Owings v. Brown

8 Vet. App. 17, 1995 U.S. Vet. App. LEXIS 425, 1995 WL 313027
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 24, 1995
DocketNo. 94-449
StatusPublished
Cited by28 cases

This text of 8 Vet. App. 17 (Owings v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Owings v. Brown, 8 Vet. App. 17, 1995 U.S. Vet. App. LEXIS 425, 1995 WL 313027 (Cal. 1995).

Opinion

STEINBERG, Judge:

The appellant, Carol L. Owings, appeals a March 21, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to dependency and indemnity compensation (DIC) benefits as the surviving spouse of veteran Clarence R. Nadeau (the veteran). For the reasons that follow, the Court will affirm the decision of the Board.

I. Background

The veteran served on active duty in the U.S. Army for eighteen years, receiving an honorable discharge in May 1974. Record (R.) at 8. He died of a heart attack in March 1979. R. at 11. In 1979, a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) awarded entitlement to DIC benefits to the appellant as a surviving spouse, based on a finding that a proximate cause, of the veteran’s death was his service-connected arteriosclerotic heart disease. R. at 19. The appellant remarried in March 1980, and VA terminated her DIC benefits, although her minor children apparently continued to receive benefits. R. at 23, 31; see R. at 34.

In March 1991, a Minnesota court issued a divorce decree terminating the appellant’s marriage. R. at 51. She notified a VARO in July 1991 that she was now divorced and wished to begin receiving DIC benefits. R. at 37. In August 1991, the RO notified her that her DIC benefits could not be “reinstated” because due to a change in the law, the “remarriage of a surviving spouse of a veteran is now a permanent bar against receiving benefits based on that veteran’s service.” R. at 40. The appellant filed a Notice of Disagreement (NOD) in February 1992 (R. at 48) and a Form 1-9 (Substantive Appeal to the BVA) in June 1992 (R. at 67). In her NOD, the appellant argued: “When I went on DIC it was understood that ... if I remarried [DIC benefits] would not be paid ... but would begin again if I was not [married]. Not renewing [the DIC benefits] seems [like] a breach of contract.” R. at 48. She submitted a letter from one attorney who stated that he had “met with Carol Owings for a consultation regarding a divorce in the fall of 1988” (R. at 76) and a letter from another attorney stating that he had “assisted [the appellant’s second husband] in his [dissolution matter” and that the husband had “commenced this legal action prior to November 1, 1990” (R. at 94).

In an April 1993 decision, the BVA remanded the appellant’s claim to the RO for it to contact the appellant and request that she “provide copies of all legal documents filed in connection with the proceedings that resulted in the March 1991 divorce ... including a dated copy of the petition for divorce”, and to review any such documents. R. at 116. The RO sent the appellant a May 1993 letter requesting the documents specified by the Board. R. at 120. A July 1993 Statement of the Case issued by the RO indicated that she had not responded to the RO’s May 1993 letter. R. at 126.

[19]*19In the March 21, 1994, BVA decision here on appeal, the Board, after finding that the claim was well grounded, denied entitlement to DIC because “the evidence does not establish that the legal proceedings to terminate the appellant’s [second marriage] began prior to November 1, 1990.” R. at 3. The BVA noted that “[u]nder the former provisions of 38 C.F.R. § 3.55, remarriage of a surviving spouse of a veteran did not bar receipt of VA benefits to such surviving spouse if her remarriage had been terminated by death or divorce”; however, the Board concluded, 1990 and 1992 statutes “provided that remarriage of a surviving spouse was a permanent bar against receiving benefits based on the veteran’s service” unless a legal proceeding to terminate an existing marriage was commenced before November 1, 1990, by the veteran’s widow or widower. R. at 4. The Board determined that the copy of the divorce decree submitted by the appellant did “not indicate when the proceedings to terminate the marriage commenced” and concluded that such proceedings “would normally commence with the filing of a petition for divorce.” Ibid. The Board found that the appellant was not entitled to reinstated DIC benefits because the evidence indicated that it was the appellant’s second husband, not the appellant, who had filed for the divorce; because there was no documentary evidence that the legal proceedings had commenced prior to November 1, 1990; and because she had not responded to the RO’s request for a “dated copy of the petition for divorce”. R. at 4-5. A timely appeal to this Court followed. On appeal, the appellant contends basically that she is the beneficiary of a “social contract” between herself and VA and that her DIC benefits pursuant to that contract were only temporarily suspended in 1980.

II. Analysis

A. Generally Applicable Law

When a veteran dies from a service-connected disability, the veteran’s surviving spouse is eligible for DIC. See 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a) (1994). A veteran’s death is due to a service-connected disability when “such disability was either the principal or a contributory cause of death.” See 38 C.F.R. § 3.312 (1994). A claim for DIC is treated as a new claim, regardless of the status of adjudications concerning service-connected-disability claims brought by the veteran before his death. See 38 C.F.R. § 20.1106 (1994); Zevalkink v. Brown, 6 Vet.App. 483, 491 (1994). Pursuant to 38 U.S.C. § 5107(a), once a claimant has submitted a well-grounded claim, the Secretary is required to assist that claimant in developing the facts pertinent to the claim. See 38 C.F.R. § 3.159 (1994); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990).

The statutes and regulations applying to a surviving spouse who remarries and then later divorces and reapplies for DIC have been modified several times in recent years. Item 1 below is the statute regarding remarriage of the widow of a veteran, 38 U.S.C. § 103(d), in effect before November 1990. Items 2 through 4 are amendments to 38 U.S.C. § 103(d) that became effective in 1990, 1991, and 1992, respectively. Item 5 is the statutory definition of “surviving spouse”. Item 6 is the current VA regulation interpreting 38 U.S.C. § 103(d).

Item 1. Pre-November 1, 1990, 38 U.S.C. § 103(d)(2):

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Bluebook (online)
8 Vet. App. 17, 1995 U.S. Vet. App. LEXIS 425, 1995 WL 313027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owings-v-brown-cavc-1995.