Appealed from: U.S. Court of Veterans Appeals. Judge Steinberg
Before Archer, Chief Judge,*fn* Mayer, and Plager, Circuit Judges.
The Secretary of Veterans Affairs appeals the judgment of the United States Court of Veterans Appeals, Skinner v. Brown, 3 Vet. App. 141 (1993), reversing the denial by the Board of Veterans Appeals of Suzanne V. Skinner's claim for benefits under the Restored Entitlement Program for Survivors. We affirm.
Skinner is the daughter of James Skinner, Jr., a Vietnam veteran who died in December 1987 as a result of a service-connected heart condition. At the time of her father's death, Skinner was eighteen years old and a full time student at the University of Alabama. More than one year later, she filed an application for benefits under the Restored Entitlement Program for Survivors, Pub. L. No. 97-377, § 156, 96 Stat. 1920 (1982) (set out as amended at 42 U.S.C. § 402 note (1988)) (REPS); the Department of Veterans Affairs awarded REPS benefits effective February 1989, the date of her application. Skinner filed a Notice of Disagreement, requesting that she receive benefits effective December 1987.
The Board of Veterans Appeals denied her claim, citing a VA regulation limiting retroactivity of REPS benefits to claims filed within eleven months of the date of the claimant's first eligibility. 38 C.F.R. § 3.812(f)(2)-(3) (1992).*fn1 The Court of Veterans Appeals reversed, relying on Cole v. Derwinski, 2 Vet. App. 400 (1992), on appeal sub nom. Cole v. Brown, No. 93-7003 (Fed. Cir. Feb. 7, 1994), in which it struck down subparagraphs (2) and (3) of 38 C.F.R. § 3.812(f) as contrary to the plain meaning of the REPS law. The court determined that since Skinner met all of the statutory requirements for REPS entitlement, she deserved benefits retroactive to December 1987, the month in which she first became eligible. The Secretary now appeals.
The sole question is whether those portions of 38 C.F.R. § 3.812(f) that establish a time-specific filing requirement for entitlement to REPS benefits*fn2 overstep VA authority under the relevant statute, Pub. L. No. 97-377, § 156, 96 Stat. 1920.*fn3 The answer depends on our construction of the statute, a task we perform de novo. 38 U.S.C. § 7292 (d)(1) (Supp. IV 1992); Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
We start with the language of the REPS statute, for "if the intent of Congress is clear, that is the end of the matter . . . . " Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). The statute provides for monthly payments to certain survivors of military personnel who die during service or as a result of service connected injury or disease. Under REPS, the VA "shall pay each month" benefits to each person
(A) who is the child of a member or former member of the Armed Forces described in subsection (c);*fn4
(B) who has attained eighteen years of age but not twenty-two years of age and is not under a disability as defined in section 223(d) of the Social Security Act (42 U.S.C. 423(d));
(C) who is a full-time student at a postsecondary school, college, or university that is an educational institution (as such terms were defined in section 202(d)(7)(A) and (C) of the Social Security Act as in effect before the Omnibus Budget ...