EVELYN H. HAYNES, Claimant-Appellant
ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 13-3031, Judge William A. Moorman.
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.
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).
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 hersel fout 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.
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" there under, 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 ...