Wolfe v. Wilkie, 17-0519
| Decision Date | 31 August 2020 |
| Docket Number | 17-0519 |
| Parties | LouAnn Wolfe, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Argued September 24, 2019
On Appeal from the Board of Veterans' Appeals
Harold H. Hoffman III, of Arlington, Virginia, for the appellant.
Joshua L. Wolinsky, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Kenneth A. Walsh, Deputy Chief Counsel; all of Washington, D.C., were on the brief for the appellee.
Before PIETSCH, BARTLEY, and FALVEY, Judges.
The appellant, LouAnn Wolfe, appeals through counsel a December 12, 2016, decision of the Chairman of the Board of Veterans' Appeals (Board). In that decision, the Chairman denied a motion for reconsideration of a May 28, 2014, Board decision finding the appellant not an eligible surviving spouse for purposes of receiving VA death benefits. Record (R.) at 2-11. On March 26, 2019, the Court formed a panel to determine whether the circumstances upon which the Board may grant reconsideration of a Board decision are strictly limited to those specifically listed in 38 C.F.R. § 20.1000.[1] For the reasons that follow, the Court will dismiss the appeal.[2]
I. FACTUAL AND PROCEDURAL HISTORY
The veteran (James Wolfe) served in the U.S. Marine Corps from October 1967 to October 1969. R. at 1896. He died on August 9, 2010. R. at 214. In an August 2010 letter, VA informed the veteran's estate of the potential benefits available to the veteran's eligible survivors, further noting that VA records did not state whether the veteran was married at the time of his death. R. at 435-46. In correspondence dated August 2010, Ms. Wolfe, the appellant, provided the veteran's marital history, asserting that she and the veteran had been "together" during the 10 years prior to his death. R. at 433-34. She also wrote that the veteran had been married twice before she and the veteran formed a relationship, and his marriage to Rhonda Mathews officially ended in May 2010. Id. In August 2010 the appellant submitted a copy of a May 10, 2010, divorce decree between the veteran and Rhonda Mathews. R. at 423-28. In a letter dated September 2010, the appellant was informed that as the surviving spouse of the veteran, she was entitled to receive the veteran's benefits for the month in which he died. R. at 408-09.
In October 2010, the appellant filed a claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits. R. at 378-85. That same month, she explained that she had met the veteran in 2001, shortly after his previous marriage had ended and they had lived together as husband and wife for 10 years until they were legally married in February 2010. R. at 417-18. In a November 2010 letter, the regional office (RO) denied her claim because the evidence did not show that she met the eligibility requirements of a surviving spouse. R. at 329-31.
The appellant filed a Notice of Disagreement (NOD) with this decision in December 2010. R. at 312-13. In a July 2011 statement, the appellant asserted that she and the veteran were in a common law marriage that dated back to 2001. R. at 108. In a July 2011 Statement of the Case the RO found that though the appellant may be able to establish that she and the veteran were in a common law marriage, this marriage began May 10, 2010, the date of the veteran's divorce from Rhonda Mathews. R. at 215-231. The appellant perfected her appeal in August 2011. R. at 177-78. In a September 2011 Supplemental Statement of the Case, the RO explained that pursuant to 38 C.F.R. § 3.54(b)(2), to establish entitlement to death benefits the appellant must have been married to the veteran for 1 year or more prior to his death. R. at 174.
In June 2012, the appellant submitted an incomplete copy of a Texas marriage certificate between the veteran and Rhonda Mathews and, in an adjoining statement, asserted that the veteran had applied for a marriage license with Rhonda Mathews, but they were not actually married. R. at 113-14. The appellant attended a Board hearing in July 2012 and testified that the veteran and Rhonda Mathews were never legally married, and that she and the veteran began living together in 2001 before he went to prison. R. at 70-73.
In a May 28, 2014 decision, the Board acknowledged that the veteran and the appellant lived together continuously from 2002 until his death in August 2010. R. at 2-11. However, it found that the veteran's previous marriage had not been dissolved until May 2010. Thus, according to the Board, the appellant and the veteran were in a common law marriage less than 1 year before the veteran died in August 2010, and therefore, the appellant was not an eligible surviving spouse for purposes of receiving VA death benefits. Id. The Board also determined that the claim for service connection for the cause of the veteran's death was moot. Id.
The appellant submitted correspondence in August 2014, which VA construed as a motion for reconsideration of the May 28, 2014, Board decision. Supplemental (Supp.) R. at 5-6; see Supp. R. at 1. In December 2014, an Oklahoma State court issued an order vacating the divorce decree between the veteran and Rhonda Mathews. Supp. R. at 13-14. In March 2015, the appellant submitted a request to reopen the DIC claim and included the December 2014 Oklahoma State court order. In a May 2015 rating decision, the RO granted entitlement to DIC benefits pursuant to 38 U.S.C. § 1318, effective March 25, 2015. Supp. R. at 7-9.
In June 2016, the appellant asserted that in May 2014 the Board denied her claim for DIC benefits based on the earlier finding that the veteran was married to Rhonda Mathews up to a few months before his death. Supp. R. at 10-12. But the appellant claimed that the May 2010 divorce decree on which the Board relied to make this determination was not a valid legal document. Id. She also submitted the December 2014 order from the Oklahoma State court, which found that Rhonda Mathews fraudulently induced the veteran into believing he was married to her because (1) the marriage license was not fully executed by either party, and (2) the veteran was incarcerated in Texas at the time the alleged marriage took place. Id. at 13-14. As a result, the Oklahoma State court determined that the marriage between the veteran and Rhonda Mathews was never legally binding, and thus the court vacated the May 10, 2010, divorce decree. Id. The appellant maintained that the May 2014 Board decision was "based on fraudulent documents created by the fraudulent acts that were out of the control of the veteran or the claimant." Id. at 11.
In a December 2016 ruling, the Board Chairman denied the appellant's motion for reconsideration. Id. at 1-3. On February 21, 2017, the appellant filed a Notice of Appeal (NOA) with this Court as to the denial of the motion for reconsideration of the May 2014 Board decision.
II. ANALYSIS
Generally, this Court's review is limited to "final decision[s] of the Board of Veterans' Appeals," 38 U.S.C. § 7252(a), and an NOA of a Board decision must be submitted to the Court within 120 days after the date on which notice of the Board decision was mailed, 38 U.S.C. § 7266. But, the Court may conduct a limited review of the Board Chairman's denial of the motion for reconsideration if the appellant (1) files a motion for Board reconsideration within 120 days after the date the underlying final Board decision was mailed, and then (2) files an NOA within 120 days after the Board Chairman has mailed notice of the denial of the reconsideration motion. See Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991).
Under 38 C.F.R. § 20.1000, reconsideration may be accorded at any time by the Board on its own motion or the appellant's motion, under the following circumstances:
In Patterson v. Brown, 5 Vet.App. 362, 365 (1993), the Court, borrowing language from I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 280 (1980), found that Mr. Patterson had not alleged either "new evidence" or "changed circumstances." Rather, he had sought reconsideration of a Board decision on "the same record that was before the agency when it rendered its original decision"-i.e., he alleged obvious error. Patterson, 5 Vet.App. at 365 (quoting Microwave Commc'ns, Inc. v. FCC, 515 F.2d 385, 387 n.7 (D.C. Cir. 1974)). Thus, the Court determined that the Board Chairman's denial was not reviewable because, as Locomotive Engineers held, a claimant alleging obvious error could appeal the underlying Board decision and that same issue he or she raised in the motion for reconsideration would then be before the Court. Id.
In McCall v. Brown, 6 Vet.App. 215, 217-18 (1994), the Court, referencing Patterson, found that the Secretary's admission of "obvious error" in a Board decision-as opposed to an appellant's allegation of obvious error-constituted "'changed circumstances' of the sort which compel the exercise rather than the declination of jurisdiction by the Court."
In Romero v. Brown, 6 Vet.App. 410, 413 (1994), the Court found that the veteran's allegation in his motion for reconsideration (that the issue of POW status was not presented to the Board prior to its decision) did not constitute "changed circumstances" warranting judicial review. The Court also stated that, by limiting reconsideration to specific new and material...
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