Gipson Fisher v. Wilkie

• Decision Date: 29 June 2020
• Docket Number: 19-3004
• Parties: Maggie L. Gipson Fisher, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

Maggie L. Gipson Fisher, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 19-3004

United States Court of Appeals For Veterans Claims

June 29, 2020

Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Before GREENBERG, Judge.

MEMORANDUM DECISION

GREENBERG, Judge:

Maggie L. Gipson, widow of veteran Donald H. Fisher, pro se appeals a February 1, 2019, Board of Veterans' Appeals (Board) decision that denied recognition as the veteran's surviving spouse for purposes of entitlement to dependency and indemnity compensation (DIC) benefits, survivor pension benefits, and accrued benefits. Record (R.) at 3-9. The appellant argues that she believed that because she and the veteran were together for 30 years, lived together at the time of the veteran's death, and carried themselves out as married, that she would be eligible for all benefits as a surviving spouse. Appellant's Informal Brief at 2-3. For the following reasons, the Court will set aside that part of the February 2019 Board decision denying recognition as the appellant's surviving spouse for purposes of entitlement to DIC benefits and survivor pension benefits and remand the matters for readjudication. The remainder of the decision on appeal will be affirmed.

I.

The Veterans Administration was established in 1930 when Congress consolidated the Bureau of Pensions, the National Home for Disabled Volunteer Soldiers, and the U.S. Veterans' Bureau into one agency. Act of July 3, 1930, ch. 863, 46 Stat. 1016. This Court was created with the enactment of the Veterans' Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat. 4105 4122 (1988). Before the VJRA, for nearly 60 years VA rules regulations, and decisions lived in "splendid isolation," generally unconstrained by judicial review. See Brown v. Gardner, 513 U.S. 115, 122, (1994) (Souter, J.).

Yet, the creation of a special court solely for veterans is consistent with congressional intent as old as the Republic. Congress first sought judicial assistance in affording veterans relief when it adopted the Invalid Pensions Act of 1792, which provided "for the settlement of the claims of widows and orphans . . . and to regulate the claims to invalid pensions," for those injured during the Revolutionary War. Act of Mar. 23, 1792, ch. 11, 1 U.S. Stat. 243 (1792) (repealed in part and amended by Act of Feb. 28, 1793, ch. 17, 1 Stat. 324 (1793)). The act, though magnanimous, curtailed the power of the judiciary, by providing the Secretary of War the ability to withhold favorable determinations to claimants by circuit courts if the Secretary believed that the circuit court had erred in favor of the soldier based on "suspected imposition or mistake." See id.

Chief Justice John Jay^[1] wrote a letter^[2] to President George Washington on behalf of the Circuit Court for the District of New York^[3] acknowledging that "the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress." See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L.Ed. 436 (1792). Jay also noted that "judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature." Id.

This desire to effect congressional intent favorable to veterans has echoed throughout the Supreme Court's decisions on matters that emanated from our Court. See Shinseki v. Sanders, 556 U.S. 396, 416, 129 S.Ct. 1696, 1709 (2009) (Souter, J., dissenting) ("Given Congress's understandable decision to place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions"); see also Henderson v. Shinseki, 562 U.S. 428, 440, 131 S.Ct. 1197, 1205 (2011) (declaring that congressional solicitude for veterans is plainly reflected in "the singular characteristics of the review scheme that Congress created for the adjudication of veterans' benefits claims," and emphasizing that the provision "was enacted as part of the VJRA [because] that legislation was decidedly favorable to the veteran").

II.

Justice Alito^[4] observed in Henderson v. Shinseki that our Court's scope of review is "similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706." 562 U.S. at 432 n.2 (2011); see 38 U.S.C. § 7261. "The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C. § 7254. The statutory command that a single judge^[5] may issue a binding decision is "unambiguous, unequivocal, and unlimited," see Conroy v. Aniskoff, 507 U.S. 511, 514 (1993). The Court's practice of treating panel decisions as "precedential" is unnecessary, particularly since the Court's adoption of class action litigation. See Wolfe v. Wilkie, 32 Vet.App. 1 (2019). We cite decisions from our Court merely for their guidance and persuasive value.

III.

The veteran served on active duty in the U.S. Air Force from July 1952 to September 1957, January 1959 to August 1960, and November 1961 to February 1964, as an air policeman and a training specialist. R. at 439-43, 708 (DD Form 214).

IV.

The veteran died on December 21, 2015. R. at 721. The appellant filed a claim for benefits in February 2016. R. at 722-27.

V.

In February 2019, the Board denied the appellant's recognition as the veteran's surviving spouse for purposes of entitlement to DIC benefits, survivor pension benefits, and accrued benefits. Record (R.) at 3-9. The Board found that the appellant and veteran were never legally married and that the appellant instead sought benefits based on a common-law marriage. R at 5-6. The Board then found that the appellant provided evidence that she and the veteran lived together in California and also Nevada, where the appellant died, as well as testimony that she and the veteran lived in Texas and Georgia for a short time. R. at 6. The Board then stated that California, Georgia, and Nevada explicitly do not recognize common-law marriage. Id. The Board further found that while Texas allows for common-law marriage, the appellant and veteran did not meet the standards for proving the existence of a common-law marriage, as the appellant failed to provide proof of residency; there is no evidence that they held themselves out to be married in Texas; she never legally took his last name; and the veteran's death certificate does not mention the appellant at all. R. at 6-7. The Board finally determined that there was no evidence that the veteran had funds owed to him at the time of death, nor were there any claims pending. R. at 7-8.

VI.

"When any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran's surviving spouse, children, and parents." 38 U.S.C. §1310.

"The term surviving spouse means . . . the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of the marriage to the date of the veteran's death . . . and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out to be the spouse of such other person." 38 U.S.C. § 101(3); 38 C.F.R. 3.50(b) (2019).

A marriage must be valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j).

A common-law marriage can be considered a deemed valid marriage if

in jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statement of one or both of the parties to the marriage, if living, [are provided] setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationships which existed between the parties to the alleged marriage including the periods of cohabitation, places of residence, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived.

38 C.F.R. § 3.205(a)(6) (2019).

When an attempted marriage of a claimant to a veteran was invalid by reason of a legal impediment, the marriage can be deemed valid if (a) the marriage occurred more than one year before the veteran died; (b) the claimant entered into the marriage without knowledge of the impediment; (c) the claimant cohabitated with the veteran continuously from the date of the marriage to the date of his or her death as outlined in 38 C.F.R. § 3.53; and (d) no claim has been filed by a legal surviving spouse. 38 U.S.C. §103(a); 38 C.F.R. § 3.52 (2019).

A requirement of a formal marriage ceremony by a jurisdiction that does not recognize common law marriage constitutes a legal impediment to that marriage for purposes of 38 U.S.C § 103(a) and 38 C.F.R. § 3.52. Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008) (citing VA Op. Gen. Coun. Prec. 58-91 (June 17, 1991)). The determination as to a claimant's knowledge of a legal impediment "is viewed in terms of what the appellant's state of mind was at the time the invalid marriage was contracted." Lamour, id. at 1323. When a surviving spouse has submitted proof of marriage in accordance with...