Ventris: DIC and What is a Surviving Spouse

Ventris v. McDonough, Case Number 19-1860, was decided August 31, 2021 and involves a claim for DIC and status as a surviving spouse.    

Specifically, the case dealth with 38 CFR Section 3.55(a)(2)(ii) a provision governing re-instatement of VA benefit eligibility when a deceased veteran’s spouse remarries and subsequently divorces. 

The veteran died in 1957 and the surviving spouse remarried in 1958.  That marriage ended in divorce and she was remarried and that marriage also ended in divorce in 1973.  In 2010 she applied for DIC benefits.  Benefits were denied due to her remarriages.

“The Board found that Ms. Ventris and Mr. Adcock were validly married to each other at the time of his death. R. at 7. However, the Board concluded that Ms. Ventris's April 1958 remarriage terminated her eligibility as the veteran's surviving spouse for DIC, accrued benefits, and death pension purposes, stating that "[b]efore January 1, 1971, the only exception permitting restoration of her eligibility as the surviving spouse . . . was if the remarriage was void, or annulled.”  Id. at *2.

The Court noted that prior to 1970 remarriage was an absolute bar to benefits.  Now, “remarriage of a surviving spouse generally bars the furnishing of VA benefits to such surviving spouse, but termination of that remarriage may reinstate eligibility for some benefits.”  Id. at *3.  The regulation actually reads:

“On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage . . . [h]as been dissolved by a court with basic authority to render divorce decrees[.]”

The Court addressed the history of the marriage bar and then agreed with the surviving spouse that

“context indicates that the disputed language, "[o]n or after January 1, 1971," refers to the date of the surviving spouse's claim for VA benefits after the termination of a remarriage. Specifically, the statutory and regulatory history reveal that each of the dates referenced in the regulation reflects the date of a statutory change regarding benefits eligibility upon termination of remarriage and the effective date for the award of benefits subsequent to changes in benefits eligibility. As is evident from the 1970 statutory changes, those dates can only meaningfully be interpreted to correspond to the date of a claim for survivor benefits.”

Id. at *7.

“Indeed, we see no indication that Congress intended to tie benefits eligibility for surviving spouses to dates of remarriage or divorce. To the extent that Congress contemplated the effective date of changes to benefits eligibility in the relevant statutes, the statutory changes make clear that the surviving spouse's date of remarriage was never the pertinent consideration.”

Id. at *7.

The Court then concluded that as her remarriage terminated in divorce and she filed for DIC in 2010, she is not barred from eligibility for DIC benefits.  Id. at *8.  The Court remanded for consideration of whether DIC was established.  The Court then noted the older death pension is not exempted from the remarriage bar.  Id. at *10. 

This is an important case to surviving spouses who have been denied DIC due to remarriages and opens the door to possible benefits. 

Decision by Chief Judge Bartley and Judges Pietsch and Toth.

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Furtick: Class Actions and Predecision Hearings

Furtick v. McDonough, Case Number 20-4638, was decided August 25, 2021 and involves a proposed class action as to whether denial of a hearing by the AOJ is an appealable issue. 

The veteran filed a supplemental claim as to sleep apnea and requested a predecision hearing.  His request for a hearing was denied and he appealed to the Board, which found a denial of a hearing at the AOJ is not an appealable determination by the VA.  Id. at *1.  Instead, the Board stated that such an error could be raised in an appeal of a decision denying the benefit sought.  Id. at *2.

Ultimately a rating decision did deny service connection and the veteran subsequently filed an HLR discussing the lack of hearing.  As a result, the HLR acknowledged the veteran was entitled to a hearing and remanded the issue for one.  A hearing took place before this case was decided.

Before the Court, the veteran also sought to represent a class of all claimants who requested a hearing, which was denied.  Id. at *2.  As a result of the hearing being given, the VA sought to have the appeal dismissed.  Id. at *2.

The Court began by noting there is no longer a case or controversy as to Mr. Furtick and agreed dismissal of his individual appeal is appropriate.  Id. at *3.  As to the proposed class action, the Court noted an appeal can continued if an exception to mootness applies.  Id. at *3.  For this case, the Court assumed such an exception existed.  Id. at *3. 

The Court then explained its dismissal of the proposed class certification by saying:

“The problem for Mr. Furtick is that he and his purported class would not share the same relief at all given the Board's decision and the definition of the class Mr. Furtick seeks to represent. Our “jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed.”  This means that “when the Board has not rendered a decision on a particular issue, [this Court] has no jurisdiction to consider it under section 7252(a).”  And here, the Board has not decided whether a claimant is entitled to a predecisional hearing.

Instead, the Board decided that Mr. Furtick could not appeal the denial of a hearing as a stand-alone appellate claim. Thus, the Board dismissed his appeal without deciding whether he was entitled to a hearing. As a result, we would be limited to deciding whether a claimant has a right to appeal the AOJ’s denial of a hearing. If Mr. Furtick’s claim had continued, and had he prevailed on the merits of his appeal, we could order the Board to adjudicate his claim. In this hypothetical, if Mr. Furtick was also representing a class, we could enjoin the Board from refusing jurisdiction from claimants who want to appeal the AOJ’s denial of a hearing.”

Id. at *4.

This is an excellent example of the fact the Court views class actions with skepticism and will work hard to find a reasons to reject.  Here, they determined the proposed class and individual’s case were procedurally to dissimiliar.

Per Curium.

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