Case: 19-1804 Document: 51 Page: 1 Filed: 05/12/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BOBBI BROWN,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1804
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2300, Judge Amanda L. Mere-
dith.
______________________
Decided: May 12, 2020
______________________
HAROLD HAMILTON HOFFMAN, III, Veterans Legal Ad-
vocacy Group, Arlington, VA, for claimant-appellant. Also
represented by MEGHAN GENTILE.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT
EDWARD KIRSCHMAN, JR.; Y. KEN LEE, BRYAN THOMPSON,
Case: 19-1804 Document: 51 Page: 2 Filed: 05/12/2020
2 BROWN v. WILKIE
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before O’MALLEY, BRYSON, and CHEN, Circuit Judges.
O’MALLEY, Circuit Judge.
Bobbi Brown claims entitlement to death benefits
based on her marriage to veteran Paul W. Brown. Because
the Browns divorced approximately seven months before
Mr. Brown passed away, the Department of Veterans Af-
fairs (“VA”) and the Board of Veterans’ Appeals (“the
Board”) both denied Ms. Brown’s claim. See Brown v.
Wilkie, No. 17-2300,
2018 WL 6036581, at *1 (Vet. App.
Nov. 19, 2018). Specifically, they concluded that the gov-
erning statute and regulation—38 U.S.C. § 101(3) and
38 C.F.R. § 3.50(b)—required a claimant to prove she and
the veteran were married as of the time of death in order
to qualify as a surviving spouse entitled to receive death
benefits.
Id. at *2–3. For different reasons, the Court of
Appeals for Veterans Claims (“Veterans Court”) affirmed
the denial of benefits to Ms. Brown.
Id. at *4–5.
On appeal, Ms. Brown presents three primary argu-
ments. First, she contends that that the VA, the Board,
and the Veterans Court misinterpreted 38 U.S.C.
§ 101(3)—the statute governing who is considered a “sur-
viving spouse” for purposes of eligibility for death benefits.
Appellant’s Br. 12. In Ms. Brown’s view, because her di-
vorce was the result of alleged domestic violence perpe-
trated by Mr. Brown, she qualifies as a surviving spouse
because the statute provides an exception in cases “where
there was a separation which was due to the misconduct of,
or procured by, the veteran without the fault of the spouse.”
Id. (quoting 38 U.S.C. § 101(3)). Second, she argues that
the Veterans Court erred by reviewing under a higher-
than-required standard the VA’s failure to obtain Mr.
Brown’s treatment records, which Ms. Brown considers
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BROWN v. WILKIE 3
relevant to her allegations of abuse.
Id. at 8–11. Finally,
Ms. Brown argues that, on appeal, the Veterans Court im-
permissibly made a factual finding in the first instance
that she was not a victim of domestic abuse.
Id. at 29–30.
For the reasons stated below, we affirm.
BACKGROUND
While the parties discuss many details regarding Ms.
Brown’s back and forth with the VA and the Board with
respect to her claim, there are only two pertinent facts of
note. First, by the time the VA rejected Ms. Brown’s claim
and that rejection was affirmed on appeal, it was undis-
puted that the Browns had divorced on October 4, 2013 and
that Mr. Brown did not pass away until May 4, 2014. Sec-
ond, before her appeal to the Veterans Court, Ms. Brown
did not claim or present evidence to support a claim that
the couple’s divorce was caused by domestic violence per-
petrated by the veteran. In affirming the denial of benefits,
the Veterans Court noted that Ms. Brown “ha[d] not
pointed to any factual predicate in the record for this newly
raised theory of entitlement—specifically, evidence that
she and the veteran divorced because of his abuse[.]”
Brown,
2018 WL 6036581, at *5. Accordingly, the court re-
fused to address “the remaining legal question—whether
VA’s regulatory definition of a surviving spouse is a per-
missible interpretation of Congress’ statutory definition.”
Id.
JURISDICTION
We first briefly address the government’s claim that we
lack jurisdiction over this appeal. Our jurisdiction over the
decisions of the Veterans Court is limited by statute. Bond
v. Shinseki,
659 F.3d 1362, 1366 (Fed. Cir. 2011). Under
38 U.S.C. § 7292(d)(2), we “may not review (A) a challenge
to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2). The government claims that the
Veterans Court declined to address the main legal
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4 BROWN v. WILKIE
contention Ms. Brown asserted in her appeal before that
court and which she asserts again here—that the domestic
abuse exception in 38 U.S.C. § 101(3) obviates the need to
prove an existing marriage as of the date of death. Instead,
the government asserts that the Veterans Court’s decision
was predicated on factual conclusions which we may not
review. We disagree.
We see at least one legal issue on which we may ground
jurisdiction: the assertion that the Veterans Court erred in
its analysis of the VA’s duty to assist in obtaining necessary
evidence pursuant to 38 U.S.C. § 5103A and the related im-
plementing regulations. While it is true that we may not
review the Veterans Court’s factual conclusion that the VA
satisfied its duty to assist, we may, and have, reviewed the
Veterans Court’s characterization of the nature of that
duty. See, e.g., Jones v. Wilkie,
918 F.3d 322 (Fed.
Cir. 2019). We, thus, proceed to consider this appeal.
DISCUSSION
Again, the parties discuss the scope of the VA’s duty to
assist in the context of a spouse’s claim for death benefits
at some length. They discuss the relevant governing stat-
utes and regulations and whether our prior decisions sup-
port their respective positions. And, they debate whether
the Veterans Court made a factual finding regarding
whether Ms. Brown was, in fact, the victim of domestic
abuse. As with our consideration of the parties’ respective
discussions of the factual and procedural background sur-
rounding Ms. Brown’s claim, we find little of relevance in
those discussions.
Contrary to Ms. Brown’s claim that we have never con-
sidered the issue, we have considered and decided the ulti-
mate legal issue underlying Ms. Brown’s claim—whether
or not a claimant seeking death benefits must demonstrate
that she was married to the veteran at the time of his death
where she claims the divorce was brought on by the vet-
eran’s physical abuse. In Haynes v. McDonald, 785 F.3d
Case: 19-1804 Document: 51 Page: 5 Filed: 05/12/2020
BROWN v. WILKIE 5
614, 616 (Fed. Cir. 2015), we answered that question in the
affirmative. Marriage at the time of death is a necessary
predicate for a spousal death benefit claim, regardless of
the reason for the divorce.
Id. (“Section 3.50(b) defines the
‘surviving spouse’ as someone ‘who was the spouse of the
veteran at the time of the veteran’s death,’ tracking the
statute[, 38 U.S.C. 101(3)]. No exception to this clear stat-
utory mandate and regulation is indicated.”). While that
conclusion may seem harsh, particularly in the context of
Ms. Brown’s assertions, it is the one we reached in Haynes
based on our interpretation of § 101(3) and its implement-
ing regulations.
Whether the VA adequately assisted Ms. Brown in
searching for records that would support her assertion that
she was abused, and whether the Veterans Court made an
improper fact-finding regarding that assertion, are ulti-
mately irrelevant to the disposition of this appeal. Under
Haynes, in order to prevail on her claim, Ms. Brown must
prove that she was married to Mr. Brown at the time of his
death. Ms. Brown concedes that her marriage to Mr.
Brown ended on October 4, 2013. Appellant’s Br. 4. In
these circumstances, we need not examine whether the
Veterans Court erred in applying the VA’s duty to assist.
As we have previously explained, “[w]e can . . . affirm ‘a
Veterans Court decision on the basis of harmless error
when application of the correct legal standard to undis-
puted facts establishes that the judgment of the Veterans
Court [is] correct[.]’” Menegassi v. Shinseki,
638 F.3d 1379,
1383 (Fed. Cir. 2011) (quoting Wood v. Peake,
520 F.3d
1345, 1348 (Fed. Cir. 2008)). Any error in the Veterans
Court’s conclusion that the VA met its duty to assist is
harmless because, under Haynes, Ms. Brown’s claim is le-
gally meritless. Accordingly, we affirm the Veterans
Court’s judgment.
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6 BROWN v. WILKIE
CONCLUSION
For the foregoing reasons, we affirm.
AFFIRMED
COSTS
No costs.
