On May 19, 2006, Mr. Mulder pleaded no contest to 

one of the two felony charges and the State of Wisconsin 
MULDER v. MCDONALD 3

dismissed the second. That same day, the court found 

him guilty and ordered that judgment of conviction be 

entered on the record. The court then remanded Mr. 

Mulder into custody and scheduled his sentencing hearing. 

On June 16, 2006, the court sentenced Mr. Mulder to 

a prison term of fourteen years, six months. The court 

ordered that Mr. Mulder would serve an initial term of 

confinement of eight years, six months, followed by six 

years of supervised release. In addition, the court gave 

Mr. Mulder credit for the 384 days he was in custody

awaiting the conclusion of his criminal proceedings. The 

court then entered judgment of conviction listing this 

sentence and specifying May 19, 2006, as the “Date(s) 

Convicted.” Joint Appendix (J.A.) 198.

II

The VA has a statutory obligation to reduce benefits 

payments if the recipient is “incarcerated in a Federal, 

State, local, or other penal institution or correctional 

facility for a period in excess of sixty days for conviction of 

a felony.” 38 U.S.C. § 5313(a)(1). If the recipient’s disability rating exceeds 20%, § 5313(a)(1)(A) requires that 

the compensation is reduced to 10%. See 38 U.S.C. 

§ 1114(a). The reduction in compensation “begin[s] on the 

sixty-first day of such incarceration and end[s] on the day 

such incarceration ends.” 38 U.S.C. § 5313(a)(1).

In July 2007, as required by § 5313(a)(1), the VA sent 

a letter to Mr. Mulder explaining that his felony conviction and resulting incarceration required the VA to reduce 

the amount of Mr. Mulder’s disability compensation. The 

letter notified Mr. Mulder that the reduction would be 

effective on July 19, 2006, the sixty-first day following his 

May 19, 2006 felony conviction. The letter also stated 

that Mr. Mulder’s disability benefits could be restored to 

his original 50% rating after he was no longer incarcerated. 
4 MULDER v. MCDONALD

Mr. Mulder responded to the VA by objecting to the 

reduction and asserting that his sentence had been vacated. In fact, while Mr. Mulder had pursued various forms 

of post-conviction relief, these proceedings resulted only in 

minor re-calculations of his sentence. Although each recalculation required his sentence to be vacated and reimposed, Mr. Mulder’s no contest plea and corresponding 

conviction were neither reversed nor vacated, and he was 

not released from incarceration. Accordingly, the VA 

implemented the proposed rating reduction. 

III

Mr. Mulder filed a Notice of Disagreement and ultimately appealed to the Board. The Board found that July 

19, 2006, was the sixty-first day after Mr. Mulder entered 

his no contest plea and was found guilty, and thus was 

the correct date for the VA to reduce Mr. Mulder’s benefits. 

Mr. Mulder appealed to the Veterans Court, arguing 

that the causal link between his incarceration and his 

felony conviction did not exist until he was sentenced to a 

term of imprisonment. According to Mr. Mulder, before 

his sentence was imposed, he was incarcerated under the 

Wisconsin bail statute, Wis. Stat. § 969.01, rather than

“for conviction of a felony,” as required by § 5313(a)(1). In 

other words, Mr. Mulder argued that between his 2005 

arrest and his June 16, 2006 sentencing hearing, he was 

incarcerated solely because he was unable to post bail. 

Mr. Mulder thus asserted that his compensation should 

not have been reduced until the sixty-first day after the 

June 16, 2006 sentencing hearing, which was twentyeight days after he pleaded guilty. 

The Veterans Court rejected this argument. Specifically, the Veterans Court determined that § 5313(a)(1) 

imposed four elements that must be met before the VA 

must reduce a veteran’s compensation: “(1) incarceration 

in a penal institution; (2) for a period in excess of 60 days; 
MULDER v. MCDONALD 5

(3) a conviction; and (4) a felony.” Mulder v. Gibson, 27 

Vet. App. at 14. The Veterans Court concluded that when 

Mr. Mulder pleaded no contest, each of these four elements was present. The Veterans Court therefore rejected Mr. Mulder’s arguments and affirmed the VA’s 

decision to base the effective date for the reduction of Mr. 

Mulder’s benefits on the date of his no contest plea. Mr. 

Mulder appealed to this court. 

DISCUSSION

Our review of appeals from the Veterans Court is limited by statute to determining “the validity of a decision of 

the [Veterans Court] on a rule of law or of any statute or 

regulation . . . or any interpretation thereof . . . .” 38 

U.S.C. § 7292(a). We review the Veterans Court’s interpretation of a statute de novo. Sursely v. Peake, 551 F.3d 

1351, 1354 (Fed. Cir. 2009). We must also decide “all 

relevant questions of law” and will “set aside any regulation or any interpretation thereof (other than a determination as to a factual matter)” relied upon in the decision 

of the Veterans Court that we find “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, 

privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required 

by law.” 38 U.S.C. § 7292(d)(1).

I 

Statutory interpretation begins with the words of the 

statute. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 

450 (2002). “The first step is to determine whether the 

language at issue has a plain and unambiguous meaning 

with regard to the particular dispute in the case.” Id.

(internal quotation marks omitted). This inquiry “ceases 

if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Id. (internal 

quotation marks omitted). 
6 MULDER v. MCDONALD

The VA reduced Mr. Mulder’s disability compensation 

pursuant to 38 U.S.C. § 5313(a)(1),1 which provides that 

any person who is entitled to compensation or to 

dependency and indemnity compensation and who 

is incarcerated in a Federal, State, local, or other 

penal institution or correctional facility for a period in excess of sixty days for conviction of a felony 

shall not be paid such compensation or dependency and indemnity compensation, for the period beginning on the sixty-first day of such incarceration 

and ending on the day such incarceration ends, in 

an amount that exceeds . . . in the case of a veteran with a service-connected disability rated at 20 

percent or more, the rate of compensation payable 

[for a service-connected disability rated ten percent] . . . .

Thus, according to the plain language of the statute 

the VA must reduce a veteran’s compensation when the 

veteran is (1) “incarcerated in a . . . penal institution”; 

(2) “for a period in excess of sixty days”; (3) “for conviction 

of”; (4) “a felony.” Mr. Mulder concedes that the offense to 

which he pleaded no contest was a felony under Wisconsin 

law. Mr. Mulder also does not dispute that his no contest 

1 The VA implemented this statute in 38 C.F.R. 

§ 3.665. Because we rely only on the plain language of the 

statute, we need not consider whether this regulation is 

entitled to deference. See Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). 

Further, as both parties recognize, however, the regulation essentially “parrots” the statutory language; it does 

nothing to interpret or elaborate. As such, any interpretation of this regulation by the VA is not entitled to 

deference. See Haas v. Peake, 525 F.3d 1168, 1186–87 

(Fed. Cir. 2008). We therefore refer only to the statutory 

language appearing in 38 U.S.C. § 5313(a)(1).

 
MULDER v. MCDONALD 7

plea constitutes a conviction. Instead, Mr. Mulder argues 

that the VA erroneously calculated the date on which his 

benefits should be reduced based on his conviction date, 

rather than using the date of his sentencing. To that end, 

Mr. Mulder contends that the necessary causal link 

between his incarceration and felony conviction was not 

present until he was actually sentenced to a term of 

imprisonment exceeding sixty days. Thus, to resolve this 

appeal, we need determine only whether Mr. Mulder was 

“incarcerated . . . for conviction of a felony,” beginning on 

the date he pleaded guilty, as the VA contends, or whether the requisite causal link was absent until the date of 

his sentencing, as Mr. Mulder contends. 

In considering whether we should read the word “conviction” in § 5313(a)(1) to mean “sentencing,” we must 

examine the statutory language. Because the word 

“sentencing” does not appear in the statutory language, 

we must determine whether it should be implied here. 

We recently considered a similar argument in Wilson v. 

Gibson, 753 F.3d 1363, 1366–67 (Fed. Cir. 2014), where 

an incarcerated veteran argued that his benefits could not 

be reduced until the sixty-first day after his “final” conviction—i.e., the date when he had exhausted his appellate 

and habeas corpus rights. In Wilson, we observed that

the statute used the word “conviction,” not “final conviction.” We then concluded that this distinction required us 

to reject the appellant’s contention that § 5313(a)(1)’s 

reduction of disability compensation could proceed only 

after “the conviction bec[ame] final in state courts, or 

after complete exhaustion of post-conviction review opportunities.” Id. at 1367. Similarly, in the present case, we 

decline to equate the word “sentencing” with the statutory 

term “conviction,” and reject Mr. Mulder’s interpretation 

of the statute. 

Supporting our reading is the fundamental canon of 

statutory construction that, “unless otherwise defined, 

words will be interpreted as taking their ordinary, con-
8 MULDER v. MCDONALD

temporary common meaning.” Perrin v. United States, 

444 U.S. 37, 42 (1979). The language of § 5313(a)(1) 

plainly specifies the “conviction” date is the date on which 

the statutory sixty-day clock begins. As we recognized in 

Wilson, the word “conviction” is understood as “[t]he act 

or process of judicially finding someone guilty of a crime; 

the state of having been proved guilty.” 753 F.3d at 1367 

(quoting Black’s Law Dictionary 358 (8th ed. 2004)). The 

Supreme Court has also equated a guilty plea, such as 

Mr. Mulder’s no contest plea, with a conviction: “A plea of 

guilty differs in purpose and effect from a mere admission 

or an extrajudicial confession; it is itself a conviction. 

Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and 

sentence.” Dickerson v. New Banner Inst., Inc., 460 U.S. 

103, 112–13 (1983) (quotation marks and citation omitted).2 A “sentence,” on the other hand, is ordinarily 

understood as “[t]he judgment that a court formally 

pronounces after finding a criminal defendant guilty” or 

“the punishment imposed on a criminal wrongdoer.” 

Black’s Law Dictionary 1485 (9th ed. 2009). Thus, according to its ordinary meaning, a “conviction” occurs when 

the accused is found—or pleads—guilty; the convicted 

felon’s “sentencing” is separate and distinct from the 

2 In Dickerson, the Supreme Court concluded that a 

state’s expungement of a felony conviction had no bearing 

on the underlying conviction’s effect on an individual’s 

ability to maintain a federal license to manufacture or sell 

firearms under 18 U.S.C. § 922(g). 460 U.S. at 119–20. 

Congress overruled this outcome in the Firearms Owners’ 

Protection Act, Pub. L. 99-308, 100 Stat. 449, by providing 

that a conviction expunged under state law would not 

prevent an individual from maintaining such a license 

under § 922(d) or from possessing a firearm under 

§ 922(g). See Logan v. United States, 552 U.S. 23, 27–28 

(2007).

 
MULDER v. MCDONALD 9

determination of guilt. Just as in Wilson, where we held

the plain language of § 5313(a)(1) did not support reading 

“conviction” as a final, post-exhaustion of appeals conviction, here, there is likewise no basis for interpreting 

“conviction” to mean conviction and sentencing. Congress, could have, but did not, draft § 5313(a)(1) to reduce 

benefits post-sentencing or post-exhaustion of appeals. 

See, e.g., 10 U.S.C. § 12312(a)(2) (providing for involuntary release from military service if a service-member “is 

convicted and sentenced to confinement . . . and the sentence has become final” (emphasis added)). Such specificity is absent here.

A 

To overcome the plain meaning of § 5313(a)(1), Mr. 

Mulder relies on Wisconsin’s bail statute. Entitled

“[e]ligibility for release,” section 969.01 of the Wisconsin 

Statutes authorizes a court to release a criminal defendant from custody under certain conditions. Mr. Mulder 

argues that from the time he was arrested until the day 

he received a sentence including a term of imprisonment, 

he was incarcerated solely pursuant to section 969.01. 

Namely, when Mr. Mulder was first arrested, he was 

unable to pay the $750,000.00 bail set by the judge, and 

thus remained in custody under section 969.01. After the 

judge accepted his no contest plea and found him guilty, 

he remained in custody pending sentencing because he 

still was unable to make bail. Therefore, according to Mr. 

Mulder, until he was sentenced to a term of imprisonment, he was not incarcerated based on his felony conviction, but was in fact incarcerated because of his inability 

to post bail. 

We disagree. Mr. Mulder’s explanation of how Wisconsin’s bail statute operates is insufficient to persuade 
10 MULDER v. MCDONALD

us to abandon the plain language of § 5313(a)(1).3 The 

statutory language does not require that the conviction be 

the sole reason that the individual is incarcerated. We 

recognize that, under section 969.01, Mr. Mulder could 

have been released with conditions while awaiting sentencing for his felony conviction.4 The fact remains, 

however, that without Mr. Mulder’s May 19, 2006 conviction, there would be no authority for his continued incarceration and his inability to make bail would be

irrelevant. In this way, Mr. Mulder’s May 19, 2006 conviction is certainly one of the reasons, even if not the sole 

reason, for his remaining in custody. The mere possibility 

of release does not break the causal link between Mr. 

Mulder’s immediate incarceration following his convic3 The parties dispute whether Wisconsin law applies to determine whether incarceration and the felony 

conviction are adequately linked. We doubt that Congress 

intended the causation analysis to turn on state law. See 

Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 

43 (1989) (“We start, however, with the general assumption that in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making 

the application of the federal act dependent on state law.”

(internal quotation marks omitted)). Nevertheless, because we conclude that even the Wisconsin bail statute 

cannot alter the plain meaning of § 5313(a)(1), we need 

not decide whether Congress intended us to look to state 

law. 

4 We also note that, if Mr. Mulder had been released pending sentencing under section 969.01(2), we 

would be confronted with a different question that we 

need not decide today. Under those facts, we would need 

to determine whether the “incarceration” element of 

§ 5313(a)(1) was met and whether the VA was therefore 

required to wait until Mr. Mulder was later incarcerated 

after sentencing to begin the sixty-day clock.

 
MULDER v. MCDONALD 11

tion. In fact, after accepting Mr. Mulder’s guilty plea, the 

court immediately “ordered defendant REMANDED into 

custody . . . .” J.A. 194. 

B 

Even though the statutory language is unambiguous 

and we need not consult the legislative history, that

history nevertheless confirms our conclusion. Congress 

enacted § 5313 as part of the Veterans’ Disability Compensation and Housing Benefits Amendments of 1980. At 

that time, the principal sponsor of the bill explained that

the purpose of compensation is to replace the lost 

earning capability of a disabled veteran where the 

impairment is caused by a service-connected condition. I do not consider it unreasonable to recognize that individuals who are confined by our 

judicial system for commission of a serious offense 

against society are no longer available to the labor 

market. An economic detriment caused by a disability is not felt by such individuals during long 

periods of confinement.

126 Cong. Rec. 26,118 (1980) (statement of Rep. Montgomery). In light of the purpose behind providing disability compensation, Congress did not “see the wisdom” in 

providing substantial benefits to disabled veterans “when 

at the same time the taxpayers of this country are spending additional thousands of dollars to maintain these 

same individuals in penal institutions.” Id.; see also 126 

Cong. Rec. 26,122 (1980) (statement of Rep. Wylie) (“In 

the case of imprisonment, when a prisoner is being fully 

supported by tax dollars that fund the penal institution, it 

becomes ludicrous to continue payment of benefits designed to help him maintain a standard of living.”). 

Indeed, both this court and the Veterans Court have 

previously acknowledged this congressional purpose. See 

Snyder v. Nicholson, 489 F.3d 1213, 1215 (Fed. Cir. 2007) 
12 MULDER v. MCDONALD

(“Congress recognized that [incarcerated] veterans were 

receiving benefits that were not offset to account for 

expenses, such as room and board, that were provided by

the prisons.”); Wanless v. Shinseki, 23 Vet. App. 143, 148 

(2009), aff’d, 618 F.3d 1333 (Fed. Cir. 2010) (“Congress 

has explicitly concluded that if taxpayers are financing a 

veteran’s incarceration, it is contrary to the public good to 

also pay him full VA disability benefits.”).

These congressional statements further demonstrate 

that Congress’s intent is best served by using the date on 

which the veteran was found guilty as the start date for 

the VA to calculate when the veteran’s benefits will be 

reduced. Assuming the veteran is placed in custody after 

being found guilty of a felony, using the conviction date, 

rather than the later sentencing date, best achieves 

Congress’s objective of preventing taxpayers from paying 

twice for such a veteran’s living expenses. 

C 

Mr. Mulder also asserts that our interpretation of 

§ 5313(a)(1) unfairly penalizes those veterans who lack 

the financial means to post bail. Mr. Mulder overlooks 

the fact that a criminal defendant who is later sentenced 

to a term of imprisonment will receive credit towards this 

term of imprisonment for incarceration during the criminal proceedings. See Wis. Stat. § 973.155(1)(a) (“A convicted offender shall be given credit toward the service of 

his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was 

imposed.”); 18 U.S.C. § 3585(b) (“A defendant shall be 

given credit toward the service of a term of imprisonment 

for any time spent in official detention prior to the date 

the sentence commences . . . .”). Accordingly, a veteran 

who is incarcerated prior to sentencing will generally be 

released earlier than if the veteran was not incarcerated 

until after sentencing. Any perceived inequity is remedied by the earlier resumption of benefits that accompa-
MULDER v. MCDONALD 13

nies an earlier release from incarceration. See 

§ 5313(a)(1) (providing that the reduction in disability 

benefits “end[s] on the day such incarceration ends”). 

II

Finally, Mr. Mulder asserts that the VA violated its 

Duty to Notify and Assist by failing to adequately investigate Mr. Mulder’s assertions that his sentence has been 

vacated. Although Mr. Mulder did inform the VA that his 

sentence was repeatedly vacated during his postconviction proceedings, he never claimed—nor could he 

have—that his conviction had been overturned or that he 

had been released from custody. In fact, each of his 

letters to the VA originated from a correctional facility. 

In any event, changes in sentence do not warrant resumption of benefits under § 5313(a)(1). A veteran’s compensation reduction does not end until the incarceration ends. 

The VA therefore had no obligation to conduct any further 

investigation. See Robinson v. Shinseki, 557 F.3d 1355, 

1361 (Fed. Cir. 2009) (holding that the VA’s obligation to 

assist and read filings in a liberal manner does not extend 

to “claims which have no support in the record”).

CONCLUSION

We have considered the remaining arguments and 

find them without merit. For the reasons stated above, 

the plain language of § 5313(a)(1) cannot support Mr. 

Mulder’s proposed interpretation. Thus, the judgment of 

the Veterans Court is affirmed.

AFFIRMED 

COSTS

No costs.