Sunday, March 13, 2011

Frederick v. Shinseki, No. 09-0433 (Decided March 11, 2011); DIC; 38 U.S.C. § 103(d)(2)(B)

Excerpt from decision below:
"Read as a whole and in context of the veterans benefits statutory scheme, with recognition that Congress knows how to draft legislation with an explicit filing window and did not do so here, the plain language of the uncodified portion of the Public Law requiring an application for DIC to be submitted within one year of enactment of the Public Law does not apply to a surviving spouse seeking reinstatement of DIC. Rather, reinstatement of DIC benefits is governed by 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114, which permit reinstatement of DIC based upon sua sponte review by the Secretary or upon request by the surviving spouse, with an effective date up to one year earlier than such review or request."

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0433
RUTH HILL FREDERICK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals
(Argued November 23, 2010 Decided March 11, 2011)

Paul M. Schoenhard, of Washington D.C., for the appellant.
Robert Schneider, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, were on the brief, all from Washington, DC, for the appellee.

Before KASOLD, Chief Judge, and HAGEL and MOORMAN, Judges.

KASOLD, Chief Judge, filed the opinion of the Court.

KASOLD, Chief Judge: Mrs. Ruth Hill Frederick is the remarried surviving spouse of World War II veteran Fred T. Hill. She appeals through counsel a November 19, 2008, decision of the Board of Veterans' Appeals (Board) that denied restoration of dependancy and indemnity compensation (DIC) because she did not file an application for DIC within one year from the date of the enactment of Public Law 108-183 (Public Law), much of which is codified at 38 U.S.C. § 103(d)(2)(B) (2003). Mrs. Frederick essentially argues that the requirement for applying for DIC within one year of enactment of the Public Law applies only to those who, for whatever reason, had never applied for DIC prior to enactment of the Public Law and that this requirement does not apply to her, a surviving spouse seeking reinstatement of such benefits. The Secretary disputes Mrs. Frederick's interpretation of the statute. For the reasons set forth below, the Board's decision will be reversed and the matters remanded for further adjudication.

I. BACKGROUND
Mr. Hill had active service from September 1942 to July 1945. Subsequent to Mr. Hill's death on May 26, 1970, his surviving wife, Ruth Hill, was found to be entitled to and awarded DIC benefits. On December 4, 1986, at the age of 57, Ruth Hill remarried and notified the Secretary of her remarriage. At that time, the law did not authorize the continuation of DIC payments for surviving spouses if they remarried, 38 U.S.C. §§ 101, 103 (1986), and such payments to Mrs. Ruth
Hill Frederick stopped.
On December 16, 2003, Congress amended the law to authorize DIC for surviving spouses even if they remarried, provided the remarriage occurred after the surviving spouse attained the age of 57. Veterans Benefit Act of 2003, Pub. L. No. 108-183, § 101, 117 Stat. 2651, 2652-53 (2003); see also 38 U.S.C. § 103(d)(2)(B) (2003). Upon learning of this change in law, Mrs. Frederick sought reinstatement of her DIC payments in November 2007. However, the Board denied her request because she sought reinstatement more than one year after passage of the Public Law. The Board based its denial on an interpretation of a provision of the Public Law that has not been codified. The Board interpreted this provision as requiring the submission of a new application for DIC within one year of enactment of the Public Law, even for those surviving spouses who previously were receiving DIC and otherwise needed only to have DIC reinstated. The uncodified provision states:
In the case of an individual who but for having remarried would be eligible for benefits under title 38, United States Code, by reason of the amendment made by subsection (1) and whose remarriage was before the date of the enactment of this Act and after the individual had attained age 57, the individual shall be eligible for such benefits by reason of such amendment only if the individual submits an application for such benefits to the Secretary of Veterans Affairs not later than the end of the one-year period beginning on the date of the enactment of this Act. 117 Stat. at 2652-53.1

1. The codified statute, 38 U.S.C. § 103(2)(B), states that "[t]he remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of benefits specified in paragraph (5) to such person as the surviving spouse of
the veteran," and does not include the provision in Pub. L. No. 108-183 that requires an application for DIC to be

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Succinctly stated, the issue before the Court is the scope of Public Law 108-183 and whether the uncodified provision requiring an application for DIC to be submitted within one year of enactment of the Public Law applies to a surviving spouse seeking reinstatement of DIC.

II. THE PARTIES' ARGUMENTS
Mrs. Frederick focuses on the language of the Public Law, which she contends has four requirements to establish entitlement to DIC for a surviving spouse who remarried prior to enactment of the Public Law: (1) The surviving spouse must be eligible for benefits "but for having remarried," (2) the remarriage must have occurred after the surviving spouse has attained the age of 57, (3) the remarriage must have occurred before December 16, 2003, and (4) an application for DIC must be
submitted no later than December 15, 2004. The parties do not dispute that Mrs. Frederick meets the first three requirements. As to the fourth requirement, Mrs. Frederick notes that she submitted her application for DIC, shortly after her veteran-husband died, well before December 15, 2004, and was found entitled to DIC benefits. Mrs. Frederick essentially reasons that the time limit to submit
an application for DIC provided in the Public Law effectively applies only to those claimants who remarried after attaining the age of 57 and prior to enactment of the Public Law, but who had never previously applied for DIC; these claimants are the ones required to submit an application for DIC no later than December 15, 2004. Otherwise stated, Mrs. Frederick essentially contends she was not applying for DIC; rather she was seeking reinstatement of DIC.2
The Secretary also focuses on the language of the Public Law, but he contends the statute clearly creates a one-year window (from December 16, 2003 (date of enactment of the Public Law)

submitted before the end of the one-year period after enactment of the Public Law. The statutes at large are legal evidence of the laws. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 (1993). Thus, Pub. L. No. 108-183 is controlling law.

2. Mrs. Frederick also focuses on the Secretary's regulation, 38 C.F.R. § 3.55(a)(10)(ii) (2010), which essentially parrots the statute, and notes that whereas the Public Law requires "an application" to be submitted, the regulation states
"the application" must be submitted. Because the Secretary eschewed any intent to change the substance of the statute by using "the" instead of "an," we do not further address this part of Mrs. Frederick's argument. See Gonzales v. Oregon,
546 U.S. 243, 257 (2006) (holding that if an agency regulation parrots the law, the question presented is one of statutory interpretation); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); Sharp v. Shinseki, 23 Vet.App. 267, 276 (2009).

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to December 15, 2004) in which all surviving spouses who remarried after the age of 57 and prior to enactment of the Public Law are required to apply for DIC, including reinstatement of DIC, or forever forgo such benefit. The Secretary argues that the phrase "submits an application" supports his interpretation because it is prospective in nature, which indicates that a new application must be submitted and that past applications are not acceptable. The Secretary also argues that any other
interpretation creates an absurd result because it swallows the rule, and he further relies on the legislative history, which he argues clearly supports his interpretation.

III. DISCUSSION
The Court interprets a statute de novo. See 38 U.S.C. § 7261(a)(1); Majeed v. Nicholson, 19 Vet.App. 525, 530-31 (2006); see also Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003)("[I]nterpretation of a statute or regulation is a question of law . . . ."). "[T]he starting point in every case involving construction of a statute is the language itself." Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 472 (1977). "Where the plain meaning of a statute is discernable, that 'plain meaning must be given effect' . . . ." Tallman v. Brown, 7 Vet.App. 453, 460 (1995) (quoting Gardner v. Derwinski, 1 Vet.App. 453, 587 (1991)). "Determining a statute's plain meaning requires examining the specific language at issue and the overall structure of the statute." Gardner, 1 Vet.App. at 586
(citing Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05 (1988)).
A. The Public Law does not create a one-year window for reinstatement of DIC.
Starting with the plain language of the Public Law, we note that, contrary to the Secretary's interpretation, it does not create a one-year "window" in which to submit an application. Rather, the language very clearly creates only an end date by which an application must be submitted. To wit, the Public Law states that "an application" must be submitted "not later than the end of the one-year period beginning on the date of the enactment." 117 Stat. at 2653 (emphasis added).
There also can be no doubt that Congress knows how to create a window of time when it so desires. Indeed, in the same Public Law in which Congress created this end-date provision, it amended another statutory provision dealing with veterans benefits by replacing an explicitly provided window, (to wit: "during the 1-year period"), with an end-date provision similar to the end date provision applicable here, (to wit: "before the end of the one-year period beginning on the date

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of the enactment of [the Public Law]"). See id. (amending Veterans Benefits Act of 2002, Pub. L. No. 107-330, 116 Stat. 2820, 2822 (2002)); Atl. Cleaners & Dryers v. United States, 286 U.S. 427, 433 (1932) (stating that there is a "natural presumption that identical words used in different parts of the same act are intended to have the same meaning"); Talley v. Derwinski, 2 Vet.App. 282, 286
(1992) ("'[E]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole.'" (quoting 2A N. SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (4th ed. 1984))).
The Secretary suggests that the universe of persons affected by this Public Law provision includes only those who previously applied for benefits. He further reasons that if the universe of persons affected by this portion of the Public Law is only those who previously applied for DIC, then all such persons would have met the end date for submission of an application, rendering any such interpretation of the uncodified provision of the Public Law meaningless. The Secretary's universe
of persons, however, is ill defined. Specifically, it ignores the fact that there likely are surviving spouses who remarried after the age of 57 and prior to enactment of the Public Law who never applied for DIC prior to enactment of the Public Law. Under the plain wording of the statute – which sets an end date for application – these individuals clearly would have to submit an application no later than December 15, 2004, or forever lose their benefits. Thus, the plain language interpretation is not rendered meaningless and is not absurd, as the Secretary suggests.

B. The Public Law does not specifically address reinstatement of DIC.
Although the Secretary contends that the Public Law requires an application for the
reinstatement of DIC for those whose remarriage previously imposed a bar to continued receipt of DIC, he points to no language in the Public Law specifically addressing reinstatement of DIC or review of one's entitlement to DIC. Further undercutting the Secretary's suggested interpretation of the Public Law is the absence of any regulation requiring an application for reinstatement of DIC
and a past practice that has not always required such an application. For example, the termination of a second marriage by death or divorce results in the reinstatement of DIC payments without another "application," if the surviving spouse previously had been found eligible for DIC. 38 C.F.R. § 3.55(a) (2010); see also Owings v. Brown, 8 Vet.App. 17, 18 (1995) (surviving spouse "notified"
regional office (RO) of divorce and "wished to begin receiving DIC"); Vecina v. Brown, 6 Vet.App.

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519, 521 (1994) (surviving spouse "corresponded" with RO, "requesting reinstatement of" DIC); Dowlen v. Principi, 3 Vet.App. 507, 507 (1992) (surviving spouse "submitted a request" for DIC to be reinstated).
Moreover, VA regulations provide only one form with regard to seeking DIC, and that is the form for an initial application for DIC. See VA Form 21-534. This form requires the applicant to provide information about the death of the veteran and the veteran's service, yet this information is not required for reinstatement of DIC because entitlement based on the veteran's status was established when DIC first was awarded. Thus, the uncodified portion of the Public Law referencing
an application logically refers to the initial application for benefits, consistent with Mrs. Frederick's interpretation, and consistent with the plain wording of the Public Law that provides an end date for submission of an initial application as opposed to a window in which a second or additional application must be submitted.

C. A one-year window to request reinstatement of DIC is inconsistent with the statutory scheme and purpose.
Not only does the plain language of the Public Law not create a one-year window or
specifically address reinstatement of DIC, the Secretary's interpretation that reinstatement must be sought by re-application within a one-year window is inconsistent with the statutory scheme for veterans benefits. Congress has provided that the effective date for an award or increase of benefits(explicitly including DIC) due to a liberalizing law shall be based on the facts found, but not earlier
than the date of the liberalizing law. See 38 U.S.C. § 5110(g). This same statutory provision also provides for a retroactive effective date up to one year prior to the date of application or the date of administrative determination. Id. And, the Secretary's implementing regulation provides for review of a claim at either the request of the claimant or the initiative of the Secretary, and an effective date
up to one year earlier than such review. 38 C.F.R. § 3.114 (2010).
In this case, the Secretary undertook a review of Mrs. Frederick's claim for reinstatement of DIC, not at his own initiative, but at her request. Pursuant to the Secretary's own regulation, Mrs. Frederick may be authorized benefits up to one year prior to her request for reinstatement of DIC. Nothing in section 5110(g) or § 3.114 limits the submission of an application for reinstatement of benefits, an administrative review, or submission of a request for review of entitlement to benefits,

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to only a one-year window after enactment of a liberalizing law, and, in the absence of congressional intent to create such a limitation, no such limitation should be read into the Public Law. See Talley, supra.
Moreover, the Secretary's interpretation would create a limitation to the award of DIC that would be inconsistent with the general purpose of the Public Law, which was make more equitable the veterans benefits system and, more specifically, to provide that "the remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of benefits." 38 U.S.C. § 103(d)(2)(B)(2010); 117 Stat. at 2651. Similarly, the Secretary's interpretation conflicts with the overall purpose and fairness of the veterans benefit system. "Congress' intent in crafting the veterans benefit system is to award 'entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.'" Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006) (quoting Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 2006) (Michel, J., concurring)). "[I]n the context of veterans' benefits where the system of awarding compensation is so uniquely pro-claimant, the importance of systemic fairness and the appearance of fairness carries great weight." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).
In sum, in the absence of clear, unambiguous congressional language supporting the
Secretary's reading of the Public Law that it creates a one-year window for all surviving spouses to seek reinstatement of DIC benefits, the Secretary's interpretation is not reasonable or warranted. See Sursely v. Peake, 551 F.3d 1351, 1357 (Fed. Cir. 2009) (stating that, under Brown v. Gardner, 513 U.S. 115, 118 (1994), the government's interpretation is only permitted if it is unambiguously
supported by the statutory language).

D. Prospective requirement to submit an application must be read in context.
Although the Secretary correctly argues that the phrase "submits an application" as used in the Public Law indicates that a new application is needed to secure DIC, that phrase must be considered in context. See King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) ("[T]he meaning of statutory language, plain or not, depends on context."); Cal. Indus. Prods., Inc. v. United States, 436 F.3d 1341, 1353 (Fed. Cir. 2006) ("When a particular term is not expressly defined in a statute, the meaning of that term may be discerned by 'look[ing] to the provisions of the whole law, and to

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its object and policy.'" (quoting Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1355 (Fed. Cir. 2003))); see, e.g., Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 25 n.6 (1988) ("'Words are not pebbles in alien juxtaposition; they have only communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which the are used . . . .'" (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (L. Hand, J.))). As discussed above, the Public Law does not specifically address reinstatement of DIC nor does it create a one-year window in which an application for DIC must be submitted. As discussed above, consistent with the overall statutory scheme, anyone who previously applied for and was entitled to DIC could have their benefits reinstated sua sponte by the Secretary, or upon request, without submission of another application. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. Thus, in context, the phrase "submits an application," although prospective in nature, applies only to those who had not applied for DIC prior to passage of the Public Law, and cannot be interpreted to apply to what Congress did not otherwise specifically address in the Public Law, i.e., review of entitlement to or reinstatement of DIC. Cf. Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("[A]
functioning system of laws must give primacy to the plain language of authorities . . . . Without standard word meanings and rules of construction, neither Congress nor the Secretary can know how to write authorities in a way that conveys their intent and no practitioner or – more importantly – veteran can rely on a statute or regulation to mean what it appears to say.").

E. Legislative history cannot trump plain meaning of statute.
We acknowledge the Secretary's reference to (1) a congressional compromise agreement that states that spouses who had remarried on or before age 57 and before the enactment of the Public Law "would have one year to apply for the reinstatement of these benefits," 149 CONG. REC. S15,133-01 (daily ed. Nov. 19, 2003) (statement of Rep. Specter), and (2) a congressional cost benefit analysis that considered only the cost associated with surviving spouses who reapplied for reinstatement of benefits within a one-year period, H.R. REP. NO. 108-211, at 2315-16, 2332 (July
15, 2003). Standing alone, these legislative references are reason for pause, but they do not stand alone.
We start with the axiom that legislative history is not legislation and cannot trump the plain meaning of the legislation. See Van Wersch v. Dep't of Health & Human Servs., 197 F.3d 1144,

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1152 (Fed. Cir. 1999) (holding that congressional intent, as clearly expressed in legislative history, cannot "trump the irrefutably plain [statutory] language that emerged when Congress actually took pen to paper"); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 567 (2005)(stating that legislative history is "often murky, ambiguous, and contradictory"); United States v. LaBonte, 520 U.S. 751, 757 (1997) ("[W]e assume that in drafting this legislation, Congress said
what it meant."); Ratzlaf v. United States, 510 U.S. 135, 147 (1994) (holding that even where "[t]here are . . . contrary indications in the statute's legislative history. . . . we do not resort to legislative history to cloud a statutory text that is clear").
Similarly, it is axiomatic that, had Congress wanted to limit reinstatement of DIC for remarried surviving spouses, as opposed to providing a limited time during which those remarried surviving spouses who had never sought DIC could apply for such benefits, it easily could have done so in the text of the Public Law, but did not. See Cypert v. Peake, 22 Vet.App. 207, 311 (2008)("[T]he Court cannot read into a statute an alternative purpose premised on congressional intent.").
Moreover, the overall legislative history is, at best, ambiguous, and even if it could trump the statutory text, any ambiguity necessarily would be resolved in favor of Mrs. Frederick. Cf. Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of VA, 260 F.3d 1365, 1378 (Fed. Cir. 2001) ("[I]t is a well established rule of statutory construction that when a statute is ambiguous, 'interpretive doubt is to
be resolved in the veteran's favor.'" (quoting Brown v. Gardner, 513 U.S. at 118)); see also Sursely, supra. Although the Secretary cites legislative history supporting an interpretation of the statute other than its plain meaning, the fact, as noted above, that (1) Congress amended existing language in the same Public Law creating a window for submission of an application for benefits to instead
create an end date by which an application must be submitted, and (2) the Public Law does not specifically address reinstatement of DIC or re-evaluation of entitlement to DIC, supports an interpretation of the statute that is consistent with its plain meaning, to wit: The uncodified provision establishes an end date – not a window – for submission of an application for DIC by a remarried surviving spouse who had not submitted an application prior to enactment of the Public Law.
Accordingly, this provision does not apply to a remarried surviving spouse, such as Mrs. Frederick, seeking reinstatement of DIC.

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IV. CONCLUSION
Read as a whole and in context of the veterans benefits statutory scheme, with recognition that Congress knows how to draft legislation with an explicit filing window and did not do so here, the plain language of the uncodified portion of the Public Law requiring an application for DIC to be submitted within one year of enactment of the Public Law does not apply to a surviving spouse seeking reinstatement of DIC. Rather, reinstatement of DIC benefits is governed by 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114, which permit reinstatement of DIC based upon sua sponte review by the Secretary or upon request by the surviving spouse, with an effective date up to one year earlier than such review or request.
Accordingly, the Board's decision denying DIC will be reversed and the matters remanded for reinstatement of DIC and a determination of the proper effective date. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (reversal is the appropriate remedy in cases in which the only permissible view of the evidence is contrary to the Board's decision); Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). On remand, Mrs. Frederick may present, and the Board must consider, anyadditional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534, (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.
The Board's decision that Mrs. Frederick was not entitled to reinstatement of DIC because she did not submit an application within a one-year window from December 16, 2003, to December 15, 2004, is REVERSED, and the matters are REMANDED for further adjudication consistent with this opinion.
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Bartlett v. Shinseki, No. 08-4092 (Argued December 7, 2010 Decided March 10, 2011); 38 U.S.C. § 1151; Hospital Care;

Excerpts from decision below:

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"Additionally, the Board's definition of "hospital care" as "limited only to treatment or examination" is not in accordance with law.
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Third, the Board's definition does not give effect to the plain meaning of the words "care," "treatment," and "examination," which are definitionally distinct.7
Moreover, the Board's suggestion that an injury resulting from an altercation with a third party cannot be an injury caused by "hospital care" for the purposes of section 1151 is misguided.


footnote 7 "Treatment" is defined as, inter alia, "medical care given to a patient for an illness or injury." OXFORD at 1844. "Examination" is defined as, inter alia, "a detailed inspection or investigation." Id. at 602. "Care" is defined above at section III.B, supra."

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-4092
MICHAEL J. BARTLETT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals
(Argued December 7, 2010 Decided March 10, 2011)

James Peyster, of Washington, D.C., for the appellant. James F. McKeown, also of
Washington D.C., was on the brief for the appellant.

Mark M. McNabb, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; and Joan E. Moriarty, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.

Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.

KASOLD, Chief Judge: Michael J. Bartlett appeals through counsel a September 17, 2008, Board of Veterans' Appeals (Board) decision that denied his claim for disability compensation pursuant to 38 U.S.C. § 1151 (providing for compensation for VA fault in certain circumstances), because it was predicated on injuries received from an attack by another patient while Mr. Bartlett was admitted to a VA hospital, which the Board concluded was outside the scope of section 1151.
Mr. Bartlett disputes this understanding of the law. The Secretary seeks affirmance of the Board decision. For the reasons set forth below, the decision of the Board will be set aside and the matters remanded for further adjudication consistent with this decision.

I. FACTS
The Board's determination was based on VA hospital treatment records and the allegations of Mr. Bartlett, which are as follows. Mr. Bartlett served on active duty in the U.S. Army from August 1968 to May 1971. On August 8, 1989, Mr. Bartlett was transferred from the Larimer County jail to a lock-down psychiatric ward at Fort Lyon VA medical center, pursuant to a court order requiring a psychiatric evaluation before the expiration of his 30-day sentence for carrying a firearm. On August 14, while standing in line at the hospital cafeteria authorized for lock-down
psychiatric-ward patients, Mr. Bartlett was shoved by another psychiatric-ward patient. Although nursing staff intervened and returned the aggressor to the line, the aggressor eluded them and shoved Mr. Bartlett a second time. 1 Additionally, Mr. Bartlett consistently has stated that (1) he suffered back and neck injuries resulting from this altercation, (2) he was required to go to the cafeteria for meals if he wanted to be fed, and that (3) two hospital staff members were required to escort the aggressor-patient, as VA hospital personnel considered him dangerous.
Mr. Bartlett's present appeal arises from his October 2002 claim for benefits pursuant to section 1151. Ultimately, on administrative appeal, the Board denied compensation "as a matter of law," concluding that "the fact pattern as alleged by the veteran falls outside the current scope of 38 U.S.C. § 1151." Record (R.) at 11. Specifically, the Board determined that Mr. Bartlett "was not injured as a result of hospital care. That is to say, his situation did not arise as a result of the provision of care by the hospital specifically, limited only to treatment or examination rendered by VA." R. at 11. The Board also found that Mr. Bartlett "was not injured as a result of hospital care but rather as a result of an altercation with another patient," which was "merely a coincidental event." R. at 10, 11. This appeal followed.
Succinctly stated, the primary issue before the Court is whether the term "hospital care" under section 1151 includes general supervision of patients in a lock-down psychiatric ward, or, more specifically, protecting a patient from other patients known to be potentially hostile.

II. THE PARTIES' ARGUMENTS
On appeal, Mr. Bartlett argues that the Board erred in holding that his injury fell outside the

1 The incident report reads as follows: "Incident - MDR - While standing in line at MDR [undecipherable term] about 1700 hrs this patient was shoved by another patient. Nursing staff interred [sic] and other patient got back in line, then suddenly rushed forward and shoved the patient again. Staff report the attack was not provoked by Mr. Bartlett. Patient returned to unit and stated he has a whiplash with pain in left side of upper shoulder and neck." Record (R.) at
511.

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scope of section 1151, and that the Board's interpretation of "hospital care" as "limited only to treatment or examination" (R. at 11) violates fundamental principles of statutory interpretation.
Rather, he asserts that "hospital care" includes the supervision of dangerous patients in a lock-down ward, and that section 1151 should at least encompass his circumstances, where an injury results from hospital orderlies' negligence during that supervision.
Conversely, the Secretary argues that the Board correctly applied this Court's precedent and did not err. He argues that the Board did not make any finding that the orderlies were negligent, and he also contends that Mr. Bartlett's injuries were caused by another patient, not "hospital care." In support of his argument, the Secretary cites (1) Mangham v. Shinseki, 23 Vet.App. 284, 287 (2009), for the proposition that injuries resulting from acts occurring coincidentally with "hospital care, medical or surgical treatment, or an examination" are not sufficient bases for receiving benefits under section 1151, and (2) Jackson v. Nicholson, 433 F.3d 822, 826 (Fed. Cir. 2005), for the notion that, as of October 1, 1997, section 1151 no longer awards benefits for injuries occurring as a result of a patient's general experience of hospitalization. The Secretary additionally argues that the Federal Tort Claims Act (FTCA) is a more apt avenue for providing Mr. Bartlett a remedy.

III. ANALYSIS
A. Section 1151 and Fault
Section 1151 authorizes compensation for certain disabilities in the same manner as if the disabilities were service connected. 38 U.S.C. § 1151 (entitled "Benefits for persons disabled by treatment or vocational rehabilitation"). It is well established that, post-October 1, 1997, section 1151 requires fault on the part of VA. See id. (awarding compensation if, inter alia, "the disability or death was caused by hospital care, medical or surgical treatment, or examination" and "the
proximate cause of the death or disability was . . . carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault").2 Therefore, if Mr. Bartlett were arguing that he is entitled

2 Prior to October 1, 1997, compensation was awarded under section 1151 for injuries that occurred "as the result of [VA] hospitalization, medical or surgical treatment, or . . . having submitted to an examination." 38 U.S.C. § 1151 (1996). The statute was changed by, inter alia, replacing the term "hospitalization" with "hospital care" and additionally requiring a proximate cause of VA fault. See Pub. L. No. 104-204 (1996). The legislative history is clear that the change was generated to overturn the U.S. Supreme Court's decision in Brown v. Gardner, 513 U.S. 115 (1994), which held that fault was not an element of then-section 1151. See 69 Fed. Reg. 46,426, 46,429 (Aug. 3, 2004) (final

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to section 1151 benefits simply because he was in a VA hospital at the time another patient injured him, his argument would fail. See Jackson, 433 F.3d at 826 (noting that the term "hospital care" in section 1151 "implies the provision of care by the hospital specifically, as opposed to the broader, more general experience of a patient during the course of hospitalization"); Mangham, 23 Vet.App. at 289 ("Congress repudiated the notion that a coincidental event occurring during 'hospitalization' could lead to recovery under section 1151, purposefully replacing that word with 'hospital care.'").
This is because, as our precedents state, injuries resulting from acts purely coincident with VA hospital care, treatment, or examination are not entitled to compensation. See Mangham, 23 Vet.App. at 287 (holding that a mental distress injury resulting from a shooting at a VA domiciliary "'was coincidental to residing at a VA domiciliary and . . . not caused by the actual provision of hospital care, medical or surgical treatment[,] or examination'" (quoting Johnnie R. Mangham, BVA
05-07615, at 10 (Feb. 7, 2007))); Loving v. Nicholson, 19 Vet.App. 96, 100 (2005) (holding that an injury resulting from the fall of a ceiling grate during a VA examination was "coincidental to the examination and was not . . . caused by it"); see also NEW OXFORD AMERICAN DICTIONARY 337 (3d ed. 2010) [hereinafter OXFORD] (defining "coincidental" as, inter alia, "happening by chance").
However, Mr. Bartlett's argument is not that recovery is warranted because of the mere fact that his injury occurred while in a VA facility. Rather, he argues that the supervision of hospital patients in a lock-down psychiatric facility constitutes "hospital care" and the negligent performance of that supervision caused his injury.

B. Defining "Hospital Care"
Although our precedents mention "hospital care" in conjunction with "treatment" and
"examination," none have analyzed "hospital care" specifically detached from "treatment" and "examination." In Loving, the injury occurred during an outpatient examination at a VA clinic, and this Court's analysis centered on whether the fall of the ceiling grate during that examination "was caused by the VA examination," not "hospital care." Id. at 98, 100. In Mangham, the injury rule regarding 38 C.F.R. § 3.361 (2010), the implementing regulation for section 1151) ("The legislative history makes clear that the purpose of the amendment was to add a requirement for a showing of fault or negligence in addition to the causation requirement in the statute."); 142 CONG. REC. S9932 (daily ed. Sept. 5, 1996) (amended statute would "requir[e] that there be an element of fault as a precondition for entitlement to compensation for a disability or death resulting from health care or certain other services furnished by [VA]").

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occurred at a domiciliary and the matter at issue involved domiciliary care, which the Court determined was not a component of "hospital care." Id. at 288. In Jackson, although the U.S. Court of Appeals for the Federal Circuit instructed that "hospital care" was narrower than "the broader, more general experience of a patient during the course of hospitalization," it went no further in clarifying the meaning or scope of "hospital care." Id. at 826.
Thus, to determine whether the supervision of hospital patients in a lock-down psychiatric facility constitutes "hospital care," we must begin with the ordinary meaning of "care." Lee v. West, 13 Vet.App. 388, 394 (2000) ("'The starting point in interpreting a statute is its language.'" (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993))); see Jones v. Brown, 41 F.3d 634, 638 (Fed. Cir. 1994) ("In determining the plain meaning of statutory language, 'legislative purpose is expressed by the ordinary meaning of the words used.'" (quoting Ardestani v. INS, 502 U.S. 129, 136 (1991))). "Care" is defined as, inter alia, "the provision of what is necessary for the health, welfare, maintenance, and protection of someone or something." OXFORD at 263; see also WEBSTER'S NEW WORLD DICTIONARY 212 (3d ed. 1988) ("charge; protection; custody" or "something to watch over or attend to; a responsibility"). In the legal realm, "care" is defined as "the conduct demanded of a person in a given situation," typically in the context of "giving attention both to possible dangers, mistakes, and pitfalls and to ways of minimizing those risks." BLACK'S LAW DICTIONARY 240 (9th
ed. 2009).
At oral argument, Mr. Bartlett argued that "hospital care" is occurring whenever the VA is providing hospital services to its patients. We initially note that Mr. Bartlett's definition, invoking the notion of providing for or having responsibility over another, accords with the plain meaning of "care."
Conversely, the Secretary argued that "hospital care" should be limited to "medical services," as referenced in 38 U.S.C. § 1701(5), to wit:
The term "hospital care" includes –
(A)(i) medical services rendered in the course of the hospitalization of any
veteran, and (ii) travel and incidental expenses pursuant to the provisions of
section 111 of this title;(B) such mental health services, consultation, professional counseling,

5

marriage and family counseling, and training for the members of the
immediate family or legal guardian of the veteran . . . as the Secretary
considers appropriate for the effective treatment and rehabilitation of a
veteran or dependent or survivor of a veteran receiving care . . . .
However, as is evident by the plain language, section 1701(5)'s definition of "hospital care" is not limited to medical services. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1360 (Fed. Cir. 2001) (noting that a definition using the term "includes" is "open-ended"). Further, the enumerated examples of the section include "travel and incidental expenses," "marriage and family counseling, and training for the members of the [veteran's] immediate family," and other terms that make little sense when applied to section 1151, which weigh against implementing this definition of "hospital care" for section 1151. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69-70(1994) (assuming that Congress did not intend a statute to create odd or absurd results). We also note that, although Mangham mentioned section 1701(5), it used the statute to illustrate the difference between "hospital care" and "domiciliary care," not to adopt a definition of "hospital care" limited to medical services. See 23 Vet.App. at 288.
Also at oral argument, the Secretary rejected the notion that the definition of "hospital care," as provided by 38 U.S.C. § 1803(c)(4) (addressing care for the children of Vietnam veterans born with spina bifida), could aid in determining the meaning of "hospital care" in section 1151 because, by its own terms, the definition is directly applicable only to that section, see 38 U.S.C. § 1803(c)("For the purposes of this section"). Acknowledging no direct applicability, we nevertheless note that this definition may assist in evincing the meaning of "hospital care" as used in section 1151 for two reasons. First, unlike section 1701(5)'s open-ended definition, which includes many terms clearly not applicable to section 1151, section 1803(c)(4) provides a general definition that creates no friction with section 1151, to wit: "The term 'hospital care' means care and treatment for a disability furnished to an individual who has been admitted to a hospital as a patient." 38 U.S.C. § 1803(c)(4). Second, the definition of section 1803(c)(4) was introduced and passed in the same bill that added "hospital care" to section 1151, which may provide an indication of Congress's intent in using those words. See Erlenbaugh v. United States, 409 U.S. 239, 243-44 (1972) (the rule that "a legislative body generally uses a particular word with a consistent meaning . . . certainly makes the most sense when the statutes were enacted by the same legislative body at the same time"); Pub.

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L. No. 104-204 (1996).
Accordingly, after considering the plain meaning and other definitions of "hospital care" provided in veterans law, we agree with Mr. Bartlett that "hospital care," at a minimum, includes the provision of services unique to the hospitalization of patients. Such a definition accords with the plain meaning of "care," resembles section 1803(c)(4), and is in harmony with Jackson, 433 F.3d at 826 ("The term 'hospital care' implies the provision of care by the hospital specifically . . . .").
Although we will not further define "hospital care" or "patient" in the abstract, Edenfield v. Brown, 8 Vet.App. 384, 390 (1995) (refusing to deal with abstract concepts divorced from facts of the case), the determination as to whether a situation involves "hospital care" will depend on a variety of factors, including the nature of the services,3 the degree of VA control over patient freedom,4 the mental and physical conditions of the patients,5 and the foreseeability of potential harms.6 These are factors best considered by the Board in the first instance.

C. Application of Law
In its decision on Mr. Bartlett's claim, the Board found "as a matter of law" that "the fact pattern as alleged by the veteran falls outside the current scope of 38 U.S.C. § 1151." R. at 11.

3 See Bodin v. Vagshenian, 462 F.3d 481, 489 (5th Cir. 2006) ("A provider of psychological services has a heightened duty of care to its patients because of their vulnerability and the resulting special relationship."); Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 101-02 (Iowa 1971) (noting the differences between routine care and professional care).

4 See Galloway v. Baton Rouge Gen. Hosp., 602 So. 2d 1003, 1008 (La. 1992) (hospital has duty to protect patient from dangers "peculiarly within the hospital's control"); Becker v. Mayo Found., 737 N.W.2d 200, 212 (Minn. 2007) (hospital's duty to protect based on the fact that patients are "'particularly vulnerable and dependent on the [hospital], who in turn holds considerable power over the [patients'] welfare'" (quoting Donaldson v. Young Women's Christian Ass'n, 539 N.W.2d 789, 792 (Minn. 1995))); N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 252, 253 (N.Y. 2002)(hospital's "duty to safeguard the welfare of its patients . . . [is] measured by the capacity of the patient to provide for his or her own safety").

5 See Johnson v. Grant Hosp., 291 N.E.2d 440, 446 (Ohio 1972) ("A hospital owes a duty to its patients to exercise such reasonable care for their safety as their known mental and physical condition may require."); see also Hunt v. Bogalusa Cmty. Med. Ctr., 303 So. 2d 745, 747 (La. 1974); Harder v. F.C. Clinton, Inc., 948 P.2d 298, 304 (Okla. 1997); McGraw v. St. Joseph's Hosp., 488 S.E.2d 389, 396 (W.Va. 1997); Hofflander v. St. Catherine's Hosp., Inc., 664 N.W.2d 545, 572 (Wis. 2003).

6 See Bembenista v. United States, 866 F.2d 493, 498 (D.C. Cir. 1989) ("'Traditionally, relationships that were considered to give rise to a duty of one party to protect the other part[y] from foreseeable criminal acts of third persons have included the relationship [] of . . . hospital to patient . . . .'" (quoting Hall v. Ford Enters., Ltd., 445 A.2d 610, 611 n.4 (D.C. App. 1982)) (second alteration in original); Cabrini Med. Ctr., 97 N.Y.2d at 253 (while a hospital has no duty to keep each patient under constant surveillance, it does have duty to guard against reasonably foreseeable harms).

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Specifically, the Board determined that Mr. Bartlett's "situation did not arise as a result of the provision of care by the hospital specifically, limited only to treatment or examination rendered by VA." R. at 11. The Board also stated that Mr. Bartlett "was not injured as a result of hospital care but rather as a result of an altercation with another patient," which was "merely a coincidental event."
R. at 10, 11. Such statements reflect that the Board has applied the law incorrectly and remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate").
First, the Board clearly erred in finding the facts as alleged by Mr. Bartlett outside the scope of section 1151. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1991) ("'A finding is "clearly erroneous" when . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). Allegedly, Mr. Bartlett was a hospital patient in a lock-down psychiatric ward where VA staff had total control over his movement and mandated his presence at the cafeteria for meals. Allegedly, the facility contained patients who were mentally unstable and dangerous in such a foreseeable way that VA staff provided escorts to those individuals. Considering the aforementioned factors regarding whether a situation involves "hospital care," we have the firm conviction that the alleged situation involved "hospital care." See Gilbert, supra. If the Board adopts the alleged facts on remand, then the matters remaining to be resolved are whether the "hospital care" (1) was provided with "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" and (2) was the "proximate cause of the disability or death." 38 U.S.C. § 1151.
Additionally, the Board's definition of "hospital care" as "limited only to treatment or examination" is not in accordance with law. R. at 11. First, it does not accord with our holding above, that "hospital care" includes the provision of services unique to the hospitalization of patients.
Second, the Board's definition, limiting one enumerated term in a statute to two other enumerated terms in a statute, violates the cardinal principal of statutory construction that Congress does not insert superfluous, void, or insignificant words into its statute. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citing Duncan v. Walker, 533 U.S. 167, 174 (2001) and United States v. Menasche, 348

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U.S. 528, 538-39 (1955) ("It is our duty 'to give effect, if possible, to every clause and word of a statute' . . . ." (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)))). Third, the Board's definition does not give effect to the plain meaning of the words "care," "treatment," and "examination," which are definitionally distinct.7
Moreover, the Board's suggestion that an injury resulting from an altercation with a third party cannot be an injury caused by "hospital care" for the purposes of section 1151 is misguided.

There are circumstances where a third-party attack is not a coincidental event, see OXFORD at 337, and where that attack is indeed proximately caused by the negligent provision of VA hospital services to a hospital patient. We expressly reject the Secretary's argument that Mangham broadly held that injuries due to third-party actions in all situations are intervening acts and per se not caused by hospital care, treatment, or examination. 23 Vet.App. at 289. The attack in Mangham occurred in the cafeteria of a domiciliary facility and involved no medically related supervision of the veterans present at the time of the incident. Id. at 288.
Finally, we also reject the Secretary's argument that the availability of the FTCA as a remedy precludes the award of section 1151 benefits to Mr. Bartlett. Our precedents neither state nor imply any such preclusion. See Mangham, 23 Vet.App. at 288 n.1 (citing Sweitzer v. Brown, 5 Vet.App. 503, 506 (1993)); Loving, 19 Vet.App. at 101 (same); Sweitzer, 5 Vet.App. at 506 (acknowledging that veteran could have raised his claim "in a suit against the United States under the Federal Tort Claims Act," but not precluding benefits on that ground). Additionally, despite the fact that fault based claims against the United States are permitted under the FTCA, Congress nevertheless provided an additional avenue for veterans' fault-based claims in certain circumstances, e.g., when disability or death results from negligent hospital care, medical or surgical treatment, or examination furnished to a veteran under laws administered by the Secretary. 38 U.S.C. § 1151. Providing
multiple avenues of relief is not unusual with regard to veterans benefits. Cf. Ribaudo v. Nicholson, 21 Vet.App. 137, 144 (2007) (noting that veterans are uniquely provided "multiple layers of VA decision review . . . [and] two separate layers of appeal of right to independent judicial review");

7 "Treatment" is defined as, inter alia, "medical care given to a patient for an illness or injury." OXFORD at 1844. "Examination" is defined as, inter alia, "a detailed inspection or investigation." Id. at 602. "Care" is defined above at section III.B, supra.

9
Trilles v. West, 13 Vet.App. 314, 332 (2000) (noting that 38 U.S.C. § 5107(a) provides veterans a "unique standard of proof [that] is unlike that available to any other civil plaintiff or claimant"); see also Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) ("We assume that Congress is aware of existing law when it passes legislation.").

IV. CONCLUSION
Upon consideration of the foregoing, the September 17, 2008, Board decision is SET ASIDE and the matter is REMANDED for further development and readjudication consistent with this decision. On remand, Mr. Bartlett may also present, and the Board must consider, any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.
10