Alpough v. Nicholson

Decision Date18 June 2007
Docket NumberNo. 2006-7304.,2006-7304.
Citation490 F.3d 1352
PartiesLouise ALPOUGH, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

Henry C. Su, Howrey LLP, of East Palo Alto, California, argued for claimant-appellant. Of counsel on the brief was Michael P. Horan, Paralyzed Veterans of America, of Washington, DC.

Claudia Burke, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, and Brian M. Simkin, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington DC.

Before MICHEL, Chief Judge, DYK, Circuit Judge, and GARBIS, Senior District Judge.*

DYK, Circuit Judge.

Appellant Louise Alpough ("Louise") appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court"). The Veterans Court affirmed a decision of the Board of Veterans' Appeals ("Board") denying Louise's claim for Department of Veterans Affairs ("VA") surviving spouse benefits. We conclude that the Veterans Court erred in holding that Louise's mutually agreed separation from her husband before his death automatically disqualified her from recognition as a surviving spouse. We vacate the Veterans Court's decision and remand for consideration under the correct legal standard.

BACKGROUND

Louise's husband, Joseph L. Alpough ("Joseph"), served on active duty in the United States military from 1954-1956. He married Louise on July 23, 1960, and they had two children. In 1970, the Alpoughs separated, and Joseph moved in with his mother in Port Arthur, Texas while Louise and the children lived in Houston. In October 1972, Joseph filed a claim for service connection for stomach problems, including stomach cancer. In doing so, he indicated that he had been separated from Louise since 1970 because he "could not get along" with her. J.A. at 36. He died in December 1972 from stomach cancer. In February 1973, Louise filed an application for dependency and indemnity compensation ("DIC") benefits as a surviving spouse. Her application indicated that she had not lived with Joseph continuously from their marriage until his death and that they separated because they "[c]ould not get along as husband and wife." J.A. at 80. The VA regional office denied Louise's claim in September 1973, concluding that she was not "the legal widow of Mr. Joseph Alpough as they mutually agreed to live apart and there was no intention of their resuming their relationship as husband and wife." J.A. at 88.

Louise made repeated attempts to reopen her claim by submitting evidence she claimed was new and material. In a January 14, 2003, decision the Board concluded that new evidence submitted by Louise, which indicated that the separation was due to Joseph's illness rather than incompatibility, was sufficient to reopen Louise's claim to DIC benefits. However, the Board concluded that the separation was not caused by Joseph's illness, finding that the new evidence that the separation was caused by illness was not as probative as contemporaneous statements that the separation was due to mutual incompatibility. It therefore held that Louise "was not without fault in the separation" and denied her claim. Appeal of Alpough, No. 01-00 166A, slip op. at 2, 9 (B.V.A. Jan. 14, 2003) ("Board Decision").

On January 18, 2006, the Veterans Court affirmed the Board's decision, relying on its earlier decision in Gregory v. Brown, 5 Vet.App. 108 (1993).1 In doing so, the Veterans Court held that "[s]ince the appellant has explicitly conceded in her brief that the separation was by mutual consent without the fault of either party, she cannot prevail because the law and the regulation make an exception only for a separation caused by the veteran's misconduct." Alpough v. Nicholson, No. 03-761, slip op. at 4-5, 2006 WL 133505 (Vet.App. Jan. 18, 2006) ("Veterans Court Decision").

Louise timely appealed. We have jurisdiction pursuant to 38 U.S.C. § 7292(c).

DISCUSSION

At the outset, we must consider the government's contention that "Alpough has not raised any claims over which this Court may exercise its limited jurisdiction." Appellee's Br. at 7. We disagree. We have "jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section." 38 U.S.C. § 7292(c). Louise argues that the Veterans Court misinterpreted 38 U.S.C. § 101(3) and 38 C.F.R. § 3.53(b) by requiring her to prove "misconduct" on the part of her spouse in order to be accorded surviving spouse status. Louise's challenge to the Veterans Court's interpretation of the statute and its accompanying regulation are clearly within our jurisdiction. See Forshey v. Principi, 284 F.3d 1335, 1359 (Fed.Cir.2002) (en banc) (superseded on other grounds by Pub.L. No. 107-330, § 402(a), 116 Stat. 2820, 2832 (2002)) ("We hold that we have jurisdiction over . . . issues of interpretation if the Court of Appeals for Veterans Claims elaborated the meaning of a statute or regulation and the decision depended on that interpretation."); Morgan v. Principi, 327 F.3d 1357 (2003) (noting that the "amendment enacted by Congress [made] review of `a decision of the [Veterans] Court on a rule of law' a separate jurisdictional basis"); see also, e.g., Carpenter v. Nicholson, 452 F.3d 1379, 1382-83 (Fed. Cir.2006). The government's argument that we lack jurisdiction is meritless.

Under 38 U.S.C. § 101(3), a person is a "surviving spouse" entitled to DIC benefits if he or she: (1) is of the opposite sex of the veteran; (2) is the spouse of the veteran at the time of the veteran's death; (3) has lived with the veteran continuously from the date of marriage to the date of the veteran's death (the "continuous cohabitation" requirement); and (4) has not remarried or lived with another person and held himself or herself out publicly as the spouse of that person.2 However, the statute makes an exception to the "continuous cohabitation" requirement "where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse." Id. (emphasis added). The VA has interpreted this statutory provision and directly addressed separations by mutual agreement, stating:

If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken.

38 C.F.R. § 3.53(b) (emphases added).3

In holding here that Louise's "separation . . . by mutual consent without the fault of either party" prevented her from qualifying as a surviving spouse, the Veterans Court stated that "the law and the regulation make an exception [to the `continuous cohabitation' requirement] only for a separation caused by the veteran's misconduct." Veterans Court Decision, slip op. at 4-5 (emphasis added). This approach—requiring a showing of misconduct by the veteran—is contrary to both the statute and the regulation interpreting it. The statutory exception is not limited to "a separation which was due to the misconduct of . . . the veteran." 38 U.S.C. § 101(3). It also includes an exception for a separation "procured by" the veteran. Id.

While the statute is clear that "misconduct" by the veteran is not required, the statute is unclear whether a separation by mutual agreement is one "procured by" the veteran. Contrary to the government's suggestion, the dictionary definition of "procure" does not require unilateral as opposed to joint action. See Webster's Third New International Dictionary 1809 (2002) ("to cause to happen or be done: bring about: effect [e.g.,] procured temporary agreement>"). Since the statute itself is ambiguous, we defer to the VA's interpretation in its implementing regulations if that interpretation is reasonable. See Chevron, U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The express terms of the regulation provide that the continuity of cohabitation will not be considered broken if "the separation was by mutual consent and . . . the parties lived apart" for purposes of convenience or for certain other specified reasons or for "any other reason which did not show an intent on the part of the surviving spouse to desert the veteran." 38 C.F.R. § 3.53(b). In other words, the key is whether the reason for the separation "did not show an intent on the part of the surviving spouse to desert the veteran." Id. (emphasis added).

"Desertion" is not defined in the regulations. See 38 C.F.R. § 3.1. However, the term is well-defined in the common law in the family law context. The edition of Black's Law Dictionary in effect on the date of the regulation's adoption in 1961, see 26 Fed.Reg. 1567 (Feb. 24, 1961), defines "desertion" as the "unauthorized" abandonment of "a station or condition of public or social life" and explicitly states that "[i]n [m]atrimonial and [d]ivorce [l]aw," desertion "occur[s] without legal justification either in the consent or the wrongful conduct of the other party." Black's Law Dictionary 532-33 (4th ed.1951) (emphases added).4 In other words, generally a mutually agreed separation does not constitute desertion. Similarly, state supreme courts, at the time the regulatory language was added, clearly recognized that "[m]ere separation by mutual consent is not a desertion by either party." Arrington v. Arrington, 196 Va. 86, 82 S.E.2d 548, 551 (1954); see also, e.g., Martin v. Martin, 225 Ark. 677, 284 S.W.2d 647, 649 (1955);...

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