UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-1051

N ETTIE C ASEY , A PPELLANT ,

V

.
R OBERT L. W ILKIE , S ECRETARY OF V ETERANS A FFAIRS , A PPELLEE

. On Appeal from the Board of Veterans' Appeals
(Argued April 23, 2019 Decided June 26, 2019)

Erin E. Ralston , with whom Daniel G. Krasnegor and Krystle D. Waldron , all of Glen Allen, Virginia, were on the briefs for the appellant.
Jessica K. Grunberg , with whom Catherine C. Mitrano , Acting General Counsel; Mary Ann Flynn , Chief Counsel; and Edward V. Cassidy, Jr. , Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Before DAVIS, Chief Judge , and ALLEN and MEREDITH, Judges

. ALLEN, Judge : The appellant Nettie Casey is the surviving spouse of veteran Jared D. Casey, who served the Nation honorably in the United States Air Force. 1 As we explain in detail below, the road to this appeal began when VA paid Mrs. Casey $9 1,066, the accrued benefits her husband was owed at the time of his death. There is no dispute that the amount of accrued benefits was accurate to the penny. So, one quite naturally might wonder how an entirely accurate accrued
benefits calculation could lea d to a Federal appeal. The proble m is that VA should have paid only $72,852.80 of the total accrued benefits award to Mrs. Casey. T he balance ($18,213.20) should have been paid to her attorney ac cording to a fee agreement. No one contests these facts. When VA became aware of this mistake, it paid Mrs. Casey's atto rney $18,213.20, which created an overpayment with respect to the appellant, and attem pted to recoup that amount from her. This action was designed to leave her with the 80% of the accrued benefits she was entitled to and provide her representative with the 20% he was due under th e fee agreement.

1 Record (R.) at 3, 184.2 The appellant appeals a March 22, 2017, decision of the Board o f Veterans' Appeals that found that this overpayment of $18,213.20 was properly created. This appeal, which is timely and over which the Court has jurisdiction, 2 turns on whether 38 U.S.C. § 5112(b)(10), and its implementing regulation, 38 C.F.R. § 3.500(b)(2), apply to defe at the proper creation of an overpayment in such a situation. Section 5112(b)(10) provides: "The effective date of a reductio n or discontinuance of compensation, dependency and indemnity compensation, or pension by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment." There are four operative words and phrases at issue in this cas e: "reduction"; "compensation, dependency and indemnity compensat ion, or pension"; "erroneous award"; and "based solely on administrative error." As we will explain, the key term in this statutory provision for our purposes is "reduction." If the overpayment amount of $18,213.20 is a "r eduction" in accrue d benefits, then the appellant might be able to escape recoupment of that amount if she could show that (1) "compensation, dependency and indemnity compensation, or pe nsion" includes accrued benefits; (2) there was an "erroneous award"; and (3) the erron eous award was "based solely on
administrative error." 3 After considering the statutory language, we hold that VA's rec oupment of attorney fees mistakenly paid to an accrued benefits recipient as part of the one-time payment of an accrued benefits award does not result in a "reduction." Therefore, sec tion 5112(b)(10) doesn't apply to defeat the proper creation of an overpayment here. Correspondin gly, because there was no "reduction," we need not consider whether there was an erroneou s award based solely on
administrative error. 4 So, the Court will affirm the March 22, 2017, Board decision.

I. FACTUAL AND PROCEDURAL HISTORY The parties don't dispute any of the dispositive facts. Neverth eless, we describe them in some detail to provide the foundation for our decision. Between an October 2012 VA decision

2 See 38 U.S.C. §§ 7252(a), 7266(a).

3 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2).

4 As explained below, however, the phrase "compensation, depende ncy and indemnity compensation, or pension" does not include accrued benefits.3 granting several of the veteran's claims 5 and payment of the retroactive accrued benefits award at issue in July 2013, the appellant's spouse died in January 2013

. 6 In February 2013, the appellant entered into a fee agreement w ith the current counsel of record , 7 appointed him her representative, 8 and then notified VA of this appointment in March 2013. 9 Under that fee agreement, the appellant agreed to pay counsel 20% of any award she received and specifi cally authorized and requested that VA withhold the fee from the payment of any award she was due and disburse it to counsel. 10 This is an arrangement authorized by statute and VA regulations that require VA to make such a payment to counsel as long as the regulatory requirements are s atisfied. 11 On June 12, 2013, the appellant a pplied for dependency and inde mnity compensation (DIC) and substitution. 12 Two days later, VA awarded her DIC, effective January 7, 2013. 13 In a July 5, 2013, rating decision, VA substituted the appellant int o her late husband's administrative appeal 14 and granted her claim for accrued benefits in the amount of $9 1,066. 15 VA deposited that amount in the appellant's bank account on July 8, 2013. 16 No one disputes that the amount of accrued benefits is correct. We pa use to note that there are tw o distinct VA benefits here: The grant of accrued benefits in July 2013, which was paid to the appella nt in one lump sum, and the separate grant of DIC, which is paid to the appellant monthly. We return to the distinction below. On October 15, 2014, VA wrote a letter to the appellant informi ng her that it'd received notification from her counsel that VA hadn't withheld attorney fees from the accrued benefits

5 R. at 278-84, 316-25. Though the case doesn't turn on the nature of these claims, they were various serviceconnection claims and a special monthly compensation claim. Id. These are the claims that ultimately resulted in the accrued-benefits award.

6 R. at 174.

7 R. at 134-42.

8 R. at 143-44.

9 R. at 134.

10 R. at 136.

11 See 38 U.S.C. § 5904(d); 38 C.F.R. § 14.636 (2018). See generally Snyder v. Nicholson , 489 F.3d 1213 (Fed. Cir. 2007).

12 R. at 185-94, 196-97.

13 R. at 176-79, 182-84.

14 See R. at 158.

15 R. at 158-61.

16 See R. at 10.4 payment and so proposed to create an overpayment to recoup the $18,213.20 attorney fees. 17 This recoupment would have placed the appellant and her counsel in t he positions they should have occupied if VA had properly divided the accrued benefits award. The recoupment would not have changed the amount of the accrued benefits award, which remaine d $91,066. VA informed the appellant that she could pay the fee to her lawyer directly and notify VA that she'd done so to avoid the creation of an overpayment. 18 The record doesn't indicate that the appellant ever responded to this letter, and the appellant does not suggest that she did. In two February 2015 letters, VA recapped the earlier events, m entioned it hadn't received a response from the appellant, and informed her that it had cre ated an overpayment in the amount of $18,213.20 because she owed VA a debt to account for the att orney fees it had mistakenly paid
her. 19 VA further informed her that, to recoup the attorney fees, it planned to start withholding from the monthly DIC benefits she was currently receiving and t hat she had a right to request a
waiver. 20 Although we will discuss this matter further below, it bears m entioning now that the appellant never sought a waiver of the overpayment. On September 11, 2015, the appellant disagreed with VA's creati on of an overpayment, asserting that it wasn't validly created because it arose as a result of sole VA administrative error; to support this assertion, she cited 38 C.F.R. § 3.500(b)(2). 21 On November 24, 2015, VA issued a Statement of the Case conclud ing that VA had properly created an overpayment. 22 On December 14, 2015, the appellant perfected her appeal to the Board, reiterating her prior argument. 23 In its March 22, 2017, decision, the Board found that VA had pr operly created an overpayment of accrued benefits in the amount of $18,213.20. 24 The Board reasoned that, contrary to the appellant's assertion, section 5112(b)(10) and § 3.500(b )(2) didn't apply to make the

17 R. at 122-25.

18 R. at 123.

19 R. at 103-06.

20 R. at 105-06.

21 R. at 67-72.

22 R. at 43-64.

23 R. at 35-36, 25-28.

24 R. at 12.5 overpayment creation improper because no "reduction" occurred b ecause the "appellant underwent no change in circumstances and VA did not reduce . . . any ongo ing benefit payment." 25 The Board said that, "while the VA action was clearly erroneous, the erro r was not made in relation to any reduction . . . but merely in relation to a distribution. Conse quently, it cannot be construed as the type of action[] which would lead to the improper creation of a n overpayment." 26 Even if "the erroneous distribution could be construed as involving reductio n," the Board further reasoned, the
error didn't constitute sole administrative error because the a ppellant knew or should have known that the payment was erroneous. 27 This appeal followed.

II. ANALYSIS
We must determine whether sec tion 5112(b)(10) applies in this c ase to defeat the otherwise proper creation of an overpayment. That determination requires us principally to interpret section 5112(b)(10). After employing the tools of statutory interpretat ion, we hold that no "reduction" occurred under that statutory p rovision making its terms inappl icable to the appellant. Before we turn to the meaning of section 5112(b)(10), we addres s in more detail an issue that bears on our analysis. As we noted above, the appellant re ceived two forms of benefits from
VA. The first is the accrued be nefits to which her husband was entitled, but which were unpaid at
the time of his death. 28 This is the $91,066 that the appellant was paid and the amount from which the attorney fees should have been taken. 29 The second benefit is the DIC benefits to which the appellant is independently entitled. 30 Those benefits are continuing ones that are paid monthly and from which the overpayment was recouped. 31 The question essentially is which of these benefits
is relevant for our consideration of whether there is a "reduct ion" under the statute. In this regard, we note that the appellant hasn't consistently advanced a single theory as to the purported "reduction" in this case. In her supplemental bri ef, she argued that the "reduction"

25 R. at 10-11.

26 Id. (citing 38 U.S.C.A. § 5112(b)(10); 38 C.F.R. § 3.500(b)(2)).

27 R. at 5 (citing Jordan v. Brown , 10 Vet.App. 171 (1997)), 11.

28 See R. at 158-61.

29 See id.

30 See R. at 176-79, 182-84.

31 See R. at 105-06.6 that triggers section 5112(b)(10)'s application here is VA's "r eduction" of her ongoing DIC payments. 32 In other words, she focused attention on the fact that VA was reducing her monthly
DIC payments in order to recoup the overpayment created by the accrued benefits payment error. However, in response to questioning at oral argument the appell ant's counsel made clear that the appellant's argument about section 5112(b)(10) did not, in fact , depend on the existence of the running DIC payments. 33 So, even if the appellant had only received the one-time payme nt of
accrued benefits and VA had made the same error

— failing to withhold 20% of the accrued benefits to be paid directly to her attorney

— she would make the same argument that there was a "reduction"
in accrued benefits. We agree with the appellant's concession that the fact that she happened to be receiving monthly DIC benefits is coincid ental. Once VA created the overp ayment based on the accrued benefits payment error, the DIC payment stream was merely the m eans by which to collect the overpayment. In that regard, 38 U.S.C. § 5314 permits the Secre tary to "deduct the amount of the indebtedness of any person who has been determined to be indebt ed to the United States by virtue of such person's participation in a benefits program administer ed by the Secretary from future payments made to such person under any law administered by the Secretary." 34 Under this provision and consistent with the appellant's concession at ora l argument, we will ignore the appellant's DIC payments for purposes of identifying a "reducti on" under section 5112(b)(10) and focus on whether the appellant's accrued benefits were reduced. A. Statutory Interpretation: The Basics Statutory interpretation is a pure question of law that the Cou rt reviews de novo. 35 The basics of statutory interpretation are well established. "In de termining the meaning of a statutory provision, 'we look first to its language, giving the words use d their ordinary meaning.'" 36 Of course, this focus on statutory language does not mean that oth er indications of congressional

32 Appellant's Supplemental Memorandum (Supp. Memo.) at 5.

33 Oral Argument at 15:15-17:30, Casey v. Wilkie , U.S. Vet. App. No. 18-1051 (oral argument held Apr. 23, 2019), https://www.youtube.com/ watch?v=pEtZeJ5oRWo [hereinafte r O.A.].

34 38 U.S.C. § 5314(a).

35 See Saunders v. Wilkie , 886 F.3d 1356, 1360 (Fed. Cir. 2018).

36 Artis v. District of Columbia , __ U.S. __, __, 138 S. Ct. 594, 603 (2018) (quoting Moskal v. United States , 498 U.S. 103, 108 (1990)); see Good Samaritan Hosp. v. Shalala , 508 U.S. 402, 409 (1993) ("The starting point in interpreting a statute is its language.").7 intent are off the table. As the Supreme Court recently reminde d us, considering the purposes behind a statutory scheme is a useful check on a court's interp retation of a specific statutory provision. 37 Moreover, "the statutory scheme as a whole, the specific conte xt in which [a] word or provision at issue is used, and the broader context of the stat ute as a whole" all inform any statutory provision's plain meaning. 38 Accordingly, the Court should construe a statute "so that effec t is given to all its provisions, so that no part will be inoperativ e or superfluous, void or insignificant, and so that one section will not destroy another unless the pro vision is the result of obvious mistake
or error." 39 The goal of this interpretive endeavor is to identify and impl ement Congress's purpose in enacting a given statute. 40 If, after this multifaceted exercise, we conclude that Congres s's intent is clear, we end our inquiry and give effect to that intent. 41 B. Section 5112(b)(10)'s Meaning We begin with the statutory language. To reiterate, section 511 2(b)(10) states: "The effective date of a reduction or discontinuance of compensation , [DIC], or pension by reason of an erroneous award based solely on administrative error or error i n judgment shall be the date of last payment." We will assume initially that a grant of accrued bene fits, resulting in a one-time payment of those benefits, such as occurred here, could be considered c ompensation, DIC, or pension under the statute. We will focus on whether, under the facts we confr ont, there was a "reduction" in those
accrued benefits. 42 Nowhere in title 38 (including in section 5112) did Congress de fine "reduction." Nor is there a relevant special legal definition of this term. But the se facts don't stop our plain meaning inquiry because we can look to the ordinary meaning of "reducti on." 43 "Reduction" is "the act or

37 See Hughes v. United States , __ U.S. __, __, 138 S. Ct. 1765, 1774 (2018).

38 Hornick v. Shinseki , 24 Vet.App. 50, 52 (2010); see King v. St. Vincent's Hosp. , 502 U.S. 215, 221 (1991); Imazio Nursery, Inc. v. Dania Greenhouses , 69 F.3d 1560, 1564 (Fed. Cir. 1995) (holding that all parts o f a statute must be construed together without according undue importance t o a single or isolated portion).

39 2A N ORMAN J. S INGER ET AL ., S UTHERLAND ON S TATUTORY C ONSTRUCTION § 46:6 (7th ed. 2007) [hereinafter S UTHERLAND ]; see Splane v. West , 216 F.3d 1058, 1068-69 (Fed. Cir. 2000).

40 See Am. Tobacco Co. v. Patterson , 456 U.S. 63, 68 (1982) ("[W]e assume 'that the legislative pu rpose is expressed by the ordinary meaning of the words used.'" (quoting Richards v. United States , 369 U.S. 1, 9 (1962))).

41 Chevron U.S.A., Inc. v. Natu ral Res. Def. Council, Inc. , 467 U.S. 837, 842-43 (1984).

42 At oral argument, the appellant argued that the purported "red uction" happened retroactively to the payment of accrued benefits. O.A. at 16:30-18:10.

43 See Prokarym v. McDonald , 27 Vet.App. 307, 310 (2015) ("In the absence of an express de finition, words8 process of reducing," and "reducin g" in turn is defined most re levantly as "to diminish in size, amount, extent, or number." 44 As explained below, although section 5112 allows VA to retroactively reduce how much a claimant was entitled to receiv e in specified circumstances, there is no dispute here that the accrued benefits calculation was co rrect. The question is whether the one-time lump sum payment could later be "reduced." Contrary to the appellant's argument, 45 VA can't diminish a one-time accrued-benefits payment in size or a mount retroactively. What VA paid, it paid; VA can't change the past. What it can do is recover any excessive amount it paid. Nor is a grant of benefits diminished in size or amount simply because t he total benefit must be apportioned and paid to two parties. 46 The fact that VA could recover part of an excessive payment m ade by mistake doesn't mean that the initial grant itself was reduced. Because neither the payment nor the initial grant of appellant's accrued benefits was reduced, we h old that section 5112(b)(10) doesn't apply here. This plain reading of "reduction" is reinforced when we conside r the specific statutory mechanism by which VA pays attorney fees from such one-time pay ments as accrued benefits, 38 U.S.C. § 5904(d). As the Secretary explains, 47 when VA pays attorney fees under section 5904(d), it doesn't reduce the amount of accrued benefits; it allocates the payment to different

payees. 48 The amount of benefits that resulted in such a one-time paymen t doesn't change when VA pays attorney fees under section 5904(d) out of the appellan t's accrued benefits. 49 In no

event

— whether VA correctly paid the attorney fees in the first instan ce or failed to do so and

are given their ordinary meaning.").

44 See M ERRIAM -W EBSTER , https://www.merriam-webster.com/dictionary (last visited May 23, 2019).

45 O.A. at 16:30-18:10.

46 See In re Fee Agreement of Smith , 4 Vet.App. 487, 495 (1993) (explaining that, "[w]here a claim ant and an attorney have entered into a [section] 5904(d) contingency f ee agreement, the claimant and the attorney share a joint entitlement to the fund of any past-due benefits awarded with the exact amount of each's entitlement governed by the fee agreement," and that, where the Secretary mistakenly pays the entire amount of the award to the claimant, he "may seek to recoup the amount of the overpayment from the r ecipient to whom it was mistakenly paid, and the recipient is free to seek a waiver of the collection of the ove rpayment if such collection would be against equity and good conscience

. "), vacated on other grounds by In re Wick , 40 F.3d 367 (Fed. Cir. 1994).

47 Secretary's Supp. Memo. at 4-5.

48 Id. at 4 (citing R. at 136 (fee agreement authorizing VA to "withh old such payment [of attorney fees] from any award . . . and to disburse the same to Attorney")).

49 Id. (citing In re Smith , 4 Vet.App. at 495-96 (noting, "[b]y statute, the fee agreemen t serves to divide and define the fund of past-due benefits," and the Secretary may re coup an overpayment "from the one to whom it was mistakenly paid")).9 sought to recoup the fees (as it did here)

— would we describe the appellant's accrued benefits as subject to a "reduction" under section 5112(b)(10). To hold oth erwise would stretch the common meaning of "reduction." Section 5112 read as a whole also supports our interpretation o f the specific statutory term "reduction." To start, consider section 5112's heading: "Effect ive dates of reductions and discontinuances." "Although section headings cannot limit the p lain meaning of a statutory text, they supply cues as to what Congress intended." 50 In this case, the relevant section heading primarily demonstrates that Congress intended to focus on timin g, specifically when a reduction or discontinuance should go into effect. The subject of the sta tute's text itself also is "effective date," which further emphasizes this focus on timing

— that is, when a reduction or discontinuance in a benefit will take place. We'll recall this focus on timing in our discussion of section 5112(b)(10)'s legislative history below, but in short, timing m atters for running award payments, not one-time payments. With running award payments over time, i t is quite important to determine when a reduction will take place because there are multiple pay ment dates on which such a reduction could be implemented. But, as noted above, a one-time payment cannot be undone in the literal sense. Further, even though no one argues that a di scontinuance occurred here, Congress's inclusion of discontinuances along with reductions i n the same sentence of the statute is meaningful because, if a benefit is subject to a dis continuance , it seems natural to assume that
the benefit was continuing before dis continuance. This context sugg ests that Congress intended the statute to apply to running award payments as opposed to on e-time payments because "a onetime payment cannot have its continuity broken." 51 Next, section 5112(b) specifies that it applies to "a reduction . . . of compensation, [DIC], or pension." The Court notes that each of these benefits is pai d monthly; in other words, each is a running award. This word choice implicates a well-known maxim o f statutory construction: the expression of one thing implies the exclusion of others. 52 Congress listed "compensation, [DIC], or pension," and not "accrued benefits," as possible subjects o f a reduction under this statute.

50 Merit Mgmt. Grp., LP v. FTI Consulting, Inc. , __ U.S. __, __, 138 S. Ct. 883, 893 (2018) (citations and internal quotation marks omitted).

51 Secretary's Supp. Memo. at 3.

52 See N.L.R.B. v. SW Gen., Inc. , __ U.S. __, __, 137 S. Ct. 929, 940 (2017).10 Accrued benefits are conceptually distinct from compensation, D IC, or pension benefits. "Accrued benefits" are elsewhere defined as "periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by the Secretar y to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date
of death." 53 At minimum, this exclusion makes us skeptical that Congress in tended section 5112 to apply when a purported "reduction" happens with respect to a ccrued benefits. Congress defined "compensation," 54 "dependency and indemnity compensation," 55 and "pension," 56 all as "monthly payment[s]." 57 Relatedly, when Congress used the term "compensation" in other statutory sections within title 38, it implied the word "monthly," 58 which corresponds to its common, ordinary meaning as shorthand for a running award of disability compensa tion paid monthly. Altogether, this is another indication that Congress intended only running award payments, not one-time accrued benefits payments, to be subject to a purported "reduct ion" under section 5112. 59 Last of contextual indicia of congressional intent in the provi sion as whole, section 5112(b)'s subparts (1) through (10) discuss various triggering events for a "reduction or discontinuance": all begin with the phrase "by reason of" follo wed by different events, such as marriage or a change in income, t hat could affect a recipient. 60 Subparts (1) through (10) all also describe the particular day that will serve as the effective da te in terms of the triggering event. For example, when a recipient gets married, the effective date of a reduction or discontinuance "by reason of" that marriage is the last day of the month before th at marriage occurs. 61 This pattern

53 38 U.S.C. § 5121(a).

54 38 U.S.C. § 101(13).

55 38 U.S.C. § 101(14).

56 38 U.S.C. § 101(15).

57 "Pension" is "a monthly or other periodic payment." Id.

58 See, e.g. , 38 U.S.C. § 1114 (setting rates for wartime disability "monthly compensation" where the title said only "rates for wartime disability compensation," leaving out the word "monthly," which then appears in the statute's text).

59 We express no opinion as to whether section 5112 applies in th e context of an award of compensation, DIC, or pension that results in both a one-time retroactive payment of past-due benefits and recurr ing monthly benefits. Cf. Nolan v. Nicholson , 20 Vet.App. 340, 348 (2006) (noting that "retroactive awards of disability compensation benefits are considered 'periodic monetary benefits,' even thou gh the actual payment of retroactive benefits is made in a one-time lump sum payment" (quoting 38 U.S.C. § 5121)).

60 38 U.S.C. § 5112(b).

61 38 U.S.C. § 5112(b)(1).11 leads us to expect a similar relationship between the effective date and triggering event at issue in our case, but we hit a snag when we try to apply section 5112(b )(10) to a one-time accrued benefits payment. Remember, section 5112(b)(10) says that "[t]he effecti ve date of a reduction or discontinuance of compensation, [DIC], or pension by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment." 62 Based on the pattern found in the earlier subparts, here too we would expect Congress to have derived the effective date from the triggering event

— in this case, the date of last payment and an erroneous award based solely on administrative error or error in judgment . We would expect the effective
date to be the date of last payment of the erroneous award . But, here, there is only a single payment of accrued benefits, no more the last than the first. Congress' s "last payment" phrasing implies that, when crafting section 5112(b)(10), Congress assumed that there would be more than one benefit payment made. We so construe section 5112(b)(10) to give effect to its word choice, so that its use of "last" isn't rendered superfluous or insignificant when we c an give it meaning. 63 Therefore, we have yet another indication that Congress intended only running award payments, not one-time payments, to be subject to a purported "reduction" under sectio n 5112. Legislative history complements these textual indicia of Congre ss's intent and the meaning
of "reduction." 64 It reveals that Congress's focus on timing (recall our "effect ive date" discussion above) in section 5112(b)(10) was its policy solution to the pr oblem of balancing innocent parties'
interests

— running-award recipients' interests versus the taxpayers' inter ests

— in the wake of sole VA error. However, as we'll see, section 5112's solution to add ress errors that affect running awards is not one-size-fits-all; it's simply inapplicable to er roneous one-time accrued benefits payments. Congress intended section 5112(b)(10) "to include cases in whic h an erroneous action was predicated on a misunderstanding of existing instructions or re gulations or the applicable construction of statute. Thus, while no overpayment would be cr eated requiring recovery, there

62 38 U.S.C. § 5112(b)(10) (emphasis added).

63 See S UTHERLAND § 46:6; see also Splane , 216 F.3d at 1068-69.

64 See Glaxo Operations UK Ltd. v. Quigg , 894 F.2d 392, 395 (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.'" (emphasis added by Glaxo court) (quoting Madison Galleries, Ltd. v. United States , 870 F.2d 627, 629 (Fed. Cir. 1989))).12 would be no perpetuation of the erroneous action." 65 This rationale indicates that Congress had only running award payments, not one-time payments, in mind whe n crafting section 5112(b)(10). The second sentence's structure hints that Congress sought to b alance inequities inevitably born by two innocent populations, faultless recipients of runni ng awards and taxpayers. Let's start with benefits recipients. Recipients of running awards, who rec eive monthly benefits checks, may depend solely or mostly on their VA benefits to live month-to-m onth, and Congress seemingly thought it unjust for these people to take on liability for ret urning past overpayments that had been accruing monthly because of mistakes they didn't make or cause. However, these concerns that Congress seemingly had in mind at the time of section 5112(b)(1 0)'s enactment don't translate well into the context of one-time accrued benefits payments. With a one-time payment, which often represents years' worth of accrued benefits, there's no (or cer tainly less) chance that overpayment recovery could unjustly impact a recipient's day-to-day finance s. 66 In other words, recipients of one-time payments aren't similarly situated to recipients of ru nning award payments. Thus, they don't require the same protections, and it doesn't appear to us that Congress was crafting section 5112(b)(10) to protect one-time payment recipients. Nevertheles s, section 5112(b)(10)'s inapplicability to a recipient of a one-time, accrued benefits payment such as the appellant doesn't mean that Congress left those recipients totally unprotected; t hey can still seek waivers, a subject
to which we return in a moment. 67 Now let's consider taxpayers, the other innocent population imp licated in an overpayment caused by VA. By aiming to stop the erroneous action's perpetuation , Congress baked a telling premise into its rationale: but for VA's implementation of a re duction or discontinuance, the "erroneous action" at issue would persist indefinitely. 68 And such perpetuation would impose

65 S. R EP

. N O . 87-2042 (1962), reprinted in 1962 U.S.C.C.A.N. 3260, 3266-67 (emphasis added) (explanatory statement of H.R. 7600); see H.R. R EP

. N O . 87-2123 (1962), not reprinted in U.S.C.C.A.N.

66 Cf. Reizenstein v. Shinseki , 583 F.3d 1331, 1337 (Fed. Cir. 2009) (holding that the purpos e of 38 C.F.R. § 3.343(a), to "protect veterans who are dependent on the month ly compensation that accompanies their total disability rating from a sudden and arbitrary reduction in their benefits that could jeopardize their ability to pay for day-to-day necessities," was not a relevant concern in the context of stag ed ratings because "the money awarded for a staged rating is compensation for a past period of disability and is i ndependent of the veteran's entitlement to continuing benefits, and is thus significantly less likely to be the veter an's only source of funds for paying current and on-going expenses").

67 See 38 U.S.C. § 5302.

68 "Perpetuate" means "to make perpetual or cause to last indefin itely," and "perpetual" means "continuing forever; occurring continually; indefinitely long-continued." M ERRIAM -W EBSTER , https://www.merriam-13 indefinitely lasting liability on taxpayers for the overpayment s, which Congress sought to curb with a simple correction device. Congress's solution easily app lies to and makes sense in the context of running award payments. But if we consider this "sol ution" instead in the context of an error in a one-time payment, we have a square-peg-round-hole si tuation. We wouldn't characterize VA's failure to withhold attorney fees in this case as an error persisting indefinitely, month after month, but for a "reduction." Describing VA's failure as a disc rete, one-time error, correctable via the creation of an overpayment, is much more natural. In sum, l egislative history supports our conclusion that section 5112(b)(10)'s protection wasn't meant t o address the appellant's situation. 69 The conclusion we reach in this matter may seem harsh. Looking just at section 5112, one might think that we have interpreted the law in such a way as t o reach an absurd result, something
we must avoid. 70 Why would Congress leave someone such as the appellant without protection? The answer is that Congress did no such thing. As we have expla ined, Congress provided protection in section 5112 for a certain type of situation, the reduction or discontinuance of certain VA benefits that are paid monthly. But it provided a far more g eneral type of protection for all benefits recipients who are the subject of the creation of an o verpayment, what we have alluded to briefly elsewhere: waiver. 71 Protecting all benefit payees, Congress provided in relevant pa rt: "There shall be no recovery of payments or overpayments (or any interest thereon) of any benefits under any of the laws administered by the Secretar y whenever the Secretary deter mines that recovery would be against equity and good conscience . . . ." 72 Thus, there is no absurdity in interpreting section 5112 to be inapplicable to the appellant's situation. Congress there was concerned with a subset of the population that could be affected by an erroneous VA action

— recipients of running award payments. But for all persons subject to repayment of an obliga tion, Congress provided section 5302. As the appellant's counsel stated at oral argument, the a ppellant consciously chose not to

webster.com/dictionary (last visited May 23, 2019).

69 The appellant discusses section 5112's legislative history as if one of Congress's purposes was to teach VA lessons. See Appellant's Response at 2. But n othing in the legislative histo ry indicates such a purpose. Congress in no way hints that it had punishment of VA in mind when it wrote a law administering VA benefits.

70 See Atencio v. O'Rourke , 30 Vet.App. 74, 83 (2018).

71 See 38 U.S.C. § 5302.

72 38 U.S.C. § 5302(a).14 seek waiver and to proceed only under section 5112. 73 Such a choice based on advice of counsel
does not render the result here abs urd as a matter of statutory interpretation. In sum, we hold that section 5112(b)(10) doesn't apply in the a ppellant's case so as to make VA's creation of an overpayment improper because no "reduction" of "compensation, [DIC], or pension" as contemplated by section 5112(b)(10) occurred. The p lain meaning of section 5112(b)(10)'s surrounding text, statutory context, and legislat ive history all support this conclusion. Because there was no reduction of an ongoing monthl y benefit, we need not consider whether there was an erroneous award or whether, as the appella nt argues, the overpayment was solely the result of administra tive error. Moreover, contrary to the appellant's framing of the issues, 74 the Board's reasons or bases were adequate here; we can review this Board decision effectively and think the Board explained its actions sufficien tly to enable the appellant to understand its precise bases for c oncluding that the overpaymen t was properly created. 75

III. CONCLUSION After consideration of the parties' briefs, oral argument, the record on appeal, and the governing law, the Court AFFIRMS the March 22, 2017, Board deci sion.

73 O.A. at 55:58-58:27.

74 See generally Appellant's Initial Brief.

75 See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski , 1 Vet.App. 49, 57 (1990).