On December 4, 2014, the Court of Appeals for Veterans Claims issued a decision in Gazaille v. McDonald (hyperlinked). The majority held that the claimant, the wife of a deceased Vietnam War veteran, was not entitled to Dependency and Indemnity Compensation (DIC) because she did not meet the statutory requirements (38 U.S.C. § 1304) or regulatory requirements (38 C.F.R. § 3.54(c)(2)) of being married for at least one year prior to death.
Factually, the claimant and veteran were married 58 days short of the one year length-of-marriage requirement under Section 3.54 (c)(2). The majority found that the regulatory and statutory language of 38 U.S.C. § 1304 and 38 C.F.R. § 3.54(c)(2) were unambiguous and required the marriage to the deceased veteran to be “for one year or more.” The majority rejected claimant’s argument that the legal concept of “equitable relief” is possible against the Government.
Before I comment on the concurring opinion of Judge Greenberg and dissenting opinion of Chief Judge Kasold, it’s important to note that the one-year length of marriage requirement is under 38 C.F.R. § 3.54(c)(2) is not the sole basis for establishing status as the “spouse” for DIC eligibility. Even if not married one-year prior to death, Section 3.54 provides other means of establishing status to include, inter alia: (1) if the marriage was less that one year but death and marriage occurred within 15 years of “expiration of 15 years after termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated”; or (2) “[f[or any period of time if a child was born of the marriage (Section 3.54(d) further defining “child born”)). I raise this issue because I just reviewed a decision where the Regional Office seemingly overlooked the application of 38 C.F.R. § 3.54(c)(1) and denied entitlement solely on the basis of the one-year marriage requirement under Section 3.54 (c)(2).
Back to the holding in Gazaille. Judge Greenberg, issued a concurring opinion, concurring in result but commenting that the CAVC may have equitable powers to grant relief. . . just not based upon the facts in Gazaille. Judge Greenberg commented in Footnote I that: “I note that if the appellant obtains, and proffers, appropriate evidence, she may present it to the court in a petition for extraordinary relief premised upon equity.” As another aside, Footnote I presents an interesting question of whether the CAVC has jurisdiction to review an initial petition for extraordinary relief based upon equity. In my humble opinion, Clinton v. Goldsmith, 526 U.S. 529 (1999) (discussing jurisdiction under the All Writs Act), may be the best reference point for such a question.
In Gazaille, Judge Greenberg further opined that the CAVC’s judicial powers as an Article I court should be similar in scope to the judicial powers of an Article III court and cited to a number of cases analyzing equitable relief under Article III, U.S. Constitution. As we noted in a prior blog, at Court of Appeals for Veterans Claims – Scope of Judicial Powers, Judge Greenberg had expressed similar concerns in a concurring opinion in Pacheco v. Gibson. In Pacheco, it appears the Judge Greenberg was analyzing the possibility of equitable relief solely as a Congressionally-created Article I Court under Title 38. In Gazaille, Judge Greenberg focused more on the comparative scope of “judicial” powers of an Article I Court to an Article III Court and the intrinsic powers of a Article III Court to administer equitable relief. Judge Greenberg, a well-respected NJ attorney prior to judicial appointment (and former Army Judge Advocate General), cited to a number of NJ Court decisions. As an aside, NJ’s Chancery Division has very unique judicial powers, and some of the NJ cases cited were not analyzing equitable powers under Article III, US Constitution. Regardless, the scope of judicial powers under Article I, US Constitution, has an unresolved history and jurisprudence, and a case stemming from the CAVC may be the vehicle for review by the US Supreme Court in the future.
Chief Judge Kasold issued an equally interesting dissenting opinion. Chief Judge Kasold based his dissent on claimant’s contention that her husband died prematurely due to VA medical malpractice and the corollary issue of entitlement under 38 U.S.C. § 1151. Chief Judge Kasold held in toto: “[A]lthough equitable estoppel against the Government is rare, if ever it were to apply the premature death of a veteran caused by VA medical malpractice that would otherwise prevent the surviving spouse of a valid marriage from receive DIC is just such a case. Because equitable estoppel is warranted in such circumstances, I would remand this matter for the Board to ensure development of Mrs. Gazaille’s assertion that her husband’s death was premature due to VA medical malpractice.”
If you have questions regarding your eligibility for survivor benefits before the Department of Veterans Affairs, please don’t hesitate to contact me at (732) 382-6070 or via email at firstname.lastname@example.org.