Lynch v. Wilkie

Decision Date23 October 2018
Docket Number16-0541
PartiesMarlesa D. Lynch, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. and Cynthia M. Martinez, Appellant,
CourtCourt of Appeals for Veteran Claims

Marlesa D. Lynch, Appellant, and Cynthia M. Martinez, Appellant,
v.
Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 16-0541

United States Court of Appeals For Veterans Claims

October 23, 2018


Argued August 21, 2018

On Appeal from the Board of Veterans' Appeals

Daniel G. Krasnegor, of Charlottesville, Virginia, with whom Erin E. Ralston, of Glen Allen, Virginia; and Krystle D. Waldron, of Richmond, Virginia, were on the brief, for the appellants.

Angela-Marie C. Green, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, all of Washington, D.C., were on the brief, for the appellee. [1]

Before SCHOELEN, ALLEN, and MEREDITH, Judges.

SCHOELEN, Judge.

The appellants, Marlesa D. Lynch and Cynthia M. Martinez, appeal through counsel two January 29, 2016, Board of Veterans' Appeals (Board) decisions that denied them entitlement to recognition as the children of deceased veteran David Philpot for eligibility for dependency and indemnity compensation (DIC) benefits. [2] Record (R.) at 2-18. On February 28, 2018, the Court issued a single-judge decision affirming the January 2016 Board decisions. See Lynch v. Shulkin, No. 16-0541, 2018 WL 1081410 (U.S. Vet. App. Feb. 28, 2018) (mem. dec.). On March 21, 2018, the appellants filed a motion for single-judge reconsideration or, in the alternative, panel review. This matter was submitted for panel consideration and oral argument was held. The Court will withdraw the February 28, 2018, memorandum decision and issue this decision in its stead. Because the record did not reasonably raise the theory that a pending claim for DIC was filed on behalf of the appellants while they were considered "children," the Court will affirm the Board's January 2016 decisions.

I. BACKGROUND

The appellants are sisters who allege that they are the natural children of veteran David Philpot.[3] See R. at 225, 254. Mr. Philpot was killed on February 28, 1969, while he was on active duty. See R. at 329, 332. At the time of his death, the appellants were minor children. See R. at 237, 242.

In March 1969, 1 month after the veteran's death, the Office of Servicemen's Group Life Insurance[4] (SGLI) contacted the veteran's parents to inform them that the veteran was insured under the SGLI program, but had not designated a beneficiary for his policy. R. at 49; see also R. at 47 (veteran's SGLI election form with no beneficiary designated). Because the veteran's parents did not identify any other beneficiaries, they were awarded his SGLI benefits, a lump sum of $10, 000. See R. at 293 (footnotes in DD Form 1300 identifying the veteran's father as "[a]dult next of kin" and "[b]eneficiary for gratuity pay in event there is no surviving wife or child").

In April 1969, 2 months after the veteran's death, VA received the veteran's parents' application for DIC on VA Form 21-535, APPLICATION FOR DEPENDENCY AND INDEMNITY COMPENSATION BY PARENT(S). R. at 340-42. In area 21, which asked about the veteran's surviving dependents, the veteran's parents checked the box indicating that the veteran had neither a widow nor any children under 18 years of age. R. at 340. They left blank area 22, which requested the names and address of any surviving children. Id. The following month, the veteran's parents' DIC claim was denied because their income exceeded the allowable threshold; they did not appeal that decision. R. at 44, 282.

In August 2010, the appellants filed claims seeking DIC. R. at 225-32 (Martinez claim), 254-61 (Lynch claim). The appellants conceded that the veteran's parents "did not notify the VA that the deceased veteran had two dependent children" in connection with either the parents' DIC application or their claim for SGLI benefits. R. at 184. Rather, the appellants asserted that the veteran's parents - their grandparents - fraudulently and intentionally failed to disclose that the veteran had children so that they could claim any available benefits for themselves. R. at 118, 120. In November 2015, the appellants testified before a Board member that the veteran's parents had the opportunity to inform VA that the veteran had dependent children but declined to do so, even though the appellants were living with the veteran's parents when the veteran's parents received SGLI benefits and filed the DIC claim. R. at 52-55.

In the decisions on appeal, the Board determined that the appellants first filed claims seeking DIC in 2010, when they no longer met the statutory and regulatory definitions of "children" for such purposes. R. at 5, 15. The Board found, therefore, that the appellants were not eligible claimants, and denied their claims as a matter of law. R. at 5-6, 15-16. The Board further found that, because the law was dispositive in these matters, any duty-to-assist errors would be harmless. R. at 4, 14.

II. THE PARTIES' ARGUMENTS

The appellants do not dispute that they first filed claims seeking DIC in 2010, by which time neither appellant met the statutory and regulatory definitions of "child" for VA purposes. See Appellants' Br. at 5 (stating that the appellants did not learn about the availability of DIC until they were adults); see also R. at 118 (Martinez VA Form 9), 120 (Lynch VA Form 9); 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57 (2018). Nonetheless, they argue that the Board prematurely determined that their claims must be denied as a matter of law without addressing pertinent and unresolved matters. See, e.g., Appellants' Br. at 14. Specifically, they assert that the record reasonably raised theories that the 1969 application filed by the veteran's parents was either an incomplete or defective claim, which has remained pending since 1969 because VA failed to notify the applicants of the evidence necessary to complete their application, see id. at 8-12; 38 C.F.R. § 3.109(a)(1) (1969), or an informal claim filed by the veteran's parents on behalf of the appellants, which has remained pending because VA never forwarded the appropriate official application form to the veteran's parents. See Appellants' Br. at 12-14; 38 C.F.R. § 3.155(a) (1969). They assert that, under these theories, their actual dates of claim could be April 1969, when they were still "children" as defined by 38 U.S.C. § 101(4)(A). Appellants' Br. at 11-14. Because they could be entitled to past due DIC benefits for the period when they were eligible "children," they contend, the Board's statement of reasons or bases for its decision was inadequate and the Board's premature denial was prejudicial error. Id. at 6-8, 14. They further assert that, regardless of whether the record reasonably raised these theories of entitlement, VA's duty to assist nonetheless requires that the matter be remanded for additional development to ensure a complete record. Id. at 15-17.

The Secretary agrees that, if an unadjudicated claim was filed on the appellants' behalf in April 1969, i.e., within 1 year of the veteran's death, the appellants would, today, be eligible claimants. See Secretary's Suppl. Br. at 2-3. However, he disputes the appellants' contention that the record below reasonably raised theories under which the April 1969 claim could or should be construed as a pending claim filed on the appellants' behalf, and contends that the Board was not required to discuss those theories. Secretary's Br. at 9. Regarding the appellants' assertion that VA failed to satisfy its duty to assist, the Secretary argues that, "any such error is not prejudicial, because it would result in no additional benefit flowing to the [a]ppellants in this case." Id. at 19 (citing 38 U.S.C. § 7261(b)(2)).

III. ANALYSIS

This case requires the Court to resolve two primary questions. First, the Court must determine whether the appellants, who are no longer "children" as defined by 38 U.S.C. § 101(4)(A), are nonetheless potentially eligible DIC claimants as the purported children of deceased veteran David Philpot. The parties apparently agree that VA should apply 38 C.F.R. § 3.400(c)(4) (2018) to determine the appropriate date on which to assess whether a person qualifies as a "child" for the purpose of determining eligibility for DIC. See Appellants' Suppl. Br. at 2-4; Secretary's Suppl. Br. at 1-3. However, the Court has not yet considered this issue in a precedential opinion. If the appellants cannot under any legal or factual theory show that they were "children" on the appropriate date, they are not eligible claimants, and the Court need not consider the matter further. See 38 U.S.C. §§ 1310, 1313.

If the Court determines that the appellants are potentially eligible claimants because they could have satisfied the definition of "child," the Court must next determine whether the record in this case reasonably raised the theory that there is a pending claim filed on the appellants' behalf while they were still "children."

A. Appropriate Date To Assess Whether a Person Qualifies as a "Child"

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