Veteranclaims’s Blog

April 29, 2015

Haynes v. McDonald, No. 2015-7014(Decided: April 29, 2015); Surviving Spouse; 38 U.S.C. §1310; Section 3.50(b)

Excerpt from decision below:

“Section 1310 provides for DIC benefits to a “surviving spouse.” A
“surviving spouse” is defined in Title 38 as a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and 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 who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, 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).

======================

“Section 3.50(b) defines the “surviving spouse” as someone “who was the spouse of the veteran at the time of the veteran’s death,” tracking the statute. No exception to this clear statutory mandate and regulation is indicated.”

====================

United States Court of Appeals for the Federal Circuit
______________________
EVELYN H. HAYNES,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7014
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3031, Judge William A. Moorman.
______________________
Decided: April 29, 2015
______________________
EVELYN H. HAYNES, Richmond, VA, pro se.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represented
by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER; DAVID J. BARRANS, CHRISTINA
LYNN GREGG, Office of the General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
2 HAYNES v. MCDONALD
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
NEWMAN, Circuit Judge.
Evelyn H. Haynes appeals from the decision of the
United States Court of Appeals for Veterans Claims (the
“Veterans Court”) affirming the Board of Veterans’ Appeals
(the “Board”) denial of Ms. Haynes’ request to
reopen her claim for Dependency and Indemnity Compensation
(“DIC”) on the basis of new and material evidence,
pursuant to 38 U.S.C. §5108 (2012) and 38 C.F.R.
§3.156(a) (2012). Haynes v. McDonald, No. 13-3031, 2010
WL 10873668 (Vet. App. Oct. 14, 2014).
DISCUSSION
Ms. Haynes and Donald S. Haynes were divorced in
May 1995. Mr. Haynes died in August 2000. Following
Mr. Haynes death, Ms. Haynes submitted an application
for DIC benefits pursuant to 38 U.S.C. §1310. Section
1310 provides for DIC benefits to a “surviving spouse.” A
“surviving spouse” is defined in Title 38 as
a person of the opposite sex who was the spouse of a
veteran at the time of the veteran’s death, and 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 who has not remarried or (in
cases not involving remarriage) has not since the
death of the veteran, and after September 19, 1962,
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). Because Ms. Haynes was not married
to Mr. Haynes at the time of his death, the VA Regional
Office denied Ms. Haynes’ DIC claim for failing to meet
the definition of “surviving spouse” as required by statute.
HAYNES v. MCDONALD 3
Ms. Haynes later submitted a request to the Regional
Office to reopen her claim on the presentation of new
documentation showing a decision by the Army Board of
Correction of Military Records (“ABCMR”) to award
Ms. Haynes an annuity as a “former spouse” under the
Uniformed Services Former Spouse Protection Act
(“USFSPA”). Annuities under the USFSPA are governed
by Title 10 of the United States Code, and the definition
of a “former spouse” thereunder, at 10 U.S.C. §1447(10), is
different from the definition of a “surviving spouse” under
Title 38. Further, the USFSPA permits former spouses to
receive annuities even if they were divorced from the
veteran at the time of the veteran’s death. See 10 U.S.C.
§§1448(b), 1450.
The Regional Office denied Ms. Haynes’ request to reopen
her DIC claim, and Ms. Haynes appealed to the
Board of Veterans’ Appeals. The Board denied Ms.
Haynes’ request. The Board observed Ms. Haynes’
acknowledgement that she was divorced from Mr. Haynes
at the time of his death. With respect to the ABCMR’s
decision to grant Ms. Haynes an annuity as a “former
spouse,” the Board determined that “[r]ecognition as a
‘former spouse’ does not relate to an unestablished fact
necessary to substantiate the claim, namely, that the
Appellant was married to the Veteran at the time of the
Veteran’s death.”
The Regional Office acknowledged Ms. Haynes’ argument
that because the basis for her divorce from
Mr. Haynes was his physical abuse,1 she should not be
required to demonstrate marriage at the time of
Mr. Haynes’ death in order to receive DIC benefits.
Ms. Haynes states that her claim to DIC benefits is not
1 The record documents instances of abuse, arrests,
restraining orders, and the like. Abuse is not disputed.
4 HAYNES v. MCDONALD
based on her status as a surviving spouse, but “on the
alternative theory of entitlement under 38 C.F.R.
§3.50(b)(1) exception for abused spouses.” Haynes, 2010
WL 10873668, at *3. Section 3.50(b)(1) provides that a
“surviving spouse”:
means a person of the opposite sex whose marriage
to the veteran meets the requirements of
§3.1(j) and who was the spouse of the veteran at
the time of the veteran’s death and:
(1) 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 . . . .
The Veterans Court explained that although
Mr. Haynes’ abusive actions were documented, §3.50(b)(1)
requires validly married spouses at the time of the veteran’s
death. Haynes, 2010 WL 10873668, at *2, *4. The
Veterans Court held that the statute provides no exception
to this requirement. Id. at *3.
We discern no error in the Veterans Court’s interpretation
of §3.50(b)(1) as providing no exception to the
requirement that the surviving spouse and veteran be
married at the time of the veteran’s death. Section
3.50(b) defines the “surviving spouse” as someone “who
was the spouse of the veteran at the time of the veteran’s
death,” tracking the statute. No exception to this clear
statutory mandate and regulation is indicated.
The Veterans Court correctly construed the law and
regulations governing Ms. Haynes’ request for DIC. The
decision is affirmed.
AFFIRMED
No costs.

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