Copeland: Substitution of a Spouse and Medical Opinions

Constance Copeland v. Eric K. Shinseki, Opinion Number 11-2408, decided November 14, 2012 concerns a Board decision where the veteran’s spouse sought substitution after his death and also treats the adequacy of a medical opinion.

The veteran sought to reopen a claim in 2007 but died within 6 months.  His spouse filed for accrued benefits and DIC within months of his death in 2007.  Congress changed the law in 2008 allowing for substitution of a spouse in a pending claim for benefits for the purposes of processing the claim to completion if the substitution is sought within 1 year of the veteran’s death.  Substitution allows submission of evidence and gives the same right to the spouse as the veteran had.

The veteran’s spouse argued Congress’s assignment of an effective date to allow substitution violated the equal protection clause of the Fifth Amendment.  The court considered reviewed this argument under a rational basis rubric and it was not unconstitutional because the law had at least two rational bases exist: 1) avoidance of procedural difficulties of retroactive application of a new law, and 2) protection of public resources.

The veteran’s spouse also argued the Board failed to provide an adequate medical opinion.  Specifically, she says the medical opinion incorrectly stated the facts (lack of trauma to the affected area) and that no significant studies indicated a relationship between a tumor and trauma.  The Court noted the Board found no medical records evidencing a trauma to the left mandible and the Board determination was not clearly erroneous when it found the more recent allegation of a trauma was not an accurate reflection of the facts.

 Regarding the medical literature of trauma inducing tumors, the veteran’s spouse could only point to two studies and that they did not necessarily concern trauma occurring several years in the past.

Judge Hagel wrote dissenting opinion, though he agreed with the outcome.  He wrote that he thought the language authorizing the Court’s existence does not have the power to entertain facial constitutional challenges to statutes as opposed to rules and regulations of the Secretary.

This case makes clear Congress’s authorization of substitution of a spouse beginning in 2008 is not unconstitutional and that the Court will dig into the language of the medical opinion to see if it is adequate.

Decided by Chief Judge Kasold and Judges Hagel and Lance.