Case: 21-1720 Document: 22 Page: 1 Filed: 12/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FAITH M. HIBBARD,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1720
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-80, Judge Michael P. Allen.
______________________
Decided: December 10, 2021
______________________
FAITH M. HIBBARD, Foley, AL, pro se.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, ERIC P. BRUSKIN, MARTIN F. HOCKEY, JR.
______________________
Before TARANTO, BRYSON, and STOLL, Circuit Judges.
Case: 21-1720 Document: 22 Page: 2 Filed: 12/10/2021
2 HIBBARD v. MCDONOUGH
PER CURIAM.
Faith M. Hibbard sought enhanced dependency and in-
demnity compensation under
38 U.S.C. § 1311(a)(2) after
the death of her husband, Ronald Hibbard, a veteran. The
relevant regional office of the Department of Veterans Af-
fairs (VA) denied her claim, and the Board of Veterans’ Ap-
peals affirmed. Ms. Hibbard appealed the Board’s decision
to the Court of Appeals for Veterans Claims (Veterans
Court), which affirmed the denial. Hibbard v. Wilkie, No.
20-0080,
2021 WL 96893 (Vet. App. Jan. 12, 2021); Appx.
1–5. Ms. Hibbard now appeals to us. We affirm.
I
Ronald Hibbard served in the United States Air Force
from May 1966 to March 1970 and in the Army from Au-
gust 1970 to November 1986. In November 1986, Mr. Hib-
bard filed a claim for disability benefits based on an
allegedly service-connected bilateral knee condition, but
the VA regional office denied the claim. Mr. Hibbard did
not appeal the denial. He died in July 2007. He had filed
no disability-benefits claim asserting a service-connected
condition other than the November 1986 claim that had
been denied.
Faith Hibbard, Mr. Hibbard’s surviving spouse, sought
dependency and indemnity compensation under
38 U.S.C.
§ 1310(a), at the rate specified in
38 U.S.C. § 1311(a)(1).
VA eventually awarded the benefit in 2016. In March
2017, Ms. Hibbard sought enhanced dependency and in-
demnity compensation under
38 U.S.C. § 1311(a)(2), which
provides increased benefits when the veteran, at the time
of death, “was in receipt of or was entitled to receive . . .
compensation for a service-connected disability that was
rated totally disabling for a continuous period of at least
eight years immediately preceding death.”
38 U.S.C.
§ 1311(a)(2);
38 C.F.R. § 3.10(c). The regional office denied
Ms. Hibbard’s claim, and she appealed to the Board.
Case: 21-1720 Document: 22 Page: 3 Filed: 12/10/2021
HIBBARD v. MCDONOUGH 3
The Board found that Mr. Hibbard was not receiving
compensation for any service-connected disability at the
time of his death. The Board also found that Mr. Hibbard
was not, at the time of his death, “entitled to receive” such
compensation. Appx. 13–16. For that conclusion, the
Board reasoned that the governing regulatory definition of
“was entitled to receive,”
38 C.F.R. § 3.10(f)(3), precluded
the “hypothetical entitlement” theory presented by Ms.
Hibbard, namely, that Mr. Hibbard would have received
benefits for a disability lasting the required period of time
had he applied for them. Appx. 15 (citing Nat’l Org. of Vet-
erans’ Advocates, Inc. v. Sec’y of Veterans Affairs,
476 F.3d
872, 876–77 (Fed. Cir. 2007)). Thus, the Board found that
the statutory requirement for enhanced benefits under
38
U.S.C. § 1311(a)(2) was not met, and it denied Ms. Hib-
bard’s claim for enhanced benefits.
Ms. Hibbard appealed to the Veterans Court. The Vet-
erans Court, conducting the same analysis of
38 U.S.C.
§ 1311(a)(2) and
38 C.F.R. § 3.10(f) as the Board, affirmed,
holding that the Board had correctly applied the law and
provided sufficient explanation for its decision. Hibbard,
2021 WL 96893, at *3.
Ms. Hibbard timely appealed to this court.
II
This court’s jurisdiction to review decisions of the Vet-
erans Court, defined by
38 U.S.C. § 7292, is limited. We
have jurisdiction to decide an appeal insofar as it presents
a challenge to a Veterans Court’s decision regarding a rule
of law, including a decision about the interpretation or va-
lidity of any statute or regulation.
Id. § 7292(a), (d)(1). We
lack jurisdiction to entertain a challenge to a factual deter-
mination or a challenge to the application of a law or regu-
lation to the facts of a particular case where, as here, the
appeal presents no constitutional issue. Id. § 7292(d)(2).
Case: 21-1720 Document: 22 Page: 4 Filed: 12/10/2021
4 HIBBARD v. MCDONOUGH
When a veteran dies “from a service-connected or com-
pensable disability,” the veteran’s “surviving spouse, chil-
dren, and parents” are eligible for “dependency and
indemnity compensation.”
38 U.S.C. § 1310(a). The basic
rate of dependency and indemnity compensation for a sur-
viving spouse is currently $1,154 per month.
38 U.S.C.
§ 1311(a)(1);
38 C.F.R. § 3.10(b). That benefit is increased
by a certain amount (currently $246 per month) “in the
case of the death of a veteran who at the time of death was
in receipt of or was entitled to receive . . . compensation for
a service-connected disability that was rated totally disa-
bling for a continuous period of at least eight years imme-
diately preceding death.”
38 U.S.C. § 1311(a)(2) (emphasis
added);
38 C.F.R. § 3.10(c).
An agency regulation,
38 C.F.R. § 3.10(f)(3), defines the
“was entitled to receive” standard of
38 U.S.C. § 1311(a)(2)
and
38 C.F.R. § 3.10(c). The regulation requires that the
veteran had “filed a claim for disability compensation dur-
ing his or her lifetime” and that any of three further condi-
tions be met: (1) the veteran would have received the
qualifying total-disability compensation “but for clear and
unmistakable error committed by VA in a decision on a
claim filed during the veteran's lifetime”; (2) additional ev-
idence in the form of “service records that existed at the
time of a prior VA decision but were not previously consid-
ered” in that decision, would permit reopening a claim de-
cided in the veteran’s life to award the requisite total-
disability compensation; or (3) the veteran, at the time of
death, had “a service-connected disability recognized that
was continuously rated totally disabling by VA for [the req-
uisite eight-year period], but was not receiving compensa-
tion” for it for one of a few enumerated reasons.
38 C.F.R.
§ 3.10(f)(3).
The Veterans Court found that Mr. Hibbard, during his
lifetime, had filed only the single denied claim seeking dis-
ability compensation in 1986 for the bilateral knee condi-
tion. Hibbard,
2021 WL 96893, at *3. Next, considering
Case: 21-1720 Document: 22 Page: 5 Filed: 12/10/2021
HIBBARD v. MCDONOUGH 5
the three possible qualifying circumstances described in
38
C.F.R. § 3.10(f)(3), the Veterans Court found that (1) Ms.
Hibbard had presented no evidence of clear or unmistaka-
ble error related to that denial, (2) she had not put forward
any additional service records that VA had not considered
that might establish a basis for the requisite total-disabil-
ity compensation, and (3) Mr. Hibbard did not have a ser-
vice-connected condition recognized by VA in a total-
disability rating before his death.
Id. Thus, the Veterans
Court concluded that Mr. Hibbard had not been “entitled
to receive” the requisite total-disability compensation and,
therefore, Ms. Hibbard was not entitled to the enhanced
benefits.
To the extent that Ms. Hibbard challenges the Veter-
ans Court’s determination that Mr. Hibbard did not fall
within the agency definition of “was entitled to receive,” we
lack jurisdiction to review that determination. 38 U.S.C.
7292(d)(2). But Ms. Hibbard also questions the validity of
38 C.F.R. § 3.10(f)(3) by contending that the language “was
entitled to receive” may encompass cases where, even
though the veteran dies without filing a claim, the surviv-
ing spouse files an “initial claim” seeking enhanced de-
pendency and indemnity compensation. See Hibbard
Informal Br. 9–10. The validity of a regulation is a legal
question within our jurisdiction.
In National Organization of Veterans’ Advocates, Inc.
v. Secretary of Veterans Affairs,
476 F.3d 872 (Fed. Cir.
2007) (NOVA), we considered the then-newly promulgated
definition of “was entitled to receive” in
38 C.F.R.
§ 3.10(f)(3).
Id. at 875–76. That definition differed criti-
cally from a previous regulation that had permitted the
surviving spouse to present new and material evidence of
a service-connected totally disabling condition to meet the
“was entitled to receive” requirement of
38 U.S.C.
§ 1311(a)(2).
Id. at 874–75 (citing Hix v. Gober,
225 F.3d
1377, 1380–81 (Fed. Cir. 2000)). We observed that the
phrase “entitled to receive” as it appears in 38 U.S.C.
Case: 21-1720 Document: 22 Page: 6 Filed: 12/10/2021
6 HIBBARD v. MCDONOUGH
§ 1311(a)(2) was ambiguous, and we held that VA’s new in-
terpretation was reasonable and hence lawful. Id. at 876
(citing Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc.,
467 U.S. 837 (1984)). We relied on the agency rationale of
aligning the exceptional “was entitled to receive” situations
with the few situations in which a veteran may obtain “ret-
roactive” compensation for a service-connected condition.
Id.
None of Ms. Hibbard’s arguments undermine our pre-
vious holding, which recognized the possibility of an as-ap-
plied challenge to
38 C.F.R. § 3.10(f)(3) if it were applied to
deny compensation in circumstances where the veteran
would have qualified for retroactive compensation had the
veteran filed a claim prior to death. NOVA,
476 F.3d at
876. Ms. Hibbard has not shown that Mr. Hibbard’s situa-
tion would have qualified him for retroactive compensation
for the required service-connected condition. Rather, Ms.
Hibbard suggests a much broader interpretation of “was
entitled to receive” similar to that of the agency’s previous
regulation, but we squarely held in NOVA that the agency
reasonably (and hence lawfully) departed from that earlier
regulation.
Id. And Ms. Hibbard’s other arguments based
on Henderson v. Shinseki,
562 U.S. 428 (2011), the defini-
tion of “initial claim” in
38 C.F.R. § 3.1(p)(1), and regula-
tions governing the interpretation of examination reports
at
38 C.F.R. § 4.2 fail to address the relevant scenario of
claims for enhanced dependency and indemnity compensa-
tion under
38 U.S.C. § 1311(a)(2). See Hibbard Informal
Br. 10–14.
III
For the foregoing reasons, we affirm the decision of the
Veterans Court.
The parties shall bear their own costs.
AFFIRMED
