Carroll v. McDonald, 2014–7008.
| Decision Date | 24 September 2014 |
| Docket Number | No. 2014–7008.,2014–7008. |
| Citation | 767 F.3d 1368 |
| Parties | Norma D. CARROLL, Claimant–Appellant, v. Robert A. McDONALD, Secretary of Veterans Affairs, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Barbara J. Cook, of Cincinnati, Ohio, argued for claimant-appellant. On the brief was Zachary M. Stolz, Chisholm Chisholm & Kilpatrick, Ltd., of Providence, Rhode Island. Of counsel were Robert V. Chisholm, Matthew J. Ilacqua, and Nicholas L. Phinney.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and Martin F. Hockey, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before PROST, Chief Judge, CLEVENGER, and CHEN, Circuit Judges.
Norma D. Carroll appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a denial by the Board of Veterans' Appeals (“Board”) of Mrs. Carroll's claim to Dependency and Indemnity Compensation benefits. Carroll v. Shinseki, No. 12–2585, 2013 WL 3751775 (Vet.App. July 18, 2013) (unpublished). For the reasons set forth below, we affirm.
Mrs. Carroll married veteran Glenn Dodson in 1949. The couple remained married until Mr. Dodson's death in 1992 from cardiac arrhythmia
due to amyotrophic lateral sclerosis (“ALS”). Mrs. Carroll remarried two years later at the age of 64.
In the two years following Mr. Dodson's death, Mrs. Carroll did not seek Dependency and Indemnity Compensation (“DIC”) benefits, which are available to the “surviving spouse” of a veteran whose death resulted from a service-related injury or disease. See 38 U.S.C. §§ 1310 –1318. Mrs. Carroll's eligibility for DIC benefits terminated upon her remarriage in 1994. At the time, an individual who remarried could not be considered a “surviving spouse” under the statute. See 38 U.S.C. § 103 (1986).
Nearly ten years after Mrs. Carroll's remarriage, Congress enacted the Veterans Benefits Act of 2003, Pub.L. No. 108–183, which amended Title 38 to authorize DIC benefits for surviving spouses who remarry after attaining age 57. Section 101(a) of the Act, which was codified at 38 U.S.C. § 103(d)(2)(B), provided that “[t]he remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of [certain benefits, including DIC] to such person as the surviving spouse of the veteran.” The House Committee Report accompanying the Act expressed concern that the existing statute discouraged older spouses from remarrying; the amendment sought to remove that disincentive. See H.R.Rep. No. 108–211, at 12 (2003), 2004 U.S.C.C.A.N. 2312.
The Veterans Benefits Act of 2003 also provided new DIC eligibility for surviving spouses who remarried after the age of 57 but before the date of enactment of the Act. Section 101(e) of the Act, which is uncodified, reads as follows:
APPLICATION FOR BENEFITS.—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 (a), and whose remarriage was before the date of 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 enactment of this Act.
Mrs. Carroll, who was over the age of 57 when she remarried in 1994, did not submit an application for DIC benefits during the one-year window created by § 101(e), which closed on December 16, 2004. During that time, the cause of Mrs. Carroll's former husband's death—ALS—was recognized as a condition that could be service-related, though not presumptively so. See 38 C.F.R. § 4.124a (2004). That changed in 2008, when the Department of Veterans Affairs (“VA”) promulgated a regulation that established a presumption of service connection for ALS for any veteran who developed the disease at any time after separation from service. See Presumption of Service Connection for Amyotrophic Lateral Sclerosis, 73 Fed.Reg. 54,691 (Dep't of Vet. Aff. Sept. 23, 2008).
In 2009, Mrs. Carroll filed an application for DIC benefits as Mr. Dodson's widow. The regional office of the VA denied Mrs. Carroll's claim because she submitted her application nearly five years after the close of the one-year filing window for previously remarried spouses created by § 101(e) of the 2003 Act. Mrs. Carroll appealed to the Board, which denied her claim for the same reason.
Mrs. Carroll then appealed to the Veterans Court, contending that § 101(e) applied only to individuals “who would have been eligible for DIC in 2003 but for the fact that they remarried,” and that the subsection was thus inapplicable to her because she was not “eligible for benefits at that time because her husband's death was not then deemed service-connected.” J.A. 3. The Veterans Court found that Mrs. Carroll's argument conflated the concepts of entitlement and eligibility. Although Mrs. Carroll was not necessarily entitled to DIC benefits in 2003, the court explained, she was eligible to be considered for those benefits on the basis of her prior marriage to Mr. Dodson. The fact that a service connection for Mr. Dodson's ALS was not presumptively established did not mean that Mrs. Carroll was ineligible for DIC benefits or otherwise outside the ambit of § 101(e). Accordingly, the Veterans Court affirmed the Board's decision.
Mrs. Carroll timely appeals. We have jurisdiction under 38 U.S.C. § 7292.
This appeal requires us to interpret a statute. We may “review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ... and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” § 7292(c). We review statutory interpretations of the Veterans Court without deference. Chandler v. Shinseki, 676 F.3d 1045, 1047 (Fed.Cir.2012).
We interpreted the 2003 Act once before, in Frederick v. Shinseki, 684 F.3d 1263 (Fed.Cir.2012). There, we considered the effect of Pub.L. No. 108–183 § 101(e) on a surviving spouse who filed for DIC benefits after the death of her veteran husband in 1970, lost those benefits sixteen years later upon remarriage after the age of 57, and then sought renewal of the benefits in 2007—approximately three years after the closing of the one-year filing window. In deciding that Mrs. Frederick was covered by § 101(e) and thus had filed too late to receive DIC benefits, we explained that the 2003 Act created “a class of surviving spouses who remarry after the age of 57 and who thus become eligible for DIC benefits as a result of the Act.” Frederick, 684 F.3d at 1266. That class, we elaborated, includes two groups:
(a) those who previously applied for and received DIC benefits, and whose remarriage before the effective date of the Act destroyed their eligibility for DIC benefits (such as Mrs. Frederick), and (b) those who for whatever reason never applied for DIC benefits upon the death of their veteran spouse, but who remarried before the effective date of the Act, and thereby lost eligibility for DIC benefits.
Id. In Frederick, we found that the surviving spouse fell into the first group; here, the Veterans Court essentially determined that Mrs. Carroll falls into the second group and, similar to Mrs. Frederick, is therefore ineligible for DIC benefits because she did not submit her application for benefits within the one-year filing window of § 101(e).
On appeal, Mrs. Carroll argues that she was not “eligible for benefits” until 2008, when the VA relaxed the evidentiary burden for establishing a service connection for ALS, the disease that caused the death of her husband. Prior to that point, she contends, “the basis of her DIC eligibility did not exist in law.” Appellant's Br. 7. Without the presumption of service connection for ALS in place, it would have been difficult for her to establish the service connection necessary to obtain DIC benefits. As Mrs. Carroll sees it, our discussion in Frederick does not apply to her because she never had any eligibility to lose: she was not “eligible for benefits” under § 101(e) either before or during its one-year filing window.
The Secretary, by contrast, maintains that the phrase “eligible for benefits” in § 101(e) refers to “the class of persons who would be recognized as surviving spouses by virtue of subsection (a) but for...
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