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United States Court of Appeals for the Federal Circuit
August 6, 2021, Decided
[*1363] Moore, Chief Judge.
Thomas H. Buffington appeals a final decision of the United States Court of Appeals [**2] for Veterans Claims. Buffington v. Wilkie, 31 Vet. App. 293 (2019) (Veterans Court Op.). Under 38 C.F.R. § 3.654(b)(2), the Veterans Court denied Mr. Buffington an earlier effective date for recommencement of his disability benefits after periods in which he received active service pay. Id. at 296. Mr. Buffington contends § 3.654(b)(2) conflicts with and is an unreasonable interpretation of 38 U.S.C. § 5304(c). Because we hold § 3.654(b)(2) reasonably fills a statutory gap, we affirm.
Mr. Buffington served on active duty in the United States Air Force from September 1992 until May 2000. After leaving active duty service, Mr. Buffington sought disability benefits. The Department of Veterans Affairs (VA) found that Mr. Buffington suffered from service-connected tinnitus, rated his disability at ten percent, and awarded him disability compensation. In 2003, Mr. Buffington was recalled to active duty in the Air National Guard. He informed the VA of his return to active service, and the VA discontinued his disability compensation. See 38 U.S.C. §§ 5112(b)(3), 5304(c). In 2004, Mr. Buffington completed his term of active service. Later that year, he was again recalled to active duty, serving until July 2005. It was not until January 2009, however, that Mr. Buffington sought to recommence his disability benefits. The VA determined [**3] Mr. Buffington was entitled to compensation effective on February 1, 2008—one year before he sought recommencement. See 38 C.F.R. § 3.654(b)(2) (setting effective date for recommencement of compensation, at the earliest, one year before filing).
Mr. Buffington filed a Notice of Disagreement, challenging the VA's effective-date determination. The VA Regional Office issued a Statement of the Case rejecting his challenge and providing further reasoning for the February 1, 2008 effective date. Mr. Buffington then appealed to the Board of Veterans Appeals, which affirmed the VA's decision. He next appealed to the Veterans Court. That court held that § 3.654(b)(2) was a valid exercise of the Secretary of Veterans Affairs rulemaking authority and was not inconsistent with 38 U.S.C. § 5304(c). See Veterans Court Op., 31 Vet. App. at 300-04. Mr. Buffington appeals. We have jurisdiction under 38 U.S.C. § 7292(a).
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7 F.4th 1361 *; 2021 U.S. App. LEXIS 23378 **
THOMAS H. BUFFINGTON, Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
Subsequent History: Petition for certiorari filed at, 01/03/2022
Prior History: [**1] Appeal from the United States Court of Appeals for Veterans Claims in No. 17-4382, Judge Amanda L. Meredith, Judge Joseph L. Falvey Jr., Judge William S. Greenberg.
Buffington v. Wilkie, 31 Vet. App. 293, 2019 U.S. App. Vet. Claims LEXIS 1210 (U.S. App. Vet. Cl., July 12, 2019)
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Military & Veterans Law, Veterans, Claim Procedures, Department of Veterans Affairs, General Benefits, Compensation for Service Connected Death & Disability, Eligibility, Administrative Law, Judicial Review, Standards of Review, Deference to Agency Statutory Interpretation