Ransom v. Wilkie, 19-9127

• Court: Court of Appeals for Veteran Claims
• Writing for the Court: FALVEY, Judge.
• Decision Date: 04 November 2020
• Parties: Iris Ransom, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.
• Docket Number: 19-9127

Iris Ransom, Appellant,
v.
Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 19-9127

United States Court of Appeals For Veterans Claims

November 4, 2020

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

Iris Ransom VA General Counsel.

Before FALVEY, Judge.

MEMORANDUM DECISION

FALVEY, Judge.

Self-represented appellant Iris Ransom, remarried spouse of deceased Army veteran David Hightower, appeals a December 13, 2018, Board of Veterans' Appeals decision that reopened but denied entitlement to dependency and indemnity compensation (DIC).^[1]The appeal is timely; the Court has jurisdiction to review the Board decision; and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

We are asked to decide whether the Board erred in denying Ms. Ransom's claim for DIC benefits because she did not qualify as the surviving spouse of the veteran under 38 U.S.C. § 101. Because the Board did not err in finding that Ms. Ransom did not qualify as a surviving spouse, we will affirm the December 2018 Board decision.

I. BACKGROUND

Mr. Hightower married Ms. Ransom in July 1965. R. at 1122. He served on active duty in the U.S. Army from May 1968 to March 1970. R. at 956. Mr. Hightower died in October 2000, and his death certificate lists the cause of death as a myocardial infarction. R. at 1149. On November 14, 2002, Ms. Ransom married Terry Ransom. R. at 752.

In August 2010, VA added ischemic heart disease to the list of diseases presumed to be linked to herbicide exposure. See Diseases Associated with Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and Other Chronic B-Cell Leukemias, Parkinson's Disease and Ischemic Heart Disease), 75 Fed. Reg. 53, 202 (Aug. 31, 2010) (amending 38 C.F.R. § 3.309(e)). Also in August 2010, Ms. Ransom filed a claim for DIC. R. at 1122-26. A VA regional office (RO) sent Ms. Ransom a December 2010 letter that stated, "Please note that because you were re-married on or after your 57^th birthday that you remain eligible for dependency and indemnity compensation." R. at 1079. In August 2015, the Board assumed that Ms. Ransom was the veteran's surviving spouse, yet denied her DIC claim based on a lack of a connection between the veteran's death and his military service. R. at 568-82.

In December 2016, Ms. Ransom requested that VA reopen her DIC claim. R. at 515-22. In July 2017, the RO denied the claim, informing Ms. Ransom that, because she remarried before December 16, 2003, she could only qualify as a surviving spouse if she had filed a claim by December 16, 2004. R. at 224-27 (citing 38 C.F.R. § 3.55(a)(10)(ii)). Ms. Ransom timely disagreed with that decision, R. at 222, and, in a September 2017 Statement of the Case (SOC), the RO continued to deny DIC because Ms. Ransom was ineligible as the veteran's surviving spouse for DIC purposes, R. at 210-11. Later in September 2017, Ms. Ransom filed a Substantive Appeal. R. at 175.

In December 2018, the Board issued the decision on appeal. R. at 70-76. Later the same month, Ms. Ransom filed a motion for reconsideration, which the Board denied in November 2019. R. at 1-2. This appeal followed.

II. ANALYSIS

In her informal brief, which the Court construes liberally, see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992), Ms. Ransom argues that the Board erred in denying her entitlement to DIC. Appellant's Informal Brief (Br.) at 1-6. She asserts that she remarried within the correct timeframe and that, even if she did not, she was not eligible to file for DIC until the August 2010 changes to § 3.309(e) provided presumptive service connection for ischemic heart disease, whic h she contends was Mr. Hightower's cause of death. Appellant's Br. at 1-3. The Secretary responds that the law does not provide DIC benefits for a spouse of a veteran who remarried after the age of 57 but before December 16, 2003, and who did not file a claim before December 16, 2004, and that the Court cannot provide equitable relief. See Secretary's Br. at 4-10.

The surviving spouse of a deceased veteran may qualify for DIC benefits if the veteran died from a service-connected or compensable disability. 38 U.S.C. § 1310. A "surviving spouse" must show that he or she was married to the veteran at the time of death, lived with the veteran continuously from the date of marriage to the date of death (the "continuous cohabitation" requirement), and hasn't remarried or lived with another person and held him or herself out publicly as the spouse of that person. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(2020); see Alpough v. Nicholson, 490 F.3d 1352, 1355 (Fed. Cir. 2007). As of January 1, 2004, a surviving spouse may retain that status for compensation purposes if he or she remarries after the age of 57. See Veterans Benefits Act of 2003, Pub. L. No. 108-183 (codified at 38 U.S.C. § 103(d)(2)(B)); 38 C.F.R. § 3.55(a)(10)(ii)(2020). But a surviving spouse who remarried after age 57 but before December 16, 2003, may only retain eligibility for death benefits if he or she filed a claim for benefits before December 16, 2004. See Frederick v. Shinseki, 684 F.3d 1263, 1273 (Fed. Cir. 2012) (holding that any spouse who sought benefits newly afforded by the Veterans Benefits Act of 2003 "is required to have applied for such benefits after the date of enactment of the Act and before the end of the one-year period thereafter."); Pub. L. No. 108-183 § 101(e).

The Court reviews the Board's...