UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

No. 18-1051 

NETTIE CASEY, APPELLANT, 

V. 

ROBERT L. WILKIE, 

SECRETARY OF VETERANS AFFAIRS, APPELLEE. 

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 $91,066, 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 lead to a Federal appeal. The problem is that VA should have paid only 

$72,852.80 of the total accrued benefits award to Mrs. Casey. The balance ($18,213.20) should 

have been paid to her attorney according to a fee agreement. No one contests these facts. 

When VA became aware of this mistake, it paid Mrs. Casey's attorney $18,213.20, which 

created an overpayment with respect to the appellant, and attempted 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 the fee agreement. 

 1

 Record (R.) at 3, 184. 
2 

The appellant appeals a March 22, 2017, decision of the Board of 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 defeat the proper creation of an 

overpayment in such a situation. 

Section 5112(b)(10) provides: "The effective date of a reduction 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 case: "reduction"; "compensation, 

dependency and indemnity compensation, 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 "reduction" in accrued 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 pension" includes accrued 

benefits; (2) there was an "erroneous award"; and (3) the erroneous award was "based solely on 

administrative error."3

 

After considering the statutory language, we hold that VA's recoupment 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, section 5112(b)(10) doesn't apply to 

defeat the proper creation of an overpayment here. Correspondingly, because there was no 

"reduction," we need not consider whether there was an erroneous 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. Nevertheless, 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, dependency and indemnity compensation, or 

pension" does not include accrued benefits. 
3 

granting several of the veteran's claims5

 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 with 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 specifically 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 satisfied.11

On June 12, 2013, the appellant applied for dependency and indemnity 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 into her late husband's administrative 

appeal14 and granted her claim for accrued benefits in the amount of $91,066.15 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 pause to note that there are two distinct VA benefits here: The grant 

of accrued benefits in July 2013, which was paid to the appellant 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 informing 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 the 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 remained $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, mentioned it hadn't received 

a response from the appellant, and informed her that it had created an overpayment in the amount 

of $18,213.20 because she owed VA a debt to account for the attorney 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 that she had a right to request a 

waiver.20 Although we will discuss this matter further below, it bears mentioning now that the 

appellant never sought a waiver of the overpayment. 

On September 11, 2015, the appellant disagreed with VA's creation 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 concluding 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 properly 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 because the "appellant underwent 

no change in circumstances and VA did not reduce . . . any ongoing benefit payment."25 The Board 

said that, "while the VA action was clearly erroneous, the error was not made in relation to any 

reduction . . . but merely in relation to a distribution. Consequently, it cannot be construed as the 

type of action[] which would lead to the improper creation of an overpayment."26 Even if "the 

erroneous distribution could be construed as involving reduction," the Board further reasoned, the 

error didn't constitute sole administrative error because the appellant knew or should have known 

that the payment was erroneous.27 This appeal followed. 

II. ANALYSIS 

We must determine whether section 5112(b)(10) applies in this case 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 interpretation, we hold that no "reduction" 

occurred under that statutory provision making its terms inapplicable to the appellant. 

Before we turn to the meaning of section 5112(b)(10), we address in more detail an issue 

that bears on our analysis. As we noted above, the appellant received two forms of benefits from 

VA. The first is the accrued benefits 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 "reduction" 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 brief, 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 "reduction" 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 appellant'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 payment 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 coincidental. Once VA created the overpayment based on the accrued 

benefits payment error, the DIC payment stream was merely the means by which to collect the 

overpayment. In that regard, 38 U.S.C. § 5314 permits the Secretary to "deduct the amount of the 

indebtedness of any person who has been determined to be indebted to the United States by virtue 

of such person's participation in a benefits program administered 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 oral argument, we will ignore the 

appellant's DIC payments for purposes of identifying a "reduction" 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 Court reviews de novo.35 The 

basics of statutory interpretation are well established. "In determining the meaning of a statutory 

provision, 'we look first to its language, giving the words used their ordinary meaning.'"36 Of 

course, this focus on statutory language does not mean that other 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 [hereinafter 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 reminded us, considering the purposes 

behind a statutory scheme is a useful check on a court's interpretation of a specific statutory 

provision.37 Moreover, "the statutory scheme as a whole, the specific context in which [a] word or 

provision at issue is used, and the broader context of the statute as a whole" all inform any statutory 

provision's plain meaning.38 Accordingly, the Court should construe a statute "so that effect is 

given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, 

and so that one section will not destroy another unless the provision is the result of obvious mistake 

or error."39 The goal of this interpretive endeavor is to identify and implement Congress's purpose 

in enacting a given statute.40 If, after this multifaceted exercise, we conclude that Congress'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 5112(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 in judgment shall be the date of last 

payment." We will assume initially that a grant of accrued benefits, resulting in a one-time payment 

of those benefits, such as occurred here, could be considered compensation, DIC, or pension under 

the statute. We will focus on whether, under the facts we confront, there was a "reduction" in those 

accrued benefits.42

Nowhere in title 38 (including in section 5112) did Congress define "reduction." Nor is 

there a relevant special legal definition of this term. But these facts don't stop our plain meaning 

inquiry because we can look to the ordinary meaning of "reduction."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 of a statute 

must be construed together without according undue importance to a single or isolated portion). 

39 2A NORMAN J. SINGER ET AL., SUTHERLAND ON STATUTORY CONSTRUCTION § 46:6 (7th ed. 2007) 

[hereinafter SUTHERLAND]; 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 purpose 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. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). 

42 At oral argument, the appellant argued that the purported "reduction" 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 definition, words 
8 

process of reducing," and "reducing" in turn is defined most relevantly 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 receive in specified circumstances, there 

is no dispute here that the accrued benefits calculation was correct. 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 amount 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 the total benefit must be apportioned 

and paid to two parties.46 The fact that VA could recover part of an excessive payment made 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 hold that section 5112(b)(10) doesn't 

apply here. 

This plain reading of "reduction" is reinforced when we consider the specific statutory 

mechanism by which VA pays attorney fees from such one-time payments 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 payment doesn't change when 

VA pays attorney fees under section 5904(d) out of the appellant's accrued benefits.49 In no 

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

 

are given their ordinary meaning."). 

44 See MERRIAM-WEBSTER, 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 claimant and 

an attorney have entered into a [section] 5904(d) contingency fee 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 recipient to whom it was mistakenly paid, and the 

recipient is free to seek a waiver of the collection of the overpayment 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 "withhold 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 agreement serves to divide and 

define the fund of past-due benefits," and the Secretary may recoup 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 otherwise would stretch the common 

meaning of "reduction." 

Section 5112 read as a whole also supports our interpretation of the specific statutory term 

"reduction." To start, consider section 5112's heading: "Effective dates of reductions and 

discontinuances." "Although section headings cannot limit the plain 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 timing, specifically when a reduction 

or discontinuance should go into effect. The subject of the statute'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 matters for running award payments, 

not one-time payments. With running award payments over time, it is quite important to determine 

when a reduction will take place because there are multiple payment 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 discontinuance occurred here, 

Congress's inclusion of discontinuances along with reductions in the same sentence of the statute 

is meaningful because, if a benefit is subject to a discontinuance, it seems natural to assume that 

the benefit was continuing before discontinuance. This context suggests that Congress intended 

the statute to apply to running award payments as opposed to one-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 paid monthly; in other words, each is a 

running award. This word choice implicates a well-known maxim of 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 of 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, DIC, or pension benefits. "Accrued 

benefits" are elsewhere defined as "periodic monetary benefits (other than insurance and 

servicemen's indemnity) under laws administered by the Secretary 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 intended section 5112 

to apply when a purported "reduction" happens with respect to accrued 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 compensation 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 "reduction" under section 5112.59

Last of contextual indicia of congressional intent in the provision 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" followed by different events, such as 

marriage or a change in income, that could affect a recipient.60 Subparts (1) through (10) all also 

describe the particular day that will serve as the effective date 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 that 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 the context of an award of compensation, 

DIC, or pension that results in both a one-time retroactive payment of past-due benefits and recurring 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 though 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 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 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 can 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 section 5112. 

Legislative history complements these textual indicia of Congress's intent and the meaning 

of "reduction."64 It reveals that Congress's focus on timing (recall our "effective date" discussion 

above) in section 5112(b)(10) was its policy solution to the problem of balancing innocent parties' 

interests—running-award recipients' interests versus the taxpayers' interests—in the wake of sole 

VA error. However, as we'll see, section 5112's solution to address errors that affect running 

awards is not one-size-fits-all; it's simply inapplicable to erroneous one-time accrued benefits 

payments. 

Congress intended section 5112(b)(10) "to include cases in which an erroneous action was 

predicated on a misunderstanding of existing instructions or regulations or the applicable 

construction of statute. Thus, while no overpayment would be created requiring recovery, there 

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

63 See SUTHERLAND § 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 when crafting section 5112(b)(10). 

The second sentence's structure hints that Congress sought to balance inequities inevitably 

born by two innocent populations, faultless recipients of running awards and taxpayers. Let's start 

with benefits recipients. Recipients of running awards, who receive monthly benefits checks, may 

depend solely or mostly on their VA benefits to live month-to-month, and Congress seemingly 

thought it unjust for these people to take on liability for returning 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)(10)'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 certainly less) chance that overpayment 

recovery could unjustly impact a recipient's day-to-day finances.66 In other words, recipients of 

one-time payments aren't similarly situated to recipients of running 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. Nevertheless, 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; they can still seek waivers, a subject 

to which we return in a moment.67

Now let's consider taxpayers, the other innocent population implicated 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 reduction or discontinuance, the 

"erroneous action" at issue would persist indefinitely.68 And such perpetuation would impose 

 65 S.REP. NO. 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. REP. NO. 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 purpose of 38 C.F.R. 

§ 3.343(a), to "protect veterans who are dependent on the monthly 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 staged ratings because "the money awarded for a staged 

rating is compensation for a past period of disability and is independent of the veteran's entitlement to continuing 

benefits, and is thus significantly less likely to be the veteran'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 indefinitely," and "perpetual" means "continuing 

forever; occurring continually; indefinitely long-continued." MERRIAM-WEBSTER, https://www.merriam-
13 

indefinitely lasting liability on taxpayers for the overpayments, which Congress sought to curb 

with a simple correction device. Congress's solution easily applies to and makes sense in the 

context of running award payments. But if we consider this "solution" instead in the context of an 

error in a one-time payment, we have a square-peg-round-hole situation. 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 discrete, one-time error, correctable via 

the creation of an overpayment, is much more natural. In sum, legislative history supports our 

conclusion that section 5112(b)(10)'s protection wasn't meant to 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 to 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 explained, 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 general type of protection for all 

benefits recipients who are the subject of the creation of an overpayment, what we have alluded to 

briefly elsewhere: waiver.71 

Protecting all benefit payees, Congress provided in relevant part: "There shall be no 

recovery of payments or overpayments (or any interest thereon) of any benefits under any of the 

laws administered by the Secretary whenever the Secretary determines 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 obligation, Congress provided section 

5302. As the appellant's counsel stated at oral argument, the appellant 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 nothing in the legislative history 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 absurd as a matter of statutory interpretation. 

In sum, we hold that section 5112(b)(10) doesn't apply in the appellant'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 plain meaning of section 

5112(b)(10)'s surrounding text, statutory context, and legislative history all support this 

conclusion. Because there was no reduction of an ongoing monthly benefit, we need not consider 

whether there was an erroneous award or whether, as the appellant argues, the overpayment was 

solely the result of administrative 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 sufficiently to enable the appellant to 

understand its precise bases for concluding that the overpayment 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 decision. 

 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).