UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 17-4382

THOMAS H. BUFFINGTON, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 10, 2019 Decided July 12, 2019)

Stacy A. Tromble, with whom Raymond J. Kim and Barton F. Stichman were on the brief, 

all of Washington, D.C., for the appellant.

Debra L. Bernal, with whom Catherine C. Mitrano, Acting General Counsel; Mary Ann 

Flynn, Chief Counsel; Joan E. Moriarty, Deputy Chief Counsel; and Michael M. Epsten, NonAttorney Practitioner, were on the brief, all of Washington, D.C., for the appellee.

Before GREENBERG, MEREDITH, and FALVEY, Judges.

MEREDITH, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a 

dissenting opinion.

MEREDITH, Judge: The appellant, Thomas H. Buffington, through counsel appeals a 

July 20, 2017, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective 

date earlier than February 1, 2008, for the reinstatement of VA benefits. Record (R.) at 1-13. This 

appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. 

§§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to address whether the 

Secretary's regulation, 38 C.F.R. § 3.654(b)(2), which governs the effective date for the 

recommencement of VA benefits following a period of active duty, is inconsistent with 38 U.S.C. 

§ 5304(c), which prohibits concurrent receipt of active service pay and pension, compensation, or 

retirement pay. For the reasons discussed below, the Court holds that § 3.654(b)(2) is a valid 

exercise of the Secretary's broad rulemaking authority, pursuant to 38 U.S.C. § 501, to issue 

regulations necessary to carry out the laws administered by VA and is not inconsistent with 

38 U.S.C. § 5304(c). Accordingly, the Court will affirm the Board's decision.
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I. BACKGROUND

The appellant served on active duty in the U.S. Air Force from September 1992 to May 

2000, and in the Air National Guard from July 2003 to June 2004, from November 2004 to July 

2005, in December 2009, and from February 2016 to May 2016. R. at 14-21. In March 2002, he 

was granted entitlement to VA disability compensation for tinnitus, rated 10% disabling. R. at 

1261-64, 1272-78. The appellant submitted a VA Form 21-8951, Notice of Waiver of VA 

Compensation or Pension to Receive Military Pay and Allowances, in August 2003. R. at 1233. 

This form reflects that he elected to receive military pay and allowances for the performance of 

active and inactive duty in lieu of VA benefits and provides that the "waiver will remain in effect, 

while [he was] entitled to receive VA disability payments, unless [he] notif[ies] VA otherwise in 

writing." Id.

In October 2003, VA advised him that it was proposing to terminate his VA benefits, 

effective July 20, 2003, because his National Guard unit had been activated on July 21, 2003. R. at 

1229. In response, the appellant executed and submitted VA Form 21-8951-2, in which he again 

elected to waive VA benefits in lieu of military pay. R. at 1224-25. In December 2003, VA 

informed him that it had stopped his benefits the day before he was recalled to active duty. R. at 

1222-23. The letter further instructed: "When you have been released from active duty, please 

provide our office with a copy of your DD[-]214, so that we may re[]instate your benefits." 

R. at 1222.

Following two periods of active duty—July 2003 to June 2004, and November 2004 to 

July 2005—in January 2009, the appellant requested that his benefits be reinstated. R. at 1210. In 

August 2009, a VA regional office (RO) reinstated his VA disability compensation, effective 

February 1, 2008. R. at 1196-99. The RO informed him that, in December 2003, "[w]e . . . told 

you to provide us with copies of your DD Form 214[] upon your release from active duty so that 

we could re[]instate your benefits." R. at 1196. The RO then explained: "We received your request 

for the reinstatement of your VA [c]ompensation benefits more than [1] year after your release 

from active duty. By law we are only permitted to make payments retroactive to [1] year prior to 

the date we received your request." R. at 1197. 

The appellant filed a Notice of Disagreement (NOD), asserting that the RO's December 

2003 letter "did not address the [1-]year requirement for informing . . . VA of [his] release from 

active duty," R. at 1193, and he perfected an appeal to the Board, R. at 1153-55, 1159-81. He also 
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testified at a November 2015 Board hearing that, in 2003, VA did not clarify that there was a time 

line for when he needed to submit his DD-214s to reinstate benefits. R. at 643-44. He explained 

that, between 2003 and 2009, he had three different activations and "kind of forgot about it." 

R. at 643. He said: "I'm in the Guard and it was kind of like my full-time job." Id.

In the July 20, 2017, decision on appeal, the Board concluded, as a matter of law, that VA 

cannot resume payment of the appellant's benefits more than 1 year prior to the date of his claim 

for reinstatement, which was received on January 20, 2009. R. at 7-9 (citing 38 U.S.C. § 5304(c), 

38 C.F.R. §§ 3.31, 3.654(b)(2) (2017)). Regarding the appellant's contention that VA did not 

provide notice as to the time to submit copies of his DD-214s, the Board found that the VA Form 

21-8951, submitted by him in August 2003, and the RO's December 2003 letter "clearly informed 

[him] that the consequence of failing to notify VA of his cancelling his waiver of VA benefits 

would be the continued waiver of those benefits." R. at 9-10. Thus, applying § 3.654(b)(2) to the 

undisputed facts, the Board denied an effective date earlier than February 1, 2008, for the 

reinstatement of VA benefits. R. at 1-13. This appeal followed. 

II. ANALYSIS

A. The Parties' Arguments

The appellant argues that the language of 38 U.S.C. § 5304(c) is clear—VA must "withhold 

or suspend a veteran's benefits only 'for any period for which such person receives active service 

pay.'" Appellant's Brief (Br.) at 6 (quoting 38 U.S.C. § 5304(c)). He asserts that § 3.654(b)(2) is 

inconsistent with the statute because section 5304(c) "does not predicate payment or reinstatement 

of benefits upon notice by the veteran." Id. at 10. He further asserts that reading section 5304(c) in 

the context of 38 U.S.C. § 1110(a), which provides that VA "will pay" disability compensation 

benefits once service connection is established, demonstrates that "Congress has prohibited VA 

from withholding or suspending benefits due to a veteran's receipt of active pay during any 

period . . . section 5304(c) does not encompass." Id. at 9. He therefore maintains that the regulation 

is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and seeks 

reversal of the Board's decision denying an effective date earlier than February 1, 2008. Id. at 

10-11.

In the alternative, he argues that equitable tolling is warranted because "the Board treated 

[§] 3.654(b)(2) as a statute of limitations," and VA effectively misled him into believing that there 
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was no deadline to notify VA that he had been released from active duty. Id. at 13. Also in the 

alternative, he argues that, because he has a property interest in VA benefits and he relied to his 

detriment on the allegedly misleading notice, VA violated his constitutional right to due process. 

Id. at 14-16.

The Secretary argues that VA promulgated § 3.654(b)(2) pursuant to his broad 

congressional authority under 38 U.S.C. § 501 to "'prescribe all rules and regulations which are 

necessary or appropriate to carry out the laws administered by the Department and are consistent 

with those laws.'" Secretary's Br. at 6 (quoting 38 U.S.C. § 501). He asserts that section 5304(c) 

does not address the recommencement of payments; rather, "Congress unambiguously delegated 

the authority to create the procedural structure to prevent duplication of benefits to VA." Id. at 9. 

In that regard, he maintains that the regulation "effectively establishes 'the nature of proof and 

evidence and the method of taking and furnishing them' for purposes of resumption of benefits."

Id. at 10 (quoting 38 U.S.C. § 501(a)). The Secretary further maintains that, when sections 5304 

and 1110 are read together, a gap remains, and VA's regulation should be afforded deference. 

Secretary's Br. at 11-12 (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837, 843 (1984)). 

In response to the appellant's argument for equitable tolling, the Secretary asserts that the 

doctrine is not applicable to § 3.654(b)(2) because the regulation is not a statute of limitations; 

there is no filing deadline to toll. Id. at 16-18. He also asserts that the Board did not "treat" the 

regulation as a statute of limitations and, in either event, the appellant fails to demonstrate that VA 

provided misleading notice. Id. at 18-20. The Secretary similarly maintains that the appellant's due 

process argument must fail because he has not demonstrated that VA provided misleading notice 

or that he relied to his detriment on the notice. Id. at 20-22. Finally, he avers in the alternative that, 

even assuming the notice was improper, the appellant is charged with knowledge of the regulatory 

requirements. Id. at 22-23 (citing Morris v. Derwinski, 1 Vet.App. 260, 265 (1991)). 

In his reply brief, the appellant responds that the Secretary's argument would lead to an 

absurd result—that the Secretary could promulgate regulations pursuant to section 501, even 

though the "regulation conflicts with other statutes with which the Secretary is obligated to 

comply." Reply Br. at 2-3. He asserts that there is no gap to fill; rather, "[§] 3.654(b)(2)'s [1]-year 

requirement . . . imposes on veterans a requirement that the relevant statutes simply do not 

contain . . . . [and] violates VA's obligation to compensate veterans who are not on active duty for 
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their service-connected disabilities." Id. at 3-4. The appellant maintains that he was effectively 

misled regarding the time to file a claim to reinstate benefits because the 2003 letter did not include 

information regarding the 1-year requirement and, consequently, the Court should reverse the 

Board's decision on the grounds of equitable tolling or a violation of his right to due process. Id.

at 6-13. Regarding notice, he contends that the Secretary's reliance on Morris is misplaced because, 

in that case, the veteran received proper notice, whereas here, the notice effectively misled him as 

to what was required to reinstate his benefits. Id.

Prior to oral argument, the appellant also submitted a Notice of Supplemental Authorities, 

consisting of six Board decisions dated from February 2015 to December 2018. The Board 

decisions essentially reflect that, if a veteran erroneously receives disability compensation and 

active duty pay or military drill pay, VA may recoup the compensation benefits to which the 

veteran was not entitled, i.e., for the period beginning on entry to active service and ending upon 

the release from active duty. See, e.g., BVA 12-08 113 (Dec. 19, 2018). At oral argument, the 

appellant maintained that these decisions demonstrate that VA's regulation is arbitrary and 

capricious. Oral Argument at 23:30-23:40, Buffington v. Wilkie, U.S. Vet. App. No. 17-4383 (oral 

argument held Apr. 10, 2019). He argued that the decisions reflect that veterans who fail to inform 

VA of their return to active duty are treated better than veterans, like himself, whom he asserts are 

"penalized" for doing the right thing. Id. at 24:20-24:50. He explained that, had he received dual 

compensation, VA would only recoup the compensation paid during his period of active duty; but 

now, § 3.654(b)(2) operates to limit his VA compensation to 1 year prior to his claim for 

recommencement. Id. at 23:30-24:50. 

B. Law

Under certain circumstances, the United States "will pay to any veteran" compensation 

"[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for 

aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active 

military, naval, or air service." 38 U.S.C. § 1110. However, as early as 1891, Congress has 

prohibited members of the uniformed services from receiving VA benefits and active service pay. 

Act of March 3, 1891, ch. 548, 26 Stat. 1082; see Absher v. United States, 9 Cl. Ct. 223, 224-25 

(1985) (discussing the legislative history of the prohibition against dual compensation), aff'd, 

805 F.2d 1025 (Fed. Cir. 1986). 
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The prohibition against the duplication of benefits now appears in section 5304 of title 38, 

U.S. Code, and provides in pertinent part: "Pension, compensation, or retirement pay on account 

of any person's own service shall not be paid to such person for any period for which such person 

receives active service pay." 38 U.S.C. § 5304(c). "Active service pay" is defined as "pay received 

for active duty, active duty for training[,] or inactive duty training." 38 C.F.R. § 3.654(a) (2019). 

Congress generally allows members of the Reserve or National Guard who are called to 

active duty to elect to receive, for that duty, the pension, compensation, or retirement pay that the 

member had been receiving because of his or her earlier service, or, upon waiver of those 

payments, the pay and allowances authorized by law for the period of active service. 10 U.S.C.

§ 12316. In 1962, VA promulgated 38 C.F.R. § 3.654(b), which establishes the effective date for 

the discontinuance of VA benefits when veterans return to active duty status and the effective date 

for recommencement of payments following their release from active duty. Pertinent to the issue 

on appeal, § 3.654(b)(2) provides:

Payments, if otherwise in order, will be resumed effective the day following release 

from active duty if claim for recommencement of payments is received within 

1 year from the date of such release: otherwise payments will be resumed effective 

1 year prior to the date of receipt of a new claim. Prior determinations of service 

connection will not be disturbed except as provided in [38 C.F.R.] § 3.105. 

Compensation will be authorized based on the degree of disability found to exist at 

the time the award is resumed. Disability will be evaluated on the basis of all facts, 

including records from the service department relating to the most recent period of 

active service. If a disability is incurred or aggravated in the second period of 

service, compensation for that disability cannot be paid unless a claim therefor is 

filed.

38 C.F.R. § 3.654(b)(2).

Here, there is no dispute that the appellant did not file a claim for recommencement of 

disability compensation until January 20, 2009, more than 1 year after his release from his second 

and third periods of active duty. He contends only that section 5304(c), together with section 1110,

requires VA to reinstate his benefits as of the date following his release from active duty or, in the 

alternative, that the Court find that VA provided misleading notice warranting equitable tolling or 

a finding that VA violated his right to due process. The Court will address his statutory argument 

first.

C. Statutory Interpretation

"When a statute is at issue, we begin with the statutory language." McGee v. Peake, 

511 F.3d 1352, 1356 (Fed. Cir. 2008); see Williams v. Taylor, 529 U.S. 420, 431 (2000). "The 
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statute's plain meaning is derived from its text and its structure." McGee, 511 F.3d at 1356; see 

Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning 

requires examining the specific language at issue and the overall structure of the statute."), aff'd 

sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). The "plain 

meaning must be given effect unless a 'literal application of [the] statute will produce a result 

demonstrably at odds with the intention of its drafters.'" Gardner, 1 Vet.App. at 586-87 (quoting 

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see Roper v. Nicholson, 

20 Vet.App. 173, 180 (2006), aff'd, 240 F. App'x 422 (Fed. Cir. 2007). In assessing the language 

of a statute, courts review the overall statutory scheme "'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.'" Roper, 

20 Vet.App. at 178 (quoting SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION, § 46:06 

(6th ed. 2000)).

The first question in statutory interpretation is always "whether Congress has directly 

spoken to the precise question at issue." Chevron, 467 U.S. at 842. "If the intent of Congress is 

clear, that is the end of the matter; for the court, as well as the agency, must give effect to the 

unambiguously expressed intent of Congress." Id. at 842-43. However, if the statute is silent or 

ambiguous with respect to the specific issue, the question becomes whether the agency's 

interpretation is based on a permissible construction of the statute. Id. at 843. The agency's 

interpretation will not be set aside unless it is "arbitrary, capricious, an abuse of discretion or 

otherwise not in accordance with law." 38 U.S.C. § 7261(a)(3)(A); see Mayo Found. for Med. 

Educ. & Research v. United States, 562 U.S. 44, 53 (2011). The interpretation of a statute is a 

question of law that the Court reviews de novo, without deference to the Board's interpretation. 

See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc).

1. Chevron Step One

As noted above, section 1110 generally establishes that, under certain circumstances, the 

United States "will pay" disability compensation for disability resulting from or aggravated by 

military service. 38 U.S.C. § 1110. By its terms, it does not establish when disability compensation 

payments shall begin or impose any limitation on continued receipt of compensation benefits. Cf. 

38 U.S.C. § 5110 (Effective dates of awards). Section 5304(c), however, imposes one such 

limitation: VA "shall not" pay pension or compensation benefits to any person on account of that 
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person's service during any period for which that person receives active service pay. 38 U.S.C. 

§ 5304(c). By its terms, section 5304(c) establishes an unequivocal bar to dual compensation. 

The appellant thus maintains that, when sections 1110 and 5304(c) are read together, 

Congress's intent is clear and VA has no discretion: "VA must suspend or withhold benefits, but 

only 'for any period for which such person receives active service pay.'" Appellant's Br. at 9 

(quoting 38 U.S.C. § 5304(c)); Oral Argument at 2:50-3:20. However, the word "only" does not 

appear in the statute and the Court will not insert limiting language that is not present in the statute. 

See Bates v. United States, 522 U.S. 23, 29 (1997) ("[W]e ordinarily resist reading words or 

elements into a statute that do not appear on its face."). The statutory language does not address 

the effective date for the discontinuation of benefits or, as relevant here, the effective date and 

terms for the recommencement of benefits. 

To the contrary, Congress separately addressed the effective date for the discontinuation 

of benefits by reason of active service pay in section 5112(b)(3)—benefits "shall be" discontinued 

the day before active service pay begins. 38 U.S.C. § 5112(b)(3). Although Congress did not 

separately address the effective date for the recommencement of benefits, the Court will not adopt 

the appellant's construction of sections 1110 and 5304(c) as the governing authority because doing 

so would effectively render Congress's specific directive in section 5112(b)(3) superfluous. See 

Sharp v. United States, 580 F.3d 1234, 1238 (Fed. Cir. 2009) (noting that the canon against 

surplusage requires courts to avoid an interpretation that results in portions of text being read as 

meaningless); see also Duncan v. Walker, 533 U.S. 167, 174 (2001). In sum, Congress did not 

speak to the precise question at issue: Whether the Secretary may predicate the effective date for 

the recommencement of benefits on the date of the veteran's claim.

1 The Court thus agrees with 

the Secretary that neither section 5304(c) individually, nor sections 5304(c) and 1110 together, 

address how interruptions in the payment of benefits shall be administered. Cf. 38 U.S.C. § 5313 

(establishing both the beginning and ending date of the limitation on payment of compensation to 

persons incarcerated for conviction of a felony).

Because there is a gap in the statute, the Court must now turn to step two of the Chevron

analysis, "whether the agency's answer is based on a permissible construction of the statute."

 

1 The appellant does not dispute that the Secretary may require a veteran to notify VA that a term of active 

duty has ended. His argument is limited to whether the Secretary may "tie the effective date of the resumption of 

benefits to the date of such notification because doing so conflicts with the plain language of 38 U.S.C. § 5304(c)." 

Appellant's Br. at 10 n.3.
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Chevron, 467 U.S. at 843; see id. ("'The power of an administrative agency to administer a 

congressionally created . . . program necessarily requires the formulation of policy and the making 

of rules to fill any gap left, implicitly or explicitly, by Congress.'" (quoting Morton v. Ruiz, 

415 U.S. 199, 231 (1974)).

2. Chevron Step Two

Congress conferred on the Secretary broad authority to "prescribe all rules and regulations 

which are necessary or appropriate to carry out the laws administered by the Department and are 

consistent with those laws." 38 U.S.C. § 501(a). That authority includes establishing "regulations 

with respect to the nature and extent of proof and evidence . . . in order to establish the right to 

benefits under such laws," "the forms of application by claimants under such laws," and "the 

manner and form of adjudications and awards." 38 U.S.C. § 501(a)(1), (2), (4).

The Secretary asserts that § 3.654(b) fills the gap left by Congress by "delineating the 

procedure by which benefits are suspended and reinstated as a veteran comes in and out of active 

service." Secretary's Br. at 12. He maintains that VA is charged with managing the flow of benefits 

for millions of veterans and asserts that his regulation operates in a veteran-friendly manner, 

affording veterans a 1-year grace period to inform VA that they have been released from active 

duty or, in the alternative, to have payments resumed 1 year prior to the date of the claim. Oral 

Argument at 28:25-28:52, 31:15-32:00; see Secretary's Br. at 10. 

The appellant counters that § 3.654(b)(2) is inconsistent with and not necessary or 

appropriate to carry out the requirements of section 5304(c). Oral Argument at 6:15-6:42. In this 

regard, he maintains that the regulation does nothing to prevent the duplication of benefits and 

imposes a substantive limitation on entitlement to VA benefits that is contrary to the mandate in 

section 1110 that the United States "will pay" disability compensation. Id. at 4:48-5:56. Although 

the Court is sympathetic to the appellant's circumstances, the Court is not persuaded by his

arguments.

As argued by the Secretary, VA promulgated § 3.654(b) pursuant to his broad authority 

derived from section 501; the regulation creates a mechanism by which VA manages compensation 

benefits when veterans return to active duty, § 3.654(b)(1), and provides a procedure and structure 

for recommencing benefits upon release from active duty, § 3.654(b)(2). Oral Argument at 

27:00-27:30. In that general sense, the regulation effectively establishes "the nature and extent of 

proof and evidence and the method of taking and furnishing them" and falls within the Secretary's 
10

authority "to determine the forms of application [for] benefits, and the manner of awards." 

Secretary's Br. at 10-11. A veteran must file a claim for recommencement and the regulation 

provides for an earlier effective date of the day following discharge if the claim is received within 

1 year from the date of release from active duty or, in the alternative, 1 year prior to the date of the 

claim. 38 C.F.R. § 3.654(b)(2). 

The Secretary explained that, when veterans return to active duty, their awards of 

compensation benefits are terminated. Oral Argument at 32:22-33:18, 42:20-43:33; see VA Gen. 

Coun. Prec. 05-95 at 2 (Feb. 6, 1995) (providing that VA's action of discontinuing compensation 

upon return to active duty is suggestive of an adjudicative determination terminating the veteran's 

award, such that the continuity of a veteran's rating is interrupted). He further clarified that, 

although service connection remains in place, it is necessary for VA to readjudicate and evaluate 

a veteran's service-connected disability upon return from active duty to ascertain the current level 

of severity, see 38 C.F.R. § 3.654(b)(2) (providing that "[c]ompensation will be authorized based 

on the degree of disability found to exist at the time the award is resumed"), and VA's regulation 

reasonably requires a veteran to file a claim for recommencement. Oral Argument at 42:20-43:33. 

As for the 1-year period, the Secretary analogized it to 38 U.S.C. § 5110(b)(1), which provides 

that "[t]he effective date of an award of disability compensation to a veteran shall be the day 

following the date of the veteran's discharge or release if application therefor is received within 

[1] year from such date of discharge or release." Id. He asserted that, just as Congress provided 

1 year for a veteran to file a claim following discharge, his regulation provides the same reasonable 

period. Id.

In that regard, the Court has previously upheld time limitations for filing a claim and 

"1 year" is generally used throughout title 38. See Oral Argument at 31:15-31:20; Secretary's Br. 

at 14-15. For example, in Jernigan v. Shinseki, the Court addressed whether the Secretary's 

creation of a time limit to file a formal application form was a reasonable interpretation of 

Congress's direction that VA prescribe the "form" in which applications for benefits may be made. 

25 Vet.App. 220, 225-27 (2012). The Court found in the affirmative, explaining that the most 

appropriate definition of "form" is an "[e]stablished behavior or procedure, usu[ally] according to 

custom or rule," BLACK'S LAW DICTIONARY 723 (9th ed. 2004), and that "[u]nder this definition, 

it is eminently reasonable to interpret 'form'—that is, the procedure for filing an application for 

benefits—to include a timing requirement, particularly in the context of VA, where finality often 
11

plays a crucial role." 25 Vet.App. at 226. The Court rejected Ms. Jernigan's assertion that "VA is 

not permitted to disguise the creation of additional requirements or limitations as interpretive 

regulations," id. at 226 (internal quotation marks omitted), explaining that "Congress expressly 

delegated authority to VA to determine the appropriate 'forms of application[,]'" id. at 226-27 

(quoting 38 U.S.C. § 501(a)(2)). The Court thus concluded that Congress's "express delegation, 

along with the Court's determination that the Secretary's interpretation of 'form' to include a timing 

requirement is reasonable, is sufficient to hold that [the Secretary's regulation] is not 'arbitrary or

capricious in substance, or manifestly contrary to the statute.'" Id. at 227 (quoting Mayo Found. 

for Med. Educ. & Research, 562 U.S. at 53).

Similarly, here, the Secretary promulgated § 3.654(b)(2) pursuant to Congress's express 

delegation to establish "forms of application." 38 U.S.C. § 501(a)(2). Although Congress chose to 

govern the date that VA benefits shall be discontinued upon a veteran's return to active duty, 

38 U.S.C. § 5112(b)(3), Congress was silent regarding when and how VA shall resume the 

payment of benefits after a veteran's release from active duty. The Secretary filled the gap left by 

Congress and, therefore, contrary to the appellant's contention, his regulation is necessary and

appropriate to carry out the laws administered by the Department. See 38 U.S.C. § 501(a).

Further, the Court notes that the language of § 3.654(b)(2) has remained unchanged since 

1962. See 27 Fed. Reg. 11,886 (Dec. 1, 1962). Despite ample opportunity to modify section 

5304(c) or circumscribe this regulation, Congress has left both untouched for over half a century.

See Heino v. Shinseki, 24 Vet.App. 367, 375 (2011) (holding that Congress's failure to reject the 

Secretary's construction of a statute or circumscribe its regulation "indirectly indicated" its 

"sanction[]" of the regulation), aff'd, 683 F.3d 1372 (Fed. Cir. 2012).

Moreover, the Court is not persuaded that the supplemental authorities submitted by the 

appellant compel finding the Secretary's regulation arbitrary and capricious. As noted above, the 

appellant asserts that veterans who do not inform VA of their return to active duty may, in the end, 

receive and retain more monthly benefits than veterans, like the appellant, who waive benefits 

during a period of active service but who do not inform VA of their release within 1 year following 

release from service. The Secretary, however, is charged with managing compensation benefits 

for all veterans and the appellant has not demonstrated that it is unreasonable to craft rules with 

the expectation that they will be followed. Cf. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314 

(1976) ("Perfection in making the necessary classifications is neither possible nor necessary.").
12

The Court thus concludes that VA's decision to predicate the effective date of recommencement 

of benefits on the date of the application therefor is not "arbitrary, capricious, or manifestly 

contrary to" section 5304(c). Chevron, 467 U.S. at 844.

Because the Court finds § 3.654(b)(2) a valid exercise of the Secretary's rulemaking 

authority, the Court must turn to the appellant's alternative arguments that equitable tolling is 

warranted or that VA deprived him of his constitutional right to due process. The Court will 

address his argument for equitable tolling first. See Bucklinger v. Brown, 5 Vet.App. 435, 441 

(1993) ("It is '[a] fundamental and long-standing principle of judicial restraint . . . that courts avoid 

reaching constitutional questions in advance of the necessity of deciding them.'" (quoting Lyng 

v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988)).

D. Equitable Tolling

As noted above, the appellant argues that VA provided misleading notice regarding the 

1-year period to submit a claim to recommence the payment of VA benefits and, therefore, the 

Court should apply its equitable tolling authority to afford him earlier effective dates of July 1, 

2004, and August 1, 2005, the dates following his release from two periods of active duty, for the 

reinstatement of VA benefits. Although equitable tolling may be applied against the government 

in certain circumstances, such as "where the claimant has actively pursued his judicial remedies 

by filing a defective pleading during the statutory period, or where the complainant has been 

induced or tricked by his adversary's misconduct into allowing the filing deadline to pass," Irwin 

v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), it is generally applied to toll a statute of 

limitations to allow a claim that would otherwise be time barred. See, e.g., Bove v. Shinseki, 

25 Vet.App. 136, 140 (2011) (per curiam order) (holding that the 120-day period in 38 U.S.C. 

§ 7266(a) is subject to equitable tolling).

Both the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and this Court have 

considered whether equitable tolling may be applied to statutes that govern the effective date of 

awards of VA benefits and authorities that operate similar to effective-date provisions, and have 

found that it may not. See Andrews v. Principi, 351 F.3d 1134, 1138 (Fed. Cir. 2003); Noah v. 

McDonald, 28 Vet.App. 120, 128-29 (2016). Statutes and regulations that "merely indicate when 

benefits may begin, not whether a veteran is entitled to benefits at all," are not statutes of limitation 

subject to equitable tolling. Noah, 28 Vet.App. at 129; see Andrews, 351 F.3d at 1138 ("Passage 

of the [1]-year period in [38 U.S.C.] § 5110(b)(1) for filing a claim of disability 
13

compensation . . . does not foreclose payment for the veteran and thus cannot be construed as 

establishing a statute of limitations."); Noah, 28 Vet.App. at 129 ("[T]he 1-year period provided 

in 38 U.S.C. § 3003(a) [(1981)] to submit evidence following VA's notification of the evidence 

necessary to complete the application cannot be construed as a statute of limitations.").

Here, the Court agrees with the Secretary that § 3.654(b)(2) is not a bar to VA benefits and 

does not contain a statute of limitations that may be equitably tolled. Rather, the regulation governs 

the date VA benefits may be resumed following release from active duty, which is dependent on 

when the veteran files a claim to recommence payment of benefits. In that regard, it operates 

similar to effective-date provisions for awards of VA benefits, which the Federal Circuit in 

Andrews unequivocally held may not be equitably tolled, 351 F.3d at 1138, and the statute and 

regulation at issue in Noah, 28 Vet.App. at 128-29.

The appellant does not dispute that § 3.654(b)(2) is not a statute of limitations. Instead, he 

argues that "the Board treated [§] 3.654(b)(2) as a statute of limitations in finding that, because 

[he] did not notify VA of his separation from active duty within [1] year of the date of separation, 

he had waived his right to an earlier effective date." Appellant's Br. at 13. Hence, he contends that 

the Board's "application of [§] 3.654(b)(2) . . . does not fall within the category of VA regulations 

that may evade equitable tolling." Appellant's Br. at 13 (citing Noah, 28 Vet.App. at 127).

His argument is not persuasive. First, it is clear from the Board decision as a whole that, in 

applying § 3.654(b)(2), the Board determined that the effective date for resuming payment of VA 

benefits must be based on the date of the appellant's claim—January 20, 2009. R. at 8-9; see 

Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per curiam) (rendering a decision on the Board's 

statement of reasons or bases "as a whole"). And, because the claim was filed more than 1 year 

after his release from active duty, a date more than 1 year prior to the date of the claim was 

impermissible. R. at 9. Although application of the regulation to the undisputed facts precluded an 

earlier effective date, it did not operate as a complete bar to benefits. 

Second, even if the Board treated the regulation as a statute of limitations, the appellant

cites no authority to support the proposition that the Court may apply equitable tolling under that 

circumstance. The Court thus need not address this argument further. See Locklear v. Nicholson, 

20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain undeveloped arguments); 

Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 

2000) (table).
14

E. Due Process

The Fifth Amendment to the U.S. Constitution provides that "No person shall . . . be 

deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V. "[T]he 

Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot 

be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. 

v. Loudermill, 470 U.S. 532, 541 (1985). An essential principle of due process is that deprivation 

of a protected interest must "be preceded by notice and opportunity for hearing appropriate to the 

nature of the case." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The 

Court reviews constitutional questions de novo. See Buzinski v. Brown, 6 Vet.App. 360, 365 

(1994).

Nearly 10 years ago, the Federal Circuit held that a veteran's entitlement to disability 

benefits is a property interest protected by the Due Process Clause. Cushman v. Shinseki, 576 F.3d 

1290, 1296 (Fed. Cir. 2009). The amount of process that is constitutionally due depends on the 

situation and generally requires consideration of three distinct factors: "[T]he private interest that 

will be affected by the official action"; "the risk of an erroneous deprivation of such interest 

through the procedures used, and the probable value, if any, of additional or substitute procedural 

safeguards"; and "the Government's interest." Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

The appellant argues that VA violated his constitutional right to due process because the 

August 2003 VA Form 21-8951 and the RO's December 2003 letter "effectively misled [him] into 

believing that there was no deadline for him to inform VA of his separation from active duty." 

Appellant's Br. at 16; see R. at 1222 (December 2003 letter: "When you have been released from 

active duty, please provide our office with a copy of your DD[-]214, so that we may re-instate 

your benefits."), 1233 (August 2003 VA Form 21-8951: "This waiver will remain in 

effect . . . unless you notify VA otherwise in writing."). At oral argument, he asserted that, because 

the notice was silent regarding when payment would be resumed, a reasonable person would not 

think that a failure to notify VA within a particular time frame would result in a forfeiture of 

benefits. Oral Argument at 9:20-10:04. He thus maintained that the December 2003 letter was 

affirmatively misleading: He argued that VA told him that he needed to submit his DD-214s but

did not tell him any other information. So, VA "affirmatively misled him in the sense that he was 

told he needed to do 'A' and, if he did 'A,' he would get his benefits reinstated." Id. at 10:30-11:00.
15

The Court need not reach the question whether VA provided misleading notice because, 

even assuming the notice was misleading, to prevail on his argument, the appellant must also show 

that he relied to his detriment on the allegedly misleading notice. See Noah, 28 Vet.App. at 133; 

see also Day v. Shalala, 23 F.3d 1052, 1066 (6th Cir. 1994) (although the denial notice "failed to 

satisfy the requirements of due process, the only claimants who could have been injured by the 

inadequacy are those who detrimentally relied on the inadequate denial notice"); Burks–Marshall 

v. Shalala, 7 F.3d 1346, 1349 (8th Cir. 1993) (the appellant has no standing to raise a due process 

issue where he "has not shown that the alleged deficiency in the notice had any connection in fact 

with h[is] own failure to seek review of" the denial of his claim). "Without such reliance, the injury 

is not fairly traceable to the challenged action." Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 

1995). 

Here, it is undisputed that the appellant knew that he needed to inform VA that he had been 

released from active duty to reinstate his benefits; he contends only that his statements and 

testimony reflect that he relied to his detriment on the allegedly misleading notice. Appellant's Br. 

at 16 (citing R. at 644 (Nov. 2015 testimony that the RO "didn't clarify" in 2003 that VA could 

only make payments 1 year prior to the date of his request), 1193 (Sept. 2009 NOD noting that the 

December 2003 letter "did not address the [1-]year requirement for informing . . . VA of my release 

from active duty")). But he does not explain how his statements reflect more than a general lack 

of knowledge of the regulation.

The Court addressed a similar situation in Jernigan. In that case, the appellant argued that 

VA's notice, which failed to inform her of the timeframe to return a formal application, was 

misleading or confusing. 25 Vet.App. at 229. Without determining whether VA had a duty to notify 

or whether the notice was defective, the Court concluded that the appellant failed to demonstrate 

that she relied to her detriment on the purportedly misleading notice. Id. Pertinent to resolution of 

this appeal, the Court rejected the notion that "one could presume that [the claimant relied on the 

allegedly misleading notice] from the notice itself and the subsequent delay in submitting a formal 

application." Id. The Court stated that the appellant had not cited any authority for such a

presumption, "and our caselaw does not allow it." Id. The Court concluded: "'The record simply 

does not support any assertion that the notice lulled the appellant into failing to act, and [her] 

arguments must be rejected because they are not supported by any demonstrable prejudice.'" Id.

(quoting Edwards v. Peake, 22 Vet.App. 29, 35 (2008), aff'd sub nom. Edwards v. Shinseki, 
16

582 F.3d 1351 (Fed. Cir. 2009)); see id. at 231 (rejecting the appellant's due process argument in 

part due to the lack of "evidence that [she] relied on VA's allegedly misleading notice to her 

detriment"); see also Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding that the 

harmless-error analysis applies to the Court's review of Board decisions and that the burden is on 

the appellant to show that he or she suffered prejudice as a result of VA error).

Similarly, here, the record does not support the assertion that the appellant detrimentally 

relied on the allegedly misleading notice. See Mlechick v. Mansfield, 503 F.3d 1340, 1345 

(Fed. Cir. 2007) (holding that this Court's statutory duty to take due account of the rule of 

prejudicial error permits the Court "to go outside of the facts as found by the Board to determine 

whether an error was prejudicial by reviewing 'the record of the proceedings before the Secretary 

and the Board'" (quoting Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007))); Vogan 

v. Shinseki, 24 Vet.App. 159, 164 (2010) ("[I]n assessing the prejudicial effect of any error of law 

or fact, the Court is not confined to the findings of the Board but may examine the entire record 

before the Agency, which includes the record of proceedings."). The record is silent from 

December 1, 2003, until January 20, 2009, when the appellant requested that his benefits be 

reinstated. Although he asserted in his NOD and Board testimony that the 2003 documents did not 

"clarify" that payments could only be resumed up to 1 year prior to the date of his request, he has 

not argued that they lulled him into inaction; rather, as noted by the Board, the appellant testified 

that "between that time period of 2003 until 2009, I kind of forgot about it because I'm in the Guard 

and it was kind of like my full-time job." R. at 643; see R. at 9. The Court thus concludes that the 

appellant has not met his burden of demonstrating that any due process error was prejudicial to the 

outcome of his appeal. See Jernigan, 25 Vet.App. at 231; see also Sanders, 556 U.S. at 409; Berger 

v. Brown, 10 Vet.App. 166, 169 (1997).

Considering the foregoing, and the undisputed fact that the appellant did not file a claim 

for reinstatement of benefits until January 20, 2009, the Board did not clearly err when it 

determined that an effective date prior to February 1, 2008, for the reinstatement of benefits was 

not warranted. See 38 U.S.C. § 7261(a)(4); Evans v. West, 12 Vet.App. 396, 401 (1999); Gilbert 

v. Derwinski, 1 Vet.App. 49, 52 (1990); 38 C.F.R. § 3.654(b)(2).
17

III. CONCLUSION

After consideration of the parties' pleadings, oral argument, and a review of the record, the 

Board's July 20, 2017, decision is AFFIRMED.

GREENBERG, Judge, dissenting: I respectfully dissent. "I would stop this business of 

making up excuses for judges to abdicate their job of interpreting the law, and simply allow the 

court of appeals to afford 'a claimant' its best independent judgment of the law's meaning." Kisor 

v. Wilkie, No. 18-15, 2019 WL 2605554 (U.S. June 26, 2019) (Gorsuch, J. concurring), vacating 

and remanding Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017), aff’g Kisor v. McDonald, No. 

14-2811, 2016 WL 337517 (Vet. App. Jan. 27, 2016) (mem. dec.). The majority opinion reflects 

nothing more than a rubber stamping of the Government's attempt to misuse its authority granted 

under 38 U.S.C. § 501(a). The Secretary may only prescribe rules and regulations that are 

"necessary and appropriate to carry out the laws administered by the Department." 38 U.S.C. 

§ 501(a). The statute already delineates the period for which veterans may not receive VA benefits 

– while they are on active duty. 38 U.S.C. § 5304(c). Section 3.654(b) does not merely "create a 

mechanism by which VA manages compensation benefits when veterans return to active duty," as 

the majority states, ante at 9, it also creates an unnecessary and inappropriate impediment to a 

veteran receiving benefits he has already established entitlement to. The fact that VA could have 

adopted a regulation that prescribed the procedure of reinstating benefits without including an 

effective date provision is dispositive of whether 38 C.F.R. § 3.654(b) is a "necessary or 

appropriate" regulation. The Secretary has exceeded his statutory authority here at the expense of 

service-connected veterans who were called back to active duty. For this reason, I dissent.