OCTOBER TERM, 1994
Syllabus
BROWN, SECRETARY OF VETERANS AFFAIRS
v.
GARDNER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
No. 93-1128. Argued October 31, 1994-Decided December
12,1994
After respondent veteran had back surgery in a Department of
Veterans Affairs facility for a condition unrelated to his military
service, he developed pain and weakness in his left leg, which he
alleged was the result of the surgery. He claimed disability
benefits under 38 U. S. C. § 1151, which requires the VA to
compensate for "an injury, or an aggravation of an injury," that
occurs "as the result of" VA treatment. The VA and the Board of
Veterans' Appeals denied the claim on the ground that § 1151, as
interpreted by 38 CFR § 3.358(c)(3), only covers an injury if it
resulted from negligent treatment by the VA or an accident
occurring during treatment. The Court of Veterans Appeals reversed,
holding that § 1151 neither imposes nor authorizes adoption of §
3.358(c)(3)'s fault-or-accident requirement. The Court of Appeals
for the Federal Circuit affirmed.
Held: Section 3.358(c)(3) is not consistent with the
plain language of § 1151, which contains not a word about
fault-or-accident. The statutory text and reasonable inferences
from it give a clear answer against the Government's arguments that
a fault requirement is implicit in the terms "injury" and "as a
result of." This clear textually grounded conclusion is also fatal
to the Government's remaining principal arguments: that Congress
ratified the VA's practice of requiring a showing offault when it
reenacted the predecessor of § 1151 in 1934, or, alternatively,
that the post-1934 legislative silence serves as an implicit
endorsement of the fault-based policy; and that the policy deserves
judicial deference due to its undisturbed endurance. Pp.
117-122.
5 F.3d
1456, affirmed.
SOUTER, J., delivered the opinion for a unanimous Court.
Edward C.
DuMont argued the cause for
petitioner.
With him on the briefs were Solicitor General Days, Deputy
Solicitor General Bender, and Tresa M. Schlecht.
116
Joseph M. Hannon, Jr., argued the cause for
respondent.
With him on the briefs was
William S.
Mailander.
*
JUSTICE SOUTER delivered the opinion of the Court.
In this case we decide whether a regulation of the Department of
Veterans Affairs, 38 CFR § 3.358(c)(3) (1993), requiring a claimant
for certain veterans' benefits to prove that disability resulted
from negligent treatment by the VA or an accident occurring during
treatment, is consistent with the controlling statute, 38 U. S. C.
§ 1151 (1988 ed., Supp. V). We hold that it is not.
I
Fred P. Gardner, a veteran of the Korean conflict, received
surgical treatment in a VA facility for a herniated disc unrelated
to his prior military service. Gardner then had pain and weakness
in his left calf, ankle, and foot, which he alleged was the result
of the surgery. He claimed disability benefits under § 1151,1 which
provides that the VA will compensate for "an injury, or an
aggravation of an injury," that occurs "as the result of
hospitalization, medical or surgical treatment, or the pursuit of a
course of vocational rehabilitation" provided under any of the laws
administered by the VA, so long as the injury was "not the result
of such veteran's own willful misconduct .... " The VA and the
Board
*Briefs of
amici curiae urging affirmance were filed for
the State of Texas by
Dan Morales, Attorney General, and
Jorge Vega, First Assistant Attorney General; for the
National Veterans Legal Services Project by
Ronald S.
Flagg and
Gershon M. Ratner; and for the Paralyzed
Veterans of America et al. by
Robert L. Nelson, Lawrence B.
Hagel, and
Irving R. M. Panzer.
1 Section 1151 is invoked typically to provide benefits to
veterans for nonservice related disabilities, although it is not so
limited by its terms. See Pet. for Cert. 6, n. 3. The statute's
history begins in 1924 when Congress enacted § 213 of the World War
Veterans' Act, 1924, ch. 320, 43 Stat. 623. Section 213 was
repealed in 1933, as part of the Economy Act of 1933, ch. 3, Tit.
I, § 17,48 Stat. 11-12, and reenacted in nearly the same form in
1934, Act of Mar. 28, 1934, ch. 102, Tit. III, § 31, 48 Stat.
526.
117
of Veterans' Appeals denied Gardner's claim for benefits, on the
ground that § 1151, as interpreted by 38 CFR § 3.358(c)(3) (1993),
only covers an injury if it "proximately resulted [from]
carelessness, negligence, lack of proper skill, error in judgment,
or similar instances of indicated fault" on the part of the VA, or
from the occurrence during treatment or rehabilitation of an
"accident," defined as an "unforeseen, untoward" event. The Court
of Veterans Appeals reversed, holding that § 1151 neither imposes
nor authorizes adoption of the fault-or-accident requirement set
out in § 3.358(c)(3),
Gardner v.
Derwinski, 1 Vet.
App. 584 (1991), and the Court of Appeals for the Federal Circuit
affirmed,
5 F.3d
1456 (1993). We granted certiorari, 511 U. S. 1017, and now
affirm.
II
Despite the absence from the statutory language of so much as a
word about fault2 on the part of the VA, the Government proposes
two interpretations in attempting to reveal a fault requirement
implicit in the text of § 1151, the first being that fault inheres
in the concept of compensable "injury." We think that no such
inference can be drawn in this instance, however. Even though
"injury" can of course carry a fault connotation, see Webster's New
International Dictionary 1280 (2d ed. 1957) (an "actionable
wrong"), it just as certainly need not do so, see
ibid.
("[d]amage or hurt done to or suffered by a person or thing"). The
most, then, that the Government could claim on the basis of this
term is the existence of an ambiguity to be resolved in favor of a
fault requirement (assuming that such a resolution would be
possi-
2 "Fault" is shorthand for fault-or-accident, the test imposed
by the regulation. Section 3.358(c)(3) leaves the additional burden
imposed by the "accident" requirement unclear, defining the term to
mean simply an "unforeseen, untoward" event. Although the
appropriate scope of the "accident" requirement is not before us,
on one plausible reading of the regulation some burden additional
to the statutory obligation would be imposed as an alternative to
fault.
118
ble after applying the rule that interpretive doubt is to be
resolved in the veteran's favor, see
King v.
St.
Vincent's Hospital, 502 U. S. 215, 220-221,
n. 9 (1991)). But the Government cannot plausibly make even this
claim here. Ambiguity is a creature not of definitional
possibilities but of statutory context, see
id., at 221
("[T]he meaning of statutory language, plain or not, depends on
context"), and this context negates a fault reading. Section 1151
provides compensability not only for an "injury," but for an
"aggravation of an injury" as well. "Injury" as used in this latter
phrase refers to a condition prior to the treatment in question,
and hence cannot carry with it any suggestion of fault attributable
to the VA in causing it. Since there is a presumption that a given
term is used to mean the same thing throughout a statute,
Atlantic Cleaners &
Dyers, Inc. v.
United
States, 286 U. S.
427, 433 (1932), a presumption surely at its most vigorous when
a term is repeated within a given sentence, it is virtually
impossible to read "injury" as laden with fault in the sentence
quoted.
Textual cross-reference confirms this conclusion. "Injury" is
employed elsewhere in the veterans' benefits statutes as an
instance of the neutral term "disability," appearing within a
series whose other terms exemplify debility free from any fault
connotation. See 38 U. S. C. § 1701(1) (1988 ed., Supp. V) ("The
term 'disability' means a disease, injury, or other physical or
mental defect"). The serial treatment thus indicates that the same
fault-free sense should be attributed to the term "injury" itself.
Jarecki v. G.
D. Searle &
Co., 367 U. S. 303, 307 (1961)
("[A] word is known by the company it keeps"). Moreover, in
analogous statutes dealing with service-connected injuries the term
"injury" is again used without any suggestion of fault, as the
administrative regulation applicable to these statutes confirms by
its failure to impose any fault requirement. Compare 38 U. S. C. §
1110 (1988 ed., Supp. V) ("disability resulting from personal
injury suffered or disease contracted in line of duty,
119
or for aggravation of a preexisting injury suffered or disease
contracted in line of duty, ... during a period of war," is
compensable) and 38 U. S. C. § 1131 (1988 ed., Supp. V)
("disability resulting from personal injury suffered or disease
contracted in line of duty, or for aggravation of a preexisting
injury suffered or disease contracted in line of duty, ... during
other than a period of war," is compensable) with 38 CFR § 3.310(a)
(1993) ("Disability which is proximately due to or the result of a
service-connected disease or injury shall be service connected.
When service connection is thus established for a secondary
condition, the secondary condition shall be considered a part of
the original condition").
In a second attempt to impose a VA-fault requirement, the
Government suggests that the "as a result of" language of § 1151
signifies a proximate cause requirement that incorporates a fault
test. Once again, we find the suggestion implausible. This language
is naturally read simply to impose the requirement of a causal
connection between the "injury" or "aggravation of an injury" and
"hospitalization, medical or surgical treatment, or the pursuit of
a course of vocational rehabilitation." Assuming that the
connection is limited to proximate causation so as to narrow the
class of compensable cases, that narrowing occurs by eliminating
remote consequences, not by requiring a demonstration of fault.3
See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts § 42 (5th ed. 1984). The
eccentricity of reading a fault requirement into the "result
3We do not, of course, intend to cast any doubt on the
regulations insofar as they exclude coverage for incidents of a
disease's or injury's natural progression, occurring after the date
of treatment. See 38 CFR § 3.358(b)(2) (1993). VA action is not the
cause of the disability in these situations. Nor do we intend to
exclude application of the doctrine
volenti non fit
injuria. See generally M. Bigelow, Law of Torts 39-43 (8th ed.
1907). It would be unreasonable, for example, to believe that
Congress intended to compensate veterans for the necessary
consequences of treatment to which they consented (i.
e.,
compensating a veteran who consents to the amputation of a
gangrenous limb for the loss of the limb).
120
of" language is underscored by the incongruity of applying it to
the fourth category for which compensation is available under §
1151, cases of injury resulting from a veteran's "pursuit of
vocational rehabilitation." If Congress had meant to require a
showing of VA fault, it would have been odd to refer to "the
pursuit [by the veteran] of vocational rehabilitation" rather than
to "the provision [by the VA] of vocational rehabilitation."
The poor fit of this language with any implicit requirement of
VA fault is made all the more obvious by the statute's express
treatment of a claimant's fault. The same sentence of § 1151 that
contains the terms "injury" and "as a result of" restricts
compensation to those whose additional disability was not the
result of their "own willful misconduct." This reference to
claimant's fault in a statute keeping silent about any fault on the
V Ns part invokes the rule that "[w]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion."
Russello v.
United States,
464 U. S. 16, 23
(1983) (internal quotation marks omitted). Without some mention of
the VNs fault, it would be unreasonable to read the text of § 1151
as imposing a burden of demonstrating it upon seeking compensation
for a further disability.
In sum, the text and reasonable inferences from it give a clear
answer against the Government, and that, as we have said, is "'the
end of the matter.'"
Good Samaritan Hospital v.
Shalala, 508
U. S. 402, 409 (1993) (quoting
Chevron U. S.
A.
Inc. v.
Natural Resources Defense Council, Inc., 467 U.
S. 837, 842 (1984)). Thus this clear textually grounded conclusion
in Gardner's favor is fatal to the remaining principal arguments
advanced against it.
The Government contends that Congress ratified the V Ns practice
of requiring a showing of fault when it reenacted the predecessor
of § 1151 in 1934, or, alternatively, that Con-
121
gress's legislative silence as to the VNs regulatory practice
over the last 60 years serves as an implicit endorsement of its
fault-based policy. There is an obvious trump to the reenactment
argument, however, in the rule that "[w]here the law is plain,
subsequent reenactment does not constitute an adoption of a
previous administrative construction."
Demarest v.
Manspeaker, 498 U. S. 184, 190
(1991). See also
Massachusetts Trustees of Eastern Gas &
Fuel Associates v.
United States, 377 U. S. 235, 241-242
(1964) (congressional reenactment has no interpretive effect where
regulations clearly contradict requirements of statute). But even
without this sensible rule, the reenactment would not carry the
day. Setting aside the disputed question whether the VA used a
fault rule in 1934,4 the record of congressional discussion
preceding reenactment makes no reference to the VA regulation, and
there is no other evidence to suggest that Congress was even aware
of the VNs interpretive position. "In such circumstances we
consider the ... re-enactment to be without significance."
United States v.
Calamaro, 354 U. S. 351, 359
(1957).
Congress's post-1934 legislative silence on the VNs fault
approach to § 1151 is likewise unavailing to the Government. As we
have recently made clear, congressional silence "'lacks persuasive
significance,'"
Central Bank of Denver, N.
A. v.
First Interstate Bank of Denver, N.
A., 511 U. S. 164, 187 (1994)
(quoting
Pension Benefit Guaranty Corporation v.
LTV
Corp., 496 U. S.
633, 650 (1990)), particularly where administrative regulations
are inconsistent with the controlling statute, see
Patterson
v.
McLean Credit Union, 491 U. S. 164, 175, n. 1
(1989) ("Congressional inaction cannot amend a duly enacted
statute"). See also
Zuber v.
Allen, 396 U. S. 168, 185-186,
n. 21 (1969) ("The verdict of quiescent years cannot be invoked to
baptize a statutory gloss that is
4 At the time of the 1934 reenactment, the regulation in effect
precluded compensation for the "'usual after[ - ]results of
approved medical care and treatment properly administered.''' See
Brief for Respondent 31.
122
otherwise impermissible .... Congressional inaction frequently
betokens unawareness, preoccupation, or paralysis").
Finally, we dispose of the Government's argument that the VNs
regulatory interpretation of § 1151 deserves judicial deference due
to its undisturbed endurance for 60 years. A regulation's age is no
antidote to clear inconsistency with a statute, and the fact,
again, that § 3.358(c)(3) flies against the plain language of the
statutory text exempts courts from any obligation to defer to it.
Dole v.
Steelworkers, 494 U. S. 26, 42-43
(1990);
Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., supra, at 842-843. But even if this were
a close case, where consistent application and age can enhance the
force of administrative interpretation, see
Zenith Radio
Corp. v.
United States, 437 U. S. 443, 450
(1978), the Government's position would suffer from the further
factual embarrassment that Congress established no judicial review
for VA decisions until 1988, only then removing the VA from what
one congressional Report spoke of as the agency's "splendid
isolation." H. R. Rep. No. 100-963, pt. 1, p. 10 (1988). As the
Court of Appeals for the Federal Circuit aptly stated: "Many VA
regulations have aged nicely simply because Congress took so long
to provide for judicial review. The length of such regulations'
unscrutinized and unscrutinizable existence" could not alone,
therefore, enhance any claim to deference. 5 F. 3d, at
1463-1464.
III
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
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