Ruel v. Wilkie , 918 F.3d 939 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
TERESA A. RUEL,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-2562
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4075, Chief Judge Robert N. Da-
vis, Judge Coral Wong Pietsch, Senior Judge William A.
Moorman.
______________________
Decided: March 15, 2019
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
Also represented by FRANCIS M. JACKSON, Jackson & Mac-
Nichol, South Portland, ME.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT; Y. KEN LEE, DEREK
2 RUEL v. WILKIE
SCADDEN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Before MOORE, REYNA, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Teresa A. Ruel, the surviving spouse of a U.S. veteran,
appeals from the U.S. Court of Appeals for Veterans
Claims (Veterans Court) decision affirming a Board of Vet-
erans’ Appeals (Board) decision denying her an effective
date of 1984, rather than 2009, for her Dependency and In-
demnity Compensation (DIC) claim. Mrs. Ruel first filed a
DIC claim in 1984. The Board found that the Department
of Veterans Affairs (VA) Regional Office (RO) had denied
Mrs. Ruel’s 1984 DIC claim in a single sentence of a re-
sponse to a separate burial benefits claim that had found
no service connection between Mr. Ruel’s service and his
death, because service connection is also a requirement for
a DIC claim. In affirming the Board’s finding, the Veterans
Court found that this sentence was sufficient to put Mrs.
Ruel on notice, under the VA’s notice regulation 38 C.F.R.
§ 3.103, that her DIC claim had been explicitly denied. Be-
cause proper notice of an explicit denial of a claim under 38
C.F.R. § 3.103 requires an actual statement or otherwise
clear indication of the claim being denied, we reverse.
BACKGROUND
Richard W. Ruel served in the U.S. Marine Corps from
March 1966 to May 1969, including two tours in Vietnam
during which he was exposed to Agent Orange. He died on
June 23, 1984. As his surviving spouse, Mrs. Ruel then
filed claims for certain benefits.
On July 6, 1984, the VA received from Mrs. Ruel a com-
pleted Form 21-534, entitled “Application for Dependency
and Indemnity Compensation or Death Pension by Surviv-
ing Spouse or Child.”. The form is for two different claims:
RUEL v. WILKIE 3
(1) DIC, which is a tax-free monetary benefit paid to eligi-
ble survivors of veterans whose death resulted from a ser-
vice-related injury or disease, and (2) Death Pension by
Surviving Spouse or Child, which is a tax-free monetary
benefit payable to a low-income, un-remarried surviving
spouse and/or unmarried children of a deceased veteran
with wartime service. The VA treats a submission of this
form as an application for both DIC and death pension ben-
efits. See 38 U.S.C. § 5101(b)(1); 38 C.F.R. § 3.152(b)(1).
On July 19, 1984, the RO sent Mrs. Ruel a letter explaining
that her claim for death pension benefits was denied be-
cause her income exceeded the maximum income limita-
tion. The letter did not mention a DIC claim.
On July 27, 1984, the VA received from Mrs. Ruel a
completed Form 21-530, entitled “Application for Burial
Benefits.” On August 10, 1984, the VA sent Mrs. Ruel a
three-sentence response letter:
We have authorized payment to you in the amount
of $150.00 as an allowance for the funeral and bur-
ial expenses of the deceased veteran. The evidence
does not show that the veteran’s death was due to
a service connected condition. $150.00 of the total
payment authorized represents an allowance for
plot or interment expenses.”
J.A.40. 1 The letter directed the reader to “see reverse for
procedural and appellate rights.” Id. Mrs. Ruel did not
appeal any of the RO’s 1984 determinations.
In 2009, ischemic heart disease was added to the pre-
sumptive list of diseases related to herbicide exposure
while serving in Vietnam in 38 U.S.C. § 1116(a)(1)(B) and
38 C.F.R. § 3.309(e). In October 2009, Mrs. Ruel submitted
a new Form 21-534 for DIC in light of this statutory
1 “J.A.” refers to the Joint Appendix filed by the par-
ties in this appeal.
4 RUEL v. WILKIE
change. The RO issued a decision in November 2010 grant-
ing Mrs. Ruel’s claim and assigning an effective date of Oc-
tober 20, 2009.
Mrs. Ruel filed a timely Notice of Disagreement with
the RO’s decision, claiming that she was entitled to an ef-
fective date of July 6, 1984 on her DIC claim because the
RO never adjudicated her July 1984 claim, and therefore,
the claim remained pending when she reapplied in 2009.
Generally, “the effective date of an award based on an orig-
inal claim, a claim reopened after final adjudication, or a
claim for increase. . . of compensation. . . shall be fixed in
accordance with the facts found, but shall not be earlier
than the date of receipt of application therefor.” 38 U.S.C.
§ 5110(a). The effective date will be the date of receipt of
the claim or the date the entitlement arose, whichever is
later. 38 C.F.R. § 3.816(d). 2
The RO issued a Statement of the Case, and Mrs. Ruel
appealed to the Board. The Board found that Mrs. Ruel’s
July 1984 application for death pension benefits consti-
tuted a claim for both death pension and DIC benefits.
Further, the Board found that the RO finally adjudicated
Mrs. Ruel’s “cause of death” claim in its unrelated, three-
sentence August 1984 burial benefits decision when it in-
formed Mrs. Ruel that “[t]he evidence does not show that
the veteran’s death was due to a service connected condi-
tion.” The Board also found that Mrs. Ruel had received
notification of her appellate rights in that decision on her
burial benefits claim, and when she chose not to appeal, the
decision became final. The Board further found that there
was no evidence of record dated between August 1984 and
October 2009 that could reasonably be construed as a claim
2 38 C.F.R. § 3.816(d)(2) defines the effective date for
claims pending on or after May 3, 1989 retroactively to the
later of the date the claim was initially filed or the death
occurred.
RUEL v. WILKIE 5
to reopen. Accordingly, the Board found that an effective
date prior to October 20, 2009 was not warranted.
Mrs. Ruel appealed the Board’s decision to the Veter-
ans Court. In a single-judge decision, the Veterans Court
affirmed the Board’s determination, finding that the Board
correctly found the RO’s statement that “[t]he evidence
does not show that the veteran’s death was due to a service
connected condition,” together with the included notice of
procedural and appellant rights, “an express denial of her
DIC claim.” Ruel v. Shulkin, No. 15-4075, Memorandum
Decision at 5 (Vet. App. June 1, 2017). The Veterans Court
characterized the Board’s decision as “an explicit denial of
the appellant’s 1984 DIC claim.” Id. at 4 (emphasis added).
The Veterans Court also rejected Appellant’s argument
under 38 C.F.R. § 3.103 (the VA’s notice regulation), noting
that “the law in 1984 did not require that the RO’s reason
for denying the claim be thoroughly explained, only that it
be included in the notice.” Id. at 5 (first citing Fournier v.
Peake, 23 Vet. App. 480, 486 (2010); then citing Natali v.
Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (finding that
the RO was not required to provide detailed statements of
reasons or bases prior to 1988 when Congress added the
statutory provision mandating that decisions denying ben-
efits include a statement of the reasons for the decision)).
Mrs. Ruel moved for reconsideration of the Veterans
Court decision by the single judge and by a panel; the first
was denied, but the second was granted. A two-judge ma-
jority agreed with the single-judge decision, while a dis-
senting judge opined that it was “difficult to accept that a
single sentence that does not name the claim that it alleg-
edly decided and contains only an unadorned factual find-
ing is sufficient to meet” the notice requirements of the law
in place in 1984. J.A. at 15.
6 RUEL v. WILKIE
Mrs. Ruel timely appealed to this court.
DISCUSSION
This court has jurisdiction to review a Veterans Court
decision “with respect to the validity of a decision of the
Court on a rule of law or of any statute or regulation . . . or
any interpretation thereof . . . that was relied on by the
Court in making the decision.” 38 U.S.C. § 7292(a). At is-
sue here is the interpretation of the VA’s 1984 notice regu-
lation, which read:
The claimant will be notified of any decision affect-
ing the payment of benefits or granting relief. No-
tice will include the reason for the decision and the
date it will be effectuated as well as the right to a
hearing subject to paragraph (c) of this section.
The notification will also advise the claimant of his
right to initiate an appeal by filing a Notice of Dis-
agreement which will entitle him to a Statement of
the case for his assistance in perfecting his appeal.
Further, the notice will advise him of the periods in
which an appeal must be initiated and perfected.
38 C.F.R. § 3.103(e) (1984). This regulation “mirrors con-
stitutional due process by requiring notice that a claim has
been denied.” Cogburn v. McDonald, 809 F.3d 1232, 1237
(Fed. Cir. 2016).
The Veterans Court and Board interpreted § 3.103(e)
as satisfied by “explicit denials” that do not mention or in
any other way identify the claim being denied. In defend-
ing this interpretation, the Government essentially argues
that if the VA makes a fact finding with regard to one
claim, that fact finding serves as notice to an applicant that
all other claims for which that fact finding would be rele-
vant are likewise explicitly decided, even without saying so.
We disagree. Instead, we hold, as a matter of law, that
to meet the notice requirements of § 3.103(e), an explicit
denial must state, or clearly identify in some other manner,
RUEL v. WILKIE 7
the claim(s) being denied. 3 The decision must also meet
the other requirements of § 3.103(e), including the reason
for the decision, the date effectuated, and notice of appel-
late rights.
Under this legal interpretation, it is clear that the VA’s
August 1984 burial benefits decision does not meet the no-
tice requirements for an explicit denial of Mrs. Ruel’s pend-
ing DIC claim. The sentence “[t]he evidence does not show
that the veteran’s death was due to a service connected con-
dition” does not, in any way, identify the DIC claim. The
sentences before and after the statement both refer to bur-
ial benefits, and the letter does not mention any other
pending benefits. As the Veterans Court panel’s dissenting
opinion articulated, “a single sentence that does not name
the claim that it allegedly decided and contains only an un-
adorned factual finding” is insufficient to meet the notice
requirements for an explicit denial of Mrs. Ruel’s DIC
claim under § 3.103.
Because the single sentence in the August 1984 letter,
as a purported explicit denial, cannot meet the notice re-
quirements of § 3.103, we reverse the Veterans Court deci-
sion. Since the Veterans Court and Board provide no other
basis for finding that Mrs. Ruel’s 1984 DIC claim was de-
nied, we conclude that Mrs. Ruel’s 1984 claim remained
pending as of 2010, when the RO granted Mrs. Ruel’s DIC
claim. Thus, the correct effective date of Mrs. Ruel’s DIC
3 Our holding is limited to explicit denials, since that
is what the Veterans Court determined occurred here.
Ruel, No. 15-4075, Memorandum Decision at 4 (character-
izing the Board’s decision as finding that the second sen-
tence in the August 1984 letter was “an explicit denial of
the appellant’s 1984 DIC claim,” and that therefore, the
“Board did not err in failing to apply the implicit denial
doctrine.” (emphasis added)).
8 RUEL v. WILKIE
claim is July 6, 1984, and we direct the VA to dispense her
benefits accordingly.
REVERSED
COSTS
Costs to Appellant.