Kennedy v. McDonough

33 F.4th 1339

Florence KENNEDY, Claimant-Appellant

v.Denis MCDONOUGH, Secretary of Veterans Affairs, Respondent-Appellee

2021-1798

United States Court of Appeals, Federal Circuit.

Decided: May 11, 2022

Amy F. Odom, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also represented by Barbara J. Cook, Zachary Stolz ; Megan Brittney Hall, Disabled American Veterans, Cold Spring, KY.

Galina I. Fomenkova, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Brian M. Boynton, Eric P. Bruskin, Martin F. Hockey, Jr. ; Y. Ken Lee, Derek Scadden, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Newman, Stoll, and Cunningham, Circuit Judges.

Dissenting opinion filed by Circuit Judge Newman.

Stoll, Circuit Judge.

Florence Kennedy appeals the judgment of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans' Appeals' decision denying her request for an earlier effective date for Dependency and Indemnity Compensation (DIC) under 38 C.F.R. § 3.114. Because Mrs. Kennedy forfeited her regulatory interpretation argument, we affirm.

BACKGROUND

Keith Kennedy, Mrs. Kennedy's late husband, served on active duty in the United States Army for nearly seven years in the 1970s. During service, Mr. Kennedy fell from a lawn mower and injured his knee. Although no disability was noted at the time of discharge, Mr. Kennedy applied for, and received, service connection for his knee injury in 2000. Two years later, Mr. Kennedy applied for and received service connection for depression secondary to his knee injury.

In 2005, Mr. Kennedy was diagnosed with melanoma. The cancer rapidly metastasized, and Mr. Kennedy passed away the same year. Mr. Kennedy's death certificate listed "melanoma, metastatic" as the immediate cause of death and listed "other significant conditions contributing to death but not resulting in the underlying cause given," including "diabetes mellitus, type 2," "hypertension," and "depression disorder." J.A. 27.

Mrs. Kennedy filed for DIC as Mr. Kennedy's surviving spouse under 38 C.F.R. § 3.702. Between 2005 and 2010, Mrs. Kennedy filed for, and was denied, DIC three times. Each time, the VA denied service connection for Mr. Kennedy's cause of death because "there [was] no evidence to show that the veteran's death was related to military service." J.A. 44; see also J.A. 37; J.A. 42.

In 2013, the Director of the Pension and Fiduciary Service of the Department of Veterans Affairs issued Fast Letter 13-04, titled "Simplified Processing of Dependency and Indemnity Compensation (DIC) Claims." J.A. 47–50. Fast Letter 13-04, addressed to "All Pension Management Center and Veterans Service Center Personnel," "rescinds or clarifies prior guidance on the processing of DIC claims." J.A. 47. It instructs personnel to "take immediate action" on DIC claims "where the cause of death listed on the death certificate matches one or more of the deceased Veteran's service-connected disabilities" by granting "service connection for the cause of death when the death certificate shows that the service-connected disability is [a] ... contributory cause of death." J.A. 48. Fast Letter 13-04 streamlined the processing of DIC claims by allowing adjudicators to presume that a service-connected disability "contributed substantially and materially to the Veteran's death" without requiring further development of facts regarding "the causal connection between the Veteran's service-connected disability and the cause of death." Id.

Mrs. Kennedy then filed her last, successful application for DIC in July 2015. The VA granted Mrs. Kennedy DIC with an effective date of July 7, 2015—the date her final claim was received—because the service-connected illness, depression, appeared on Mr. Kennedy's death certificate. J.A. 51–52, 55.

Mrs. Kennedy appealed this effective date to the Board of Veterans' Appeals, arguing that her claim was "granted based on a change in VA regulatory guidance" in the form of Fast Letter 13-04, and that "a retroactive effective date for the award of DIC" was available under 38 C.F.R. § 3.114(a). J.A. 59. That regulation provides for retroactive effective dates for certain benefits awarded following a "[c]hange of law or Department of Veterans Affairs issue." § 3.114(a). Specifically, it provides for an additional "period of 1 year prior to the date" on which the claim for benefits was received if DIC was awarded or increased because of a "liberalizing law" or "liberalizing VA issue approved by the Secretary or by the Secretary's direction." Id. The Board denied Mrs. Kennedy's appeal, explaining that because Fast Letter 13-04 was a "change[ ] to VA procedural manuals and guidance provisions," it could not be considered a liberalizing law or liberalizing VA issue under § 3.114. J.A. 62.

Before the Veterans Court, Mrs. Kennedy argued that she should be granted a retroactive year of DIC because Fast Letter 13-04 was a "liberalizing VA issue approved by the Secretary or by the Secretary's direction" under § 3.114. The Veterans Court affirmed the Board's decision, holding that "VA Fast Letter 13-04 does not constitute a ... ‘VA issue approved by the Secretary or by the Secretary's direction,’ " J.A. 14, because it "is not binding on the Board" and therefore "does not bind the Agency," J.A. 13.

Mrs. Kennedy appeals. We have jurisdiction under 38 U.S.C. § 7292.

DISCUSSION

On appeal, Mrs. Kennedy challenges the Veterans Court's definition of a "VA issue" under 38 C.F.R. § 3.114 as overly narrow and asserts that the Veterans Court erred as a matter of law in determining that Fast Letter 13-04 was not "approved by the Secretary or by the Secretary's direction." We review questions of law, including the Veterans Court's interpretation of regulations, de novo. Breland v. McDonough , 22 F.4th 1347, 1350 (Fed. Cir. 2022). We cannot review challenges to underlying factual determinations or application of law to facts, except for constitutional challenges. 38 U.S.C. § 7292(d)(2). Because we conclude that Mrs. Kennedy forfeited her argument that the Veterans Court erred in its interpretation of "VA issue," we affirm the Veterans Court decision and need not reach the other issues that Mrs. Kennedy raised.

Mrs. Kennedy seeks a retroactive period of one year under § 3.114(a), which requires that DIC was awarded pursuant to a liberalizing (i) "VA issue" that is (ii) "approved by the Secretary or by the Secretary's direction." Section 3.114(a) recites in relevant part:

(a) Effective date of award. Where ... dependency and indemnity compensation ... is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found ....

(3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.

Before the Veterans Court, Mrs. Kennedy asserted that a "VA issue" is "a directive from or approved by the Secretary and is binding on [the] VA. " J.A. 79 (emphasis added). The Veterans Court agreed with, adopted, and applied Mrs. Kennedy's definition. J.A. 9. Now, on appeal, Mrs. Kennedy contends that the definition is too restrictive. Specifically, she accuses the Veterans Court of "adopt[ing] its own interpretation that requires the directive to be ‘binding on [the] VA’ " and "fail[ing] to defer to the [Secretary's] reasonable interpretation" that did not require that a "VA issue" be "binding on [the] VA." Appellant's Br. 10–11.

We have held that an appellant who "urged upon the Veterans Court" a position forfeits any argument on appeal that the Veterans Court "committed reversible error" when the court applied that position. Logan v. Principi , 71 F. App'x 836, 838–39 (Fed. Cir. 2003) ; see also Forshey v. Principi , 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Here, the Veterans Court adopted the definition Mrs. Kennedy asked it to adopt. She now argues that the Veterans Court erred in adopting that definition. Because Mrs. Kennedy advocated for the very definition of "VA issue" that the Veterans Court adopted and applied, we conclude that Mrs. Kennedy forfeited her argument on appeal that the Veterans Court should have deferred to the Secretary's proposed definition of "VA issue."

At oral argument, counsel for Mrs. Kennedy asserted that she should not be estopped from arguing against the definition that she offered to the Veterans Court because she "did not argue that [a VA issue] has to be binding on the agency as a whole." Oral Arg. at 14:34–14:52, https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21-1798_03102022.mp3; see also Appellant's Reply Br. 15 ("Before the Veterans Court, [Mrs. Kennedy] argued that a ‘VA issue’ must be binding on [the] VA ... but nowhere in her pleadings did she suggest that it must be binding on all of [the] VA, as the Veterans Court held."). Rather, Mrs. Kennedy contends that she asserted that a "VA issue" need only be binding on the "frontline adjudicators," not the Board. Appellant's Reply Br. 15–16. We are not convinced.

Mrs. Kennedy repeatedly asserted before the Veterans Court that a "VA issue" must be "binding on [the] VA," including the Board. J.A. 79, J.A. 83 ("Fast Letter 13-04 is binding on the Board."); J.A. 87 ("[T]he Board was bound by [Fast Letter 13-04]."). The definition that Mrs. Kennedy advocated to the Veterans Court did not limit the proposed requirement of being "binding on [the] VA" to binding only the claim adjudicators as she now argues. Indeed, Mrs. Kennedy expressly argued that because "Fast Letter 13-04 [was] binding on the Board ," it was a "VA issue." J.A. 83 (emphasis added). Accordingly, we...