Remington v. Wilkie, 18-6983
| Decision Date | 29 May 2020 |
| Docket Number | 18-6983 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Kathryn Martinez Remington, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Kathryn M. Remington General Counsel.
Before GREENBERG, Judge.
Kathryn Martinez Remington appeals pro se an August 16, 2018, Board of Veterans' Appeals decision that determined the appellant could not be recognized as the surviving spouse of Vietnam War veteran Andrew D. Martinez. Record (R.) at 4-12. The appellant presents many allegations of error regarding the Board's decision that the Court will construe as a challenge to the Board's statement of reasons or bases for its determination that she and the veteran did not hold themselves out to the community as married after their October 2009 divorce . Appellant's Informal Brief at 1-29; see also Calma v. Brown, 9 Vet.App. 11, 15 (1996) (). For the following reason, the Court will set aside the Board's August 2018 decision and remand the matter for readjudication.
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) (). 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 he 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) (); see also Henderson v. Shinseki, 562 U.S. 428, 440, 131 S.Ct. 1197, 1205 (2011) ().
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.
The veteran served in the U.S. Army from September 1969 through September 1971, as clerk, to include service in the Republic of Vietnam. R. at 505 (DD Form 214).
The appellant and the Veteran entered into a valid common law marriage in Colorado in 2003 where they resided at that time. R. at 8.
On August 7, 2009, the veteran and the appellant were ceremonially married in Tennessee while the veteran was undergoing VA treatment in the state. R. at 478.
On October 20, 2009, the veteran and the appellant were divorced in Missouri, where they resided until the veteran's death. R. at 405-09.
The veteran died on April 5, 2011. R. at 510. A Colorado Daily Tribune obituary notes that the veteran "will be remembered as a husband" and is survived by Kathryn Remington. R. at 275.
In April 2012, the appellant filed an application for dependency and indemnity compensation (DIC) benefits. R. at 465-74.
The same month the appellant submitted a statement to her veteran service officer. R. at 171. She wrote that following her October 2009 divorce from the veteran they "agreed to return to our common law status, not knowing that the dissolution also voided our valid Colorado common law marriage, and that the State of Missouri does not recognize common law marriage. R. at 171.
In September 2012, the appellant's brother submitted a VA Form 21-4171 Supporting Statement Regarding Marriage. R. at 300-01. He stated that the veteran and appellant were generally known as husband and wife, stated that he considered them to be husband and wife, and stated that they never denied their marriage. R. at 300. He wrote:
Kathy and Andrew were inseparable and dedicated to each other. They went to all [doctor] appointments together, you never saw one without the other. We consider Andrew a member of the family and were happy they married. I was part of the discussion of whether to end their formal marriage and neither one was happy about having to end the marriage, but Kathryn was so worried about Andrew losing his SSI money and felt the transplant might not be possible on her SSDI pension of $900 a month. We still considered them married and the marriage certificate was proudly displayed in their living room. In our eyes they were never divorced.
The appellant's son also submitted a VA Form 21-4171 Supporting Statement Regarding Marriage in September 2012. R. at 302-03. He also stated that the veteran and appellant were generally known as husband and wife, stated that he considered them to be husband and wife, and stated that they never denied their marriage. R. at 302. He added that the veteran and the appellant lived together from September 14, 2009, through April 5, 2011." R. at 303. He then wrote: R. at 303.
In October 2012, the appellant submitted a VA 21-4170 Statement of Marital Relationship asserting that she and the veteran lived together until his death and that "family, friends, doctors, [and] the community regarded us as husband and wife during this period and [their relationship] was widely publicized." R. at 296. The appellant also submitted a statement in support of claim form and alleged that nothing about their relationship changed between September 14, 2009, and April 5, 2011. R. at 314. She indicated that she regretted getting the divorce and asserted that she believed her common law marriage from Colorado was still valid. R. at 314. She asked VA to recognize her marriage to the veteran as a "deemed valid marriage" under 38 U.S.C. § 103(a). R. at 314.
In the August 2018 decision on appeal, the Board determined that entitlement to DIC benefits was not warranted because the veteran and the appellant did not hold themselves out to be married following their divorce. R. at 4. The Board first acknowledged the veteran and the appellant's valid 2003 Colorado common-law marriage, their ceremonial marriage in Tennessee, and subsequent divorce in Missouri. R. at 8. After acknowledging these facts, the Board stated "the dispositive issue is whether the requirements for a marriage that can be deemed valid were met after that time." R. at 8.
The Board then found that "a preponderance of the evidence is against a finding that the Veteran and the appellant held themselves out as married following the October 2009 divorce." R. at 9. The Board listed evidence suggesting that the veteran and the appellant did hold themselves out as married following their October 2009 divorce, including the appellant's lay testimony regarding her state of mind in the years following the divorce and her belief that the common law marriage from Colorado was still valid, the veteran's obituaries, lay testimony from family and friends, life insurance forms, and VA...
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