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Allen v. West

U.S. Court of Appeals, Federal Circuit

February 05, 1999


Before Mayer, Chief Judge, Rich, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

Mary E. Allen appeals a judgment of the Court of Veterans Appeals ("CVA"), No. 97-1038 (June 19, 1998), which affirmed the Board of Veterans' Appeals' ("BVA") refusal to reinstate pension benefits. We affirm.

"Our jurisdiction to review decisions of the Court of Veterans Appeals is limited to consideration of `the validity of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.'" Bailey v. West, 160 F.3d 1360, 1362 (Fed. Cir. 1998) (in banc) (quoting 38 U.S.C. § 7292(a), (d)(1) (1994)). We set aside decisions of the CVA that we find to be: "[1] arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law; [2] contrary to constitutional right, power, privilege, or immunity; [3] in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or [4] without observance of procedure required by law." 38 U.S.C. § 7292(d)(1). Moreover, "interpretation of a statute or regulation is a question of law which we review de novo." Jensen v. Brown, 19 F.3d 1413, 1415 (Fed. Cir. 1994).

Allen's husband began to receive pension benefits in 1973 (effective 1971), pursuant to the Veterans' Pension Act of 1959, Pub. L. No. 86-211, 73 Stat. 432 (1959), which went into effect on July 1, 1960. In 1978, veterans were given the option of continuing their benefits or receiving new benefits under the Veterans' and Survivors' Pension Improvement Act of 1978, Pub. L. No. 95-588, § 306, 92 Stat. 2497, 2508 (1978) ("the 1978 Act"). Allen argues that because her husband did not elect to receive new benefits under the 1978 Act he "remains with the old law" and should not have spousal income included when determining eligibility. Allen is correct that her husband did not make an election under the 1978 Act, but this choice does not require the exclusion of spousal income. Failure to elect under the 1978 Act results in the veteran "continu[ing] to receive pension at the monthly rate being paid to such person on December 31, 1978 . . . ." Id. Although the veteran does not receive new benefits under the 1978 Act, continuing benefits are still paid pursuant to section 306 of the 1978 Act, as determined by the pre-1979 rate. See id.; see also Bone v. Brown, 9 Vet. App. 446, 447 (1996) ("Under section 306 of the [1978 Act] persons eligible for or receiving death pensions as of December 31, 1978, could elect to receive an "improved" pension or to receive the pension as provided under the old law, i.e., receive a Section 306 pension.").

Because Allen's husband began to receive benefits in 1973 (effective 1971) and did not elect to participate in the 1978 new pension system, his benefits were determined pursuant to section 306(a)(2). Eligibility for these benefits takes spousal income into consideration. See 38 C.F.R. § 3.262(b)(2) (1998). Moreover, the regulations in place when Allen's husband became eligible for his pension specifically stated that benefits payable under Pub. L. 86-211-the Veterans' Pension Act of 1959-includes spousal income. See 38 C.F.R. 3.262(b)(2) (1970). Subsequent regulations merely replaced "Pub. L. 86-211" with "section 306(a) of Pub. L. 95-588." See 38 C.F.R. § 3.262(b)(2) (1998). Therefore, exclusion of spousal income under "old-law pension," see 38 U.S.C. § 503 (1958) (current version at 38 U.S.C. § 1503 (1994)); 38 C.F.R. § 3.1(v) (1998), is available only if the veteran began receiving benefits before July 1, 1960. See 38 C.F.R. § 3.262(b)(2) (1998). Allen's husband always received benefits pursuant to a system that included spousal income. See 38 C.F.R. §§ 3.252(b), 3.262(b)(2), 3.960(b) (1998); see also Cutler v. Derwinski, 2 Vet. App. 336 (1992) (including spouse's income when determining eligibility of veteran's section 306 pension benefits, which began in 1971).

Allen also asserts that the CVA made several other errors. Because these allegations do not implicate any regulation or statute relied upon by the CVA, we lack jurisdiction to review them. See 38 U.S.C. § 7292(a), (d)(1).


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