St. Cyr v. Wilkie
| Decision Date | 19 February 2020 |
| Docket Number | 18-7222 |
| Parties | Patricia Allison St. Cyr, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Patricia Allison St. Cyr General Coun
Before BARTLEY, Chief Judge.
Self-represented appellant Patricia Allison St. Cyr appeals a September 4 2018, Board of Veterans' Appeals (Board) decision denying entitlement to dependency and indemnity compensation (DIC) as the remarried spouse of deceased veteran Bruce Dennis St. Cyr and retroactive benefits pursuant to Nehmer v. U.S Veterans' Administration, 32 F.Supp.2d 1175 (N.D. Cal. 1999). Record (R.) at 5-13. For the reasons that follow, the Court will set aside the portion of the September 2018 Board decision denying retroactive benefits under Nehmer and will remand that matter for readjudication consistent with this decision. The Court will affirm the remainder of the Board decision.
Mr. St. Cyr served on active duty in the U.S. Marine Corps from August 1965 to June 1969, including service in Vietnam. R. at 306. He married Patricia in May 1971. R. at 579.
In June 1983, the veteran filed a claim for service connection for leukemia, which he asserted was related to exposure to Agent Orange in Vietnam. R. at 589-92. A VA regional office (RO) denied the claim in January 1984, finding that, although the veteran was exposed to Agent Orange in service, there was "no definitive medical evidence" linking leukemia to herbicide exposure.[1] R. at 542.
Mr. St. Cyr died the next month. R. at 532. His death certificate lists his cause of death as cardiopulmonary arrest due to or as a consequence of acute lymphoblastic leukemia. Id.
In October 1984, less than one year after the veteran had died, Patricia filed a claim for VA death benefits, including entitlement to DIC. R. at 520-23. The RO denied DIC in January 1985 because the veteran was not service connected for leukemia at the time of his death. R. at 514, 540. Patricia did not appeal the decision, and it became final. She subsequently remarried in February 1988, at the age of 40. R. at 33, 471.
In August 1993, the veteran's daughter, Jacqueline Denise St. Cyr, filed a claim for DIC benefits, claiming that her father's death was due to Agent Orange exposure in Vietnam. R. at 498-501. The RO denied Jacqueline's claim in June 1994 because, at that time, VA did not recognize leukemia as a condition presumptively associated with herbicide exposure. R. at 505-06. Jacqueline did not appeal that decision.
In August 2010, VA added leukemia to the list of diseases presumed to be associated with 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) ( 38 C.F.R. § 3.309(e)).
Three months later, Patricia requested that VA reopen her previously denied DIC claim. R. at 431-40, 483-90. In October 2011, the RO, in relevant part, determined that, although the veteran's death was caused by a service-connected disease, R. at 387-90, Patricia was not entitled to DIC because she had remarried at the age of 40 and, therefore, did not qualify as the veteran's surviving spouse for VA purposes, R. at 375-77.[2] Patricia timely disagreed with that decision, R. at 366-68, and, in a December 2015 Statement of the Case, the RO continued to deny her recognition as the veteran's surviving spouse for DIC purposes and denied entitlement to retroactive benefits under Nehmer, R. at 140-86. Patricia perfected an appeal the next month, R. at 113-14, and testified at a Board hearing in February 2017, R. at 31-51.
The Board issued the decision currently on appeal in September 2018. R. at 5-13. The Board found that Patricia did not qualify as the veteran's surviving spouse for DIC purposes based on her November 2010 claim, and therefore denied entitlement to DIC, because she remarried before attaining the age of 57 and was married at the time of the Board decision. R. at 6-8. The Board also denied entitlement to retroactive benefits under Nehmer because it found that, although Patricia qualified as a surviving spouse for Nehmer purposes between February 1984 when the veteran died and February 1988 when she remarried, R. at 9, she was not entitled to retroactive benefits under Nehmer because "there was no claim by [Patricia] that was pending, filed, or denied between September 25, 1985, and August 31, 2010" and she did not qualify as a surviving spouse when she sought DIC benefits in November 2010, R. at 11. The Board further stated:
In granting service connection for the cause of the Veteran's death in October 2011, the [RO] applied the Nehmer rules to set the effective date of entitlement at August 30, 1993. This was based on the date of a previous DIC claim by the daughter of the Veteran and the Appellant, which VA previously denied in May 1994, as those dates fell within the period under [38 C.F.R. §] 3.816(d)(2). However, that claim and decision were specific to the Veteran's daughter as a claimant, and they do not extend to the Appellant to establish retroactive entitlement.
Id. This appeal followed.
Patricia's appeal is timely and the Court has jurisdiction to review the September 2018 Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
In her informal brief, which the Court construes liberally, see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992), Patricia generally argues that the Board erred in denying her entitlement to DIC and retroactive benefits under Nehmer. Appellant's Brief (Br.) at 4-7. The Secretary urges the Court to affirm the Board's denial of DIC because the Board did not clearly err in finding that, since Patricia filed the instant claim in November 2010, she has not met the definition of surviving spouse for DIC purposes because she remarried before the age of 57 and has remained remarried to this day. Secretary's Br. at 5-7. The Secretary, however, concedes that remand is warranted for the claim for retroactive benefits under Nehmer because the Board provided inadequate reasons or bases for finding that Jacqueline's August 1993 DIC claim could not be construed as a claim, for Nehmer purposes, on her mother's behalf. Id. at 8-15.
DIC benefits may be awarded to a veteran's "surviving spouse" if the veteran died from a service-connected or compensable disability. 38 U.S.C. § 1310. A surviving spouse is a person (1) validly married to the veteran at the time of the veteran's death, (2) "who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse)," and (3) "who has not remarried or . . . lived with another person and held himself or herself out openly to the public to be the spouse of such other person." 38 U.S.C. § 101(3); see 38 C.F.R. § 3.50(b) (2019); see also 38 C.F.R. § 3.54(c) (2019) (). However, remarriage is not a bar to receiving DIC benefits if the claimant remarried after attaining the age of 57. 38 U.S.C. § 103(d)(2)(B); 38 C.F.R. § 3.55(a)(10) (2019) (implementing regulation).
The Court reviews the Board's surviving-spouse determination under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Dedicatoria v. Brown, 8 Vet.App. 441, 443 (1995). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ( that the Court may not overturn the Board's factual determinations "if there is a 'plausible' basis in the record for [those] determinations").
In rendering its decision, the Board is required to provide a written statement of reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
The Court agrees with the Secretary that the Board did not clearly err in finding that Patricia did not qualify as a surviving spouse for DIC purposes at any point since filing her November 2010 claim. As the Board explained, R. at 7 because Patricia remarried at the age of 40 and remains married to this day, she did not meet the definition of a surviving spouse for DIC purposes during that period. See 38 U.S.C. §§ 101(3), 103(d)(2)(B); Frederick v. Shinseki, 684 F.3d 1263, 1266 (Fed. Cir. 2012) (). Patricia...
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