           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                           NO . 07-0262

                                DARLENE S. CYPERT , APPELLANT ,

                                                 V.


                                   JAMES B. PEAKE , M.D.,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal from the Board of Veterans' Appeals


   (Argued October 8, 2008                                           Decided December 23, 2008)



       Landon E. Overby, (non-attorney practitioner) of Washington, D.C., for the appellant.

      Paul J. Hutter, with whom R. Randall Campbell, Assistant General Counsel; Richard
Mayerick, Deputy Assistant General Counsel; and Leslie C. Rogall, Senior Appellate Attorney, all
of Washington, D.C., were on the brief for the appellee.

       Before GREENE, Chief Judge, and KASOLD and LANCE, Judges.

       KASOLD, Judge: Darlene S. Cypert, wife of veteran Jerry L. Cypert, who has a 100% total
disability rating, permanent in nature, appeals from a December 13, 2006, Board of Veterans'
Appeals (Board) decision that denied her entitlement to Dependents' Education Assistance (DEA)
benefits under Chapter 35 of Title 38 of the United States Code. For the reasons set forth below, the
Board's decision will be reversed and the matter remanded for further adjudication consistent with
this decision.


                                       I. BACKGROUND
       Veteran Jerry L. Cypert served on active duty from August 1966 to December 1969. On
October 30, 1990, the Secretary notified Mr. Cypert that as a result of his service-connected post-
traumatic stress disorder (PTSD) he was considered permanently and totally disabled for VA
purposes, effective September 25, 1990. At that time, Mr. Cypert was divorced from his first wife.
He entered into a second marriage in July 1994 that ended in divorce in June 1999. In January 2004,
he married the appellant. Shortly thereafter, on February 4, 2004, Mrs. Cypert applied for DEA
benefits. Her application was denied by the Board because it determined that the availability of DEA
benefits ended on September 2000, 10 years after the date Mr. Cypert received his status as a
permanently and totally disabled veteran. Accordingly, the Board found that Mrs. Cypert was not
eligible for DEA benefits. Additionally, the Board determined that because Mrs. Cypert was not
married to Mr. Cypert before the eligibility period for DEA benefits had expired, she was not entitled
to an extension of the period of eligibility. See 38 C.F.R. § 21.3047 (2008) (allowing eligible or
surviving spouses an extension to the period of eligibility under certain circumstances). Mrs. Cypert
appealed.
       On appeal, Mrs. Cypert essentially argues that the Board erred as a matter of law because
38 U.S.C. § 3512(b)(1)(A) provides that the 10-year delimiting (or eligibility) period for using her
husband's DEA benefits begins to run from the date, as determined by the Secretary, that she became
an "eligible person" as defined by 38 U.S.C. § 3501 (a)(1)(D)(i).               Pursuant to section
3501(a)(1)(D)(i), an "eligible person" is the "spouse of any person who has a total disability
permanent in nature resulting from a service-connected disability sustained during a period of
qualifying service." Accordingly, because her husband was permanently and totally disabled on the
date she married him, Mrs. Cypert argues that the 10-year delimiting period began at that time –
when she became Mr. Cypert's spouse. Further, Mrs. Cypert argues that although 38 U.S.C. § 3512
(b)(1)(B) permits her to choose an alternate beginning date, if agreed to by the Secretary, this
statutory section does not permit the Secretary to unilaterally assign a beginning date other than the
one provided under section 3512(b)(1)(A). Mrs. Cypert also argues that the Secretary's interpretation
and application of the implementing regulation, 38 C.F.R. § 21.3046(a)(2)(iii)(2008), is inconsistent
with 38 U.S.C. § 3512.
       The Secretary argues that the statutory language of 38 U.S.C. § 3512 (a)(1)(D)(i) allows him
to determine the beginning date of the 10-year DEA eligibility period, and the beginning date is not
limited to when Mrs. Cypert otherwise became an "eligible person" under section 3501(a)(1)(D)(i).
The Secretary finds support for his argument in 38 U.S.C. § 3512 (b)(1)(B) and his understanding
of the legislative intent and purpose of that statute. He also contends that his implementing


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regulation, and his application thereof, are consistent with his understanding of the statute.


                                                    II. ANALYSIS
                            A. The Statutory Scheme – 38 U.S.C. § 3500, et seq.
         Both parties agree that availability of DEA benefits under section 3512 is limited to a period
of 10 years.1 The question is when the statutory 10-year period begins. Our review of the Board's
interpretation of statutes is de novo. 38 U.S.C. § 7261(a)(1); Ferenc v. Nicholson, 20 Vet.App. 58,
60 (2006). We begin our review by examining the statutory language. Ostero-Castro v. Principi,
16 Vet.App. 375, 380 (2002) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).
"Where a statute's language is plain, and its meaning clear, no room exists for construction. There
is nothing to construe." Gardner v. Derwinski, 1 Vet.App. 584, 587 (1991), aff'd sub nom.
Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994)). "Determining a
statute's plain meaning requires examining the specific language at issue and the overall structure
of the statute." Id. at 586; Reno v. Koray, 515 U.S. 50, 56-57 (1995) (construing statutory language
in context of statutory scheme); Kilpatrick v. Principi, 16 Vet.App. 1, 7 (2002) (examining entire
statutory scheme in interpreting meaning of statute); see also Glaxo Operations U.K. Ltd. v. Quigg,
894 F.2d 392, 396 (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.'" (quoting Madison Galleries Ltd. v. United States, 870 F.2d 627, 629 (Fed. Cir.
1998))).
         In this instance, we find that the "statute's language is plain, and its meaning clear." Gardner,
1 Vet.App. at 587. Section 3512(b)(1)(A) states in relevant part that


         1
            Congress recently amended section 3512 to authorize a 20-year delimiting period, beginning "on the date the
[veteran's] disability was so determined to be a total disability permanent in nature, but only if the eligible person remains
the spouse of the disabled person throughout the period." See Veterans Benefits Improvement Act of 2008, Pub. L. No.
110-389, § 321, 122 Stat. 4145 (2008). Nothing in the amendment indicates the changes are to be applied retroactively.
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("Retroactivity is not favored in the law. Thus,
congressional enactments and administrative rules will not be construed to have retroactive effect unless their language
requires this result.").




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               Except as provided in subparagraph (B) or (C), a person made eligible
               by subparagraph (B) or (D) of section 3501(a)(1) of title [38 USCS
               § 3501(a)(1)] . . . may be afforded educational assistance under this
               chapter during the 10-year period beginning on the date (as determined
               by the Secretary) the person becomes an eligible person within the
               meaning of section . . . 3501(a)(1)(D)(i) . . . .
Pursuant to section 3512(b)(1)(A), a person is "made eligible by subparagraph (B) or (D) of section
3501(a)(1) of title [38 USCS. § 3501(a)(1)]" (emphasis added). Section 3501(a)(1), states, in
pertinent part, that an "eligible person" is
                [t]he spouse of any person who has a total disability permanent in
                nature resulting from a service-connected disability sustained during
                a period of qualifying service.
38 U.S.C. § 3501(a)(1)(D)(i). Thus, by the plain language of section 3501(a)(1) (D)(i), a person who
is a spouse of a person who has a service-connected total and permanent disability is an eligible
person, and by the plain language of section 3512(b)(1)(A) anyone made eligible by section
3501(a)(1) (D) may be afforded educational benefits "during the 10-year period beginning on the date
(as determined by the Secretary) the person becomes an eligible person within the meaning of section
. . . 3501(a)(1)(D)(i)." (emphasis added).
        Although the Secretary correctly notes that he is to determine the beginning of the 10-year
delimiting period, his discretion is not unfettered.      Again, under the very terms of section
3512(b)(1)(A), the beginning date for eligibility for DEA benefits, as determined by the Secretary,
is when the person becomes an eligible person within the meaning of section 3501(a)(1)(D)(i). This
section has two criteria. First, a person is not eligible unless that person is a spouse. Second, that
person must be the spouse of a "person who has a total disability permanent in nature resulting from
a service-connected disability sustained during a period of qualifying service."           38 U.S.C.
§ 3501(a)(1)(D)(i). The Secretary certainly has the authority to confirm both of these criteria;
however, in this instance, confirmation of these criteria is not contested. Accordingly, pursuant to
section 3512(b)(1)(A), Mrs. Cypert became an "eligible person," thus triggering the 10-year eligibility
period for DEA benefits, when she married Mr. Cypert, since both criteria were satisfied at that time.
                                   B. The Secretary's Contentions
                                       1. Section 3512(b)(1)(B)
        The Secretary contends that the beginning date, as determined by him, is limited by

                                                  4
section 3512(b)(1)(B), which states in pertinent part:
                (B) Notwithstanding subparagraph (A), an eligible person referred to
                in that subparagraph may, subject to the Secretary's approval, elect a
                later date for the 10-year period that would otherwise be applicable to
                the person under that subparagraph. The beginning date so elected
                may be any date between the beginning date determined for the person
                under subparagraph (A) and whichever of the following dates applies:

                            (i) The date on which the Secretary notifies the
                        veteran from whom eligibility is derived that the
                        veteran has a service-connected disability permanent in
                        nature.
It is not clear why the Secretary believes this section authorizes him to determine a beginning date
other than the one established by section 3512(b)(1)(A). By its very terms, section 3512(b)(1)(B)
permits an eligible person to select an alternate date, if the Secretary permits; absent such an election
or lack of permission, the beginning date is the one established by section 3512(b)(1)(A). Assuming
arguendo that the Secretary would authorize an alternate date in this case, Mrs. Cypert has not elected
one. Moreover, the phrase "for the 10-year period that would otherwise be applicable to the person
under subparagraph (A)," reinforces the fact that section 3512(b)(1)(A), by and of itself, establishes
a beginning period. See Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989) ("It is a
fundamental canon of statutory construction that the words of a statute must be read in their context
and with a view to their place in the overall statutory scheme."); see also Reno and Kilpatrick, both
supra. And, as noted above, that 10-year eligibility period begins when a person is "made eligible
by subparagraph (B) or (D) of section 3501(a)(1) of title [38 USCS § 3501(a)(1)]." 38 U.S.C.
§ 3512(b)(1)(A). Succinctly, stated, the Secretary's reliance on section 3512(b)(1)(B) for authority
to unilaterally set the beginning of the 10-year DEA eligibility period on the date the veteran is
notified that he is totally and permanently disabled, or any other date, is misplaced and without merit.
                                2. The Purpose Behind DEA Benefits
        The Secretary also argues that DEA benefits were intended to assist spouses only during the
initial period of adjustment, and that this supports his interpretation that the 10-year DEA eligibility
period in this case began when Mr. Cypert received his status as a permanently and totally disabled
veteran, and expired before he married the current Mrs. Cypert. However, 38 U.S.C. § 3500 states


                                                   5
the purpose behind DEA benefits, and it does not support the Secretary's argument. As stated in
pertinent part, DEA benefits are intended to assist spouses of veterans "in preparing [them] to support
themselves and their families at a standard of living level which the veteran, but for the veteran's[]
service-connected disability, could have expected to provide for the veteran's family." 38 U.S.C.
§ 3500; see also Gardner, Reno, and Kirkpatrick, all supra (examining a statute's meaning within
context of statutory scheme); 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))). Noting in section 3500, or elsewhere in the
statutory scheme, is there an expressed intention to limit DEA benefits to the initial period of
adjustment, as argued by the Secretary. Moreover, the Court cannot read into a statute an alternative
purpose premised on congressional intent. Cf. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522,
530 (1959) (when examining an Ohio statute, stating that "[h]aving themselves specifically declared
their purpose, the Ohio statutes left no room to conceive of any other purpose for their existence").
Therefore, the Secretary's reliance on a June 2001 statement made by the Deputy Secretary of
Veterans Affairs to Congress, in which he contended that section 3512 should be read to suggest that
the educational benefits provided to a spouse should be limited to an initial period of adjustment for
the veteran as a result of his total and permanent disability, is misplaced to the extent that Congress
did not articulate that command in crafting the version of the statute at issue here.
                                          3. The Ozer Case
       The Secretary correctly notes that the current and applicable version of section 3512
authorizing DEA benefits for spouses was promulgated by Congress in response to the Court's
decision in Ozer v. Principi, 14 Vet.App. 257 (2001). The Court in Ozer invalidated the Secretary's
then-implementing regulation, 38 C.F.R. § 21.3046 (2001), because it limited DEA benefits to a 10-
year period beginning after the date on which the Secretary determined that the veteran had a total
disability permanent in nature. The Secretary argued that the regulation was based upon the statutory
language in 38 U.S.C. § 3512(b)(1)(A)-(C) (2000), however, the Court held that although the statute
provided a 10-year period in which benefits were available, that period did not begin to run until after
the veteran died. There is no dispute that Congress thereafter changed the statute to clearly provide
a 10-year period of benefits tied to a date other than the death of the veteran. However, Congress did


                                                   6
not, as the Secretary argues, start that 10-year eligibility period on the date the veteran became totally
and permanently disabled. Rather, as we discuss above, Congress established the beginning date of
the eligibility period as the date the spouse became an "eligible person" within the meaning of section
3501(a)(1)(D)(i), with optional beginning dates permitted under section 3512(b)(1)(B) at the election
of the spouse and with permission of the Secretary. See 38 U.S.C. § 3512(b)(1)(A).
                           C. The Implementing Regulation, 38 C.F.R. § 21.3046
         The regulation promulgated by the Secretary to implement section 3512 states in pertinent
part:
                  (iii) For spouses for whom VA made a final determination of
                  eligibility after October 27, 1986, shall be –
                  (A) The effective date of the rating, or
                  (B) The date of notification, or
                  (C) Any date between the dates specified in paragraphs (a)(2)(iii) (A)
                  and (B) of this section as chosen by the eligible spouse.
38 C.F.R. § 21.3046. The Secretary may not, by regulation, establish a beginning date inconsistent
with the express language of the statute. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843 n. 9 (1984) ("The judiciary is the final authority on issues of statutory construction
and must reject administrative constructions which are contrary to clear congressional intent.")
Accordingly, to the extent that the regulation interprets and implements section 3512 to limit the
beginning date of the 10-year DEA delimiting period to the date the Secretary determines that a
veteran's total rating is permanent in nature or the date that the Secretary notifies the veteran of this
determination, it is contrary to the plain meaning of section 3512 and its legislative purpose.2
Although agency regulations may be entitled to deference, see Chevron U.S.A., Inc., 467 U.S. at 843-
45 (Court gives deference to executive department's regulation making reasonable interpretation of
statutory scheme), deference is not warranted when the Secretary's interpretation is contrary to the


         2
             The plain language of the Secretary's implementing regulation is subject to an interpretation and application
consistent with the statute; i.e., that the word "rating" refers to the rating decision issued by a VA regional office (RO)
that determines the eligibility of the spouse under 38 U.S.C. § 3501, as argued by Mrs. Cypert. Because the regulation
permits an interpretation consistent with the regulation, we need not invalidate the regulation at this time. Rather, it is
the Secretary's interpretation and application of the regulation that we find contrary to statute, and therefore
impermissible. See, e.g., Dolese v. Office Depot, Inc., 231 F.3d 202, 203 (5th Cir. 2000) (invalidating regulation only
to extent it was contrary to statute); Foxglenn Investors Ltd. Partnership v. Cisneros, 35 F.3d 947, 952 (4th Cir. 1994).



                                                             7
plain meaning of the statutory language. See also Paralyzed Veterans of Am. v. Ellerbe Becket
Architects and Engs., P.C., 950 F. Supp. 389, 392 (D.D.C. 1996) ("An agency is empowered to
interpret its own regulations so long as such interpretation is reasonable in light of the text and
purpose of the statute and consistent with the statute and regulation." (citing Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 514-15, (1994))). Therefore, because the Secretary's interpretation
and application of 38 C.F.R. § 21.3046 in this instance are contrary to the authorizing statute, the
Board's December 13, 2006, decision, which rests on that interpretation and application, will be
reversed.


                                       III. CONCLUSION
       After consideration of the appellant's and the Secretary's briefs, the oral argument, and a
review of the record, the Board's December 13, 2006, decision denying Mrs. Cypert DEA benefits
because she was not an eligible person before her husband's period of eligibility for DEA benefits
expired is REVERSED, and the matter is REMANDED for further adjudication consistent with this
opinion.




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