Veteranclaims’s Blog

September 24, 2014

Carroll v. McDonald, No. 2014-7008(Decided: September 24, 2014); 38 U.S.C. § 103(d)(2)(B); Section 101(a); DIC; Surviving Spouse; ReMarriage

Excerpt from decision below:

“Section 101(a) of the Act, which was codified at 38 U.S.C. § 103(d)(2)(B), provided that “[t]he remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of [certain benefits, including DIC] to such person as the surviving spouse of the veteran.””

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“Section 101(e) is more reasonably understood as creating temporary eligibility for the class of surviving spouses who had previously been barred from seeking benefits due to remarriage. Because Mrs. Carroll is a member of that class, her eligibility for DIC benefits terminated when the one-year filing window of § 101(e) closed on December 16, 2004.”

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United States Court of Appeals for the Federal Circuit
______________________
NORMA D. CARROLL,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7008
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2585, Judge Alan G. Lance, Sr.
______________________
Decided: September 24, 2014
______________________
BARBARA J. COOK, of Cincinnati, Ohio, argued for
claimant-appellant. On the brief was ZACHARY M. STOLZ,
Chisholm Chisholm & Kilpatrick, Ltd., of Providence,
Rhode Island. Of counsel were ROBERT V. CHISHOLM,
MATTHEW J. ILACQUA, and NICHOLAS L. PHINNEY.
JOSHUA E. KURLAND, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondentappellee.
With him on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and MARTIN F. HOCKEY, Assistant Director. Of
2 CARROLL v. MCDONALD
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and AMANDA R. BLACKMON,
Staff Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before PROST, Chief Judge, CLEVENGER, and CHEN, Circuit
Judges.
CHEN, Circuit Judge.
Norma D. Carroll appeals from the decision of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a denial by the Board of Veterans’ Appeals (“Board”) of Mrs. Carroll’s claim to Dependency and Indemnity Compensation benefits. Carroll v. Shinseki, No. 12-2585, 2013 WL 3751775 (Vet. App. July 18, 2013) (unpublished). For the reasons set forth below, we affirm.
BACKGROUND

Mrs. Carroll married veteran Glenn Dodson in 1949. The couple remained married until Mr. Dodson’s death in 1992 from cardiac arrhythmia due to amyotrophic lateral sclerosis (“ALS”). Mrs. Carroll remarried two years later at the age of 64.
In the two years following Mr. Dodson’s death, Mrs. Carroll did not seek Dependency and Indemnity Compensation (“DIC”) benefits, which are available to the “surviving spouse” of a veteran whose death resulted from a service-related injury or disease. See 38 U.S.C. §§ 1310–1318. Mrs. Carroll’s eligibility for DIC benefits terminated upon her remarriage in 1994. At the time, an individual who remarried could not be considered a “surviving spouse” under the statute. See 38 U.S.C. § 103 (1986).
Nearly ten years after Mrs. Carroll’s remarriage, Congress enacted the Veterans Benefits Act of 2003, Pub. L. No. 108-183, which amended Title 38 to authorize DIC
CARROLL v. MCDONALD 3

benefits for surviving spouses who remarry after attaining age 57. Section 101(a) of the Act, which was codified at 38 U.S.C. § 103(d)(2)(B), provided that “[t]he remarriage after age 57 of the surviving spouse of a veteran shall not bar the furnishing of [certain benefits, including DIC] to such person as the surviving spouse of the veteran.”
The House Committee Report accompanying the Act expressed concern that the existing statute discouraged older spouses from remarrying; the amendment sought to remove that disincentive. See H.R. Rep. No. 108-211, at 12 (2003).
The Veterans Benefits Act of 2003 also provided new DIC eligibility for surviving spouses who remarried after the age of 57 but before the date of enactment of the Act.
Section 101(e) of the Act, which is uncodified, reads as follows:
APPLICATION FOR BENEFITS.—In the case of
an individual who but for having remarried would
be eligible for benefits under title 38, United
States Code, by reason of the amendment made by
subsection (a), and whose remarriage was before
the date of enactment of this Act and after the individual
had attained age 57, the individual shall
be eligible for such benefits by reason of such
amendment only if the individual submits an application
for such benefits to the Secretary of Veterans
Affairs not later than the end of the oneyear
period beginning on the date of enactment of
this Act.
Pub. L. No. 108-183 § 101(e).

Mrs. Carroll, who was over the age of 57 when she remarried in 1994, did not submit an application for DIC benefits during the one-year window created by § 101(e), which closed on December 16, 2004. During that time, the cause of Mrs. Carroll’s former husband’s death— ALS—was recognized as a condition that could be service4
CARROLL v. MCDONALD

related, though not presumptively so. See 38 C.F.R. § 4.124a (2004). That changed in 2008, when the Department of Veterans Affairs (“VA”) promulgated a regulation that established a presumption of service connection for ALS for any veteran who developed the disease at any time after separation from service. See Presumption of Service Connection for Amyotrophic Lateral Sclerosis, 73 Fed. Reg. 54,691 (Dep’t of Vet. Aff. Sept. 23, 2008).
In 2009, Mrs. Carroll filed an application for DIC benefits as Mr. Dodson’s widow. The regional office of the VA denied Mrs. Carroll’s claim because she submitted her application nearly five years after the close of the one year filing window for previously remarried spouses created by § 101(e) of the 2003 Act. Mrs. Carroll appealed to the Board, which denied her claim for the same reason. Mrs. Carroll then appealed to the Veterans Court, contending that § 101(e) applied only to individuals “who would have been eligible for DIC in 2003 but for the fact that they remarried,” and that the subsection was thus
inapplicable to her because she was not “eligible for benefits at that time because her husband’s death was not then deemed service-connected.” J.A. 3. The Veterans Court found that Mrs. Carroll’s argument conflated the concepts of entitlement and eligibility. Although Mrs. Carroll was not necessarily entitled to DIC benefits in 2003, the court explained, she was eligible to be considered
for those benefits on the basis of her prior marriage to Mr. Dodson. The fact that a service connection for Mr. Dodson’s ALS was not presumptively established did not mean that Mrs. Carroll was ineligible for DIC benefits or otherwise outside the ambit of § 101(e). Accordingly, the Veterans Court affirmed the Board’s decision.
Mrs. Carroll timely appeals. We have jurisdiction under 38 U.S.C. § 7292.
CARROLL v. MCDONALD 5

DISCUSSION
This appeal requires us to interpret a statute. We may “review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” § 7292(c). We review statutory interpretations of the Veterans Court without deference. Chandler v. Shinseki, 676 F.3d 1045, 1047 (Fed. Cir. 2012).
We interpreted the 2003 Act once before, in Frederick v. Shinseki, 684 F.3d 1263 (Fed. Cir. 2012). There, we considered the effect of Pub. L. No. 108-183 § 101(e) on a surviving spouse who filed for DIC benefits after the death of her veteran husband in 1970, lost those benefits sixteen years later upon remarriage after the age of 57, and then sought renewal of the benefits in 2007—
approximately three years after the closing of the one year filing window. In deciding that Mrs. Frederick was covered by § 101(e) and thus had filed too late to receive DIC benefits, we explained that the 2003 Act created “a class of surviving spouses who remarry after the age of 57
and who thus become eligible for DIC benefits as a result of the Act.” Frederick, 684 F.3d at 1266. That class, we elaborated, includes two groups:
(a) those who previously applied for and received DIC benefits, and whose remarriage before the effective date of the Act destroyed their eligibility for DIC benefits (such as Mrs. Frederick), and (b)
those who for whatever reason never applied for DIC benefits upon the death of their veteran
spouse, but who remarried before the effective date of the Act, and thereby lost eligibility for DIC
benefits. Id. In Frederick, we found that the surviving spouse fell into the first group; here, the Veterans Court essentially determined that Mrs. Carroll falls into the second group
6 CARROLL v. MCDONALD

and, similar to Mrs. Frederick, is therefore ineligible for
DIC benefits because she did not submit her application
for benefits within the one-year filing window of § 101(e).
On appeal, Mrs. Carroll argues that she was not “eligible
for benefits” until 2008, when the VA relaxed the
evidentiary burden for establishing a service connection
for ALS, the disease that caused the death of her husband.
Prior to that point, she contends, “the basis of her
DIC eligibility did not exist in law.” Appellant’s Br. 7.
Without the presumption of service connection for ALS in
place, it would have been difficult for her to establish the
service connection necessary to obtain DIC benefits. As
Mrs. Carroll sees it, our discussion in Frederick does not
apply to her because she never had any eligibility to lose:
she was not “eligible for benefits” under § 101(e) either
before or during its one-year filing window.
The Secretary, by contrast, maintains that the phrase
“eligible for benefits” in § 101(e) refers to “the class of
persons who would be recognized as surviving spouses by
virtue of subsection (a) but for having previously remarried.”
Appellee’s Br. 17. Section 101(e), the Secretary
argues, conferred “surviving spouse” status on these
previously ineligible individuals and thereby rendered
them eligible for benefits. As the Secretary reads
§ 101(e), the class of individuals who are “eligible for
benefits” is not limited to those who have already shown,
or who would necessarily be able to show, that they meet
all the criteria for entitlement to a benefit based on various
factual considerations. Rather, the class consists of
individuals to whom Congress granted a one-year window
to seek benefits for which they were previously ineligible
due to remarriage. We find the Secretary’s reading more
persuasive.
As the Veterans Court observed, Mrs. Carroll’s interpretation
equates eligibility for benefits with entitlement
to benefits. In support of her reading, Mrs. Carroll points
CARROLL v. MCDONALD 7
to other sections of Title 38 that appear to use the words
“eligibility” and “entitlement” interchangeably. See Reply
Br. 3 (citing, e.g., §§ 1317(b), 1513(b)). Mrs. Carroll notes
that these sections use the word “eligible” when referring
“to the concept of a claimant’s entitlement to a benefit.”
Id. While Mrs. Carroll’s characterization of those other
sections may be accurate, it does not support the notion
that “entitlement” and “eligibility” are used interchangeably
throughout all of Title 38. On the contrary, other
sections of Title 38 explicitly differentiate between the
two concepts. See, e.g., § 6303(c) (requiring the VA to
distribute information to “eligible dependents regarding
all benefits and services to which they may be entitled”).
The question we must address here is whether “entitlement”
and “eligibility” mean the same thing in the specific
context of the 2003 Act.
Tellingly, 38 U.S.C. § 103, which the 2003 Act amended
(and which specifically deals with the effect of marital
status on benefits), uses the phrase “eligibility for benefits”
to refer to the possibility of receiving benefits, not
entitlement to benefits. See § 103(d)(4) (defining when
“eligibility for benefits” starts in relation to termination of
a remarriage). As the Secretary points out, separate
statutory provisions define eligibility criteria for DIC
benefits, as well as the effective date of the award of such
benefits. See 38 U.S.C. §§ 1310, 5110. An “eligible”
spouse under § 103 must satisfy various conditions before
becoming entitled to a particular benefit.
In sum, although Mrs. Carroll points to examples in
other sections of Title 38 in which “eligible for” and “entitled
to” may be used interchangeably, the section of Title
38 that covers the effect of marital status on DIC benefits—
which was amended by the Act at issue in this
case—uses the phrase “eligibility for benefits” to mean
something other than “entitlement to benefits.”
8 CARROLL v. MCDONALD
Finally, we decline to apply § 101(e) in light of subsequent regulatory changes to evidentiary presumptions.
Mrs. Carroll’s interpretation of § 101(e) would require eligibility to be determined through a case-by-case evaluation of an individual’s likelihood of receiving benefits based on various factual circumstances and evidentiary presumptions which existed while the § 101(e) window was open but which may have changed after the window had closed. We do not read § 101(e) as contemplating the
consideration of such shifting circumstances. Section 101(e) is more reasonably understood as creating temporary eligibility for the class of surviving spouses who had previously been barred from seeking benefits due to remarriage. Because Mrs. Carroll is a member of that class, her eligibility for DIC benefits terminated when the one-year filing window of § 101(e) closed on December 16,
2004.
For the reasons stated above, the judgment of the
Veterans Court is affirmed.
AFFIRMED
COSTS
No costs.

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