In a 2-1 decision Friday, the U.S. Court of Appeals for the Federal Circuit upheld a Veterans Affairs regulation under which the veteran must apply for “recommencement” of benefits, with the cutoff date for any past-due benefits set at one year before the application date.
The majority, however, said the pro-veteran canon did not apply because the statute was silent, not ambiguous: Congress specified that disability benefits end the day before active duty begins, but never stated when they would resume. Circuit Judge Kathleen O’Malley dissented, saying there was no gap for the regulation to fill because the “plain text of Title 38” discontinues veterans’ benefits only “during ‘any period’ of active service pay.”
According to the Federal Circuit, Buffington served in the Guard from 1992 until 2000, when he was diagnosed with service-related tinnitus and assigned a 10 percent disability rating.
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