United States Court of Appeals for the Federal Circuit ______________________

RANDOLPH S. GURLEY, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2021-1490 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 19-1880, Judge Joseph L. Falvey, Jr. ______________________

Decided: January 20, 2022 ______________________

KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

JOSHUA E. KURLAND, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY, JR.; Y. KEN LEE, BRYAN THOMPSON, Office of Gen- eral Counsel, United States Department of Veterans Af- fairs, Washington, DC. ______________________ Case: 21-1490 Document: 32 Page: 2 Filed: 01/20/2022

2 GURLEY v. MCDONOUGH

Before TARANTO, BRYSON, and STOLL, Circuit Judges. TARANTO, Circuit Judge. After beginning to receive veterans’ disability compen- sation benefits, Randolph S. Gurley was incarcerated for a felony for a short period. Not knowing of the incarceration until it ended, the Department of Veterans Affairs (VA) paid Mr. Gurley’s full benefits during the period, even though 38 U.S.C. § 5313 prescribes a substantial reduction of payments to the veteran for certain incarceration peri- ods. When VA learned of Mr. Gurley’s incarceration after his release, it retroactively reduced the benefits for the now-ended incarceration period, and to recoup the overpay- ment it had made, VA withheld payment of continuing ben- efits for a time, as authorized by 38 U.S.C. § 5314. Mr. Gurley unsuccessfully appealed to the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims (Veterans Court), contending that the statute does not per- mit a retroactive reduction for a period of incarceration that has already ended. Mr. Gurley renews his argument on appeal to us, but we agree with the Veterans Court that 38 U.S.C. § 5313 authorizes VA to make a post-incarcera- tion decision to reduce benefits retroactively for the speci- fied period of incarceration. We therefore affirm. I Mr. Gurley served in the United States Army between 1972 and 1974 (a period of war) and the Army National Guard between 1975 and 1982. As of 1997, VA was paying him service-connected-disability compensation benefits, pursuant to 38 C.F.R. § 4.30, at the 100 percent disability level based on individual unemployability. In 2011, Mr. Gurley was convicted of a felony, and he was incarcerated for nearly six months, from September 9, 2011 to March 1, 2012. Case: 21-1490 Document: 32 Page: 3 Filed: 01/20/2022

GURLEY v. MCDONOUGH 3

By statute, when a veteran is incarcerated for a felony conviction, the veteran “shall not be paid” the full amount of awarded compensation benefits “for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends.” 38 U.S.C. § 5313(a)(1). In Mr. Gurley’s situation, the payment had to be reduced from the 100% disability level to the 10% disability level, under 38 U.S.C. § 5313(a)(1)(A) and § 1114(a). Mr. Gurley, however, received his full benefits during the entirety of his incarceration, because VA did not learn of his incarceration until six days after his release, when VA compared its rec- ords with those of the Social Security Administration. Af- ter confirming Mr. G