Lamour v. Peake, No. 2007-7278.

• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
• Writing for the Court: Newman
• Citation: 544 F.3d 1317
• Parties: Adelina C. LAMOUR, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
• Docket Number: No. 2007-7278.
• Decision Date: 10 October 2008

544 F.3d 1317 Adelina C. LAMOUR, Claimant-Appellant,
v.
James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee. No. 2007-7278. United States Court of Appeals, Federal Circuit. October 10, 2008.

[544 F.3d 1319]

Adelina C. Lamour, of Olongapo City, Philippines, pro se.

David M. Hibey, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director and Donald E. Kinner, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel and Jane C. Kang, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, GAJARSA, and DYK, Circuit Judges.

NEWMAN, Circuit Judge.

Adelina C. Lamour, pro se, appeals the judgment of the Court of Appeals for Veterans Claims (the "Veterans Court") denying her request to reopen her claim for survivor benefits as the spouse of a veteran. Lamour v. Nicholson, No. 05-1108, 2007 WL 1586131 (Vet.App. May 23, 2007). The Veterans Court sustained the ruling of the Board of Veterans' Appeals, declining to reopen her claim on the ground that Mrs. Lamour had not established that she had been married to Mr. Lamour for at least one year. We conclude that the court erred in that it did not consider the VA's interpretation of the "deemed valid" marriage statute and regulation as established in the VA general counsel's precedential opinion, as applied to Mrs. Lamour's situation.

BACKGROUND

Frank L. Lamour Jr. served on active duty in the United States Army from August 1943 to January 1946. He lived in the Republic of the Philippines for some years — the record before us does not state his full history — and died in the Philippines on February 10, 1991. Nine days before he died, Mr. Lamour and the appellant were married by formal ceremony. Mrs. Lamour duly filed a claim for dependency and indemnity compensation as the surviving spouse. The VA regional office in Manila denied her claim because she and Mr. Lamour had not been married for at least one year, as is required by statute and regulation:

38 U.S.C. § 1304. No dependency and indemnity compensation shall be paid to the surviving spouse of a veteran dying after December 31, 1956, unless such surviving spouse was married to such veteran—

(1) before the expiration of fifteen years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; or

(2) for one year or more; or

(3) for any period of time if a child was born of the marriage, or was born to them before the marriage.

See also 38 C.F.R. § 3.54 (listing marriage requirements for all death benefits).¹ Relying solely on the "one year or more" provision, Mrs. Lamour appealed to the Board of Veterans Appeals, averring that she and Mr. Lamour had lived together as husband and wife for many years before their formal marriage ceremony. The Board denied her claim in August 1991, stating that they had not been married for one year or more because "common law" marriage is not recognized in the Philippines. 38 U.S.C. § 103(c) provides that validity of a marriage is determined according

544 F.3d 1320

to the law of the place where the couple resided at the time of the marriage or when the right to the benefits accrued. See also 38 C.F.R. § 3.1(j).

Mrs. Lamour requested that her claim be reopened. She submitted a statement that she had no knowledge of the law governing common law marriage in the Philippines, and filed an affidavit that she and Mr. Lamour had lived together as husband and wife for five years before their formal ceremony. The regional office ruled that this evidence could not establish a valid marriage. Mrs. Lamour then submitted additional evidence, including a copy of a bank check showing a joint account, a letter from a credit union, and an affidavit made by Mr. Lamour three years before he died stating that he was financially supporting the appellant. The regional office, affirmed by the Board, held that this evidence was not "material" under 38 U.S.C. § 5108 because it "does not relate to an unestablished fact necessary to substantiate the claim," the necessary fact being a valid marriage under Philippine law.

The Veterans Court affirmed, stating that it was undisputed that Mr. and Mrs. Lamour were not married for one year or more prior to his death and that they had no child. The Veterans Court also referred to the statute, 38 U.S.C. § 103(a), and regulation, 38 C.F.R. § 3.52, concerning when a marriage would be "deemed valid" for benefit eligibility purposes despite a "legal impediment," and concluded that "none of the newly submitted evidence relates to whether the appellant's marriage could be deemed valid." Mrs. Lamour appeals to this court.

DISCUSSION

Jurisdiction

The Secretary argues that this appeal is not within our appellate jurisdiction, stating that this case is simply the application of established law to fact. Mrs. Lamour argues that this appeal involves the interpretation of statutory and regulatory provisions, particularly the "deemed valid" marriage provisions of 38 U.S.C § 103(a) and 38 C.F.R. § 3.52 and the evidentiary regulation 38 C.F.R. § 3.205(c).

In accordance with 38 U.S.C. § 7292(a), this court has jurisdiction to review a "decision [of the Veterans Court] with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision." The italicized words were added to the statute by the Veterans Benefits Act of 2002, Pub.L. No. 107-330, § 402(a), 116 Stat. 2820, 2832, in order to ameliorate previous appellate constraints as confirmed in Forshey v. Principi, 284 F.3d 1335, 1351 (Fed.Cir. 2002) (en banc). The 2002 statutory amendment enlarged this court's appellate authority, to include what we have described as a form of "case" jurisdiction, covering any decision by the Veterans Court on a rule of law "even though the issue underlying the stated position was not `relied on' by the...