Veteranclaims’s Blog

December 10, 2021

FedCir Application; 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 critically 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. § 1311(a)(2) was ambiguous, and we held that VA’s new interpretation 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 “retroactive” compensation for a service-connected condition.Id.;

Filed under: Uncategorized — veteranclaims @ 8:59 pm

NOTE: This disposition is nonprecedential.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 Division,
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: 1 Filed: 12/10/2021
2 HIBBARD v. MCDONOUGH
PER CURIAM.
Faith M. Hibbard sought enhanced dependency and indemnity
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 Affairs
(VA) denied her claim, and the Board of Veterans’ Appeals
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 August
1970 to November 1986. In November 1986, Mr. Hibbard
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 indemnity
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: 2 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 Veterans’
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. Hibbard’s
claim for enhanced benefits.
Ms. Hibbard appealed to the Veterans Court. The Veterans
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 Veterans
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 validity
of any statute or regulation. Id. § 7292(a), (d)(1). We
lack jurisdiction to entertain a challenge to a factual determination
or a challenge to the application of a law or regulation
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: 3 Filed: 12/10/2021
4 HIBBARD v. MCDONOUGH
When a veteran dies “from a service-connected or compensable
disability,” the veteran’s “surviving spouse, children,
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 surviving
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 disabling
for a continuous period of at least eight years immediately
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 during
his or her lifetime” and that any of three further conditions
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 evidence
in the form of “service records that existed at the
time of a prior VA decision but were not previously considered”
in that decision, would permit reopening a claim decided
in the veteran’s life to award the requisite totaldisability
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 requisite
eight-year period], but was not receiving compensation”
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 disability
compensation in 1986 for the bilateral knee condition.
Hibbard, 2021 WL 96893, at *3. Next, considering
Case: 21-1720 Document: 22 Page: 4 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 unmistakable
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-disability
compensation, and (3) Mr. Hibbard did not have a service-
connected condition recognized by VA in a totaldisability
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 Veterans
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 surviving
spouse files an “initial claim” seeking enhanced dependency
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 critically
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: 5 Filed: 12/10/2021
6 HIBBARD v. MCDONOUGH
§ 1311(a)(2) was ambiguous, and we held that VA’s new interpretation
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 “retroactive”
compensation for a service-connected condition.
Id.

None of Ms. Hibbard’s arguments undermine our previous
holding, which recognized the possibility of an as-applied
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

  1. Ms. Hibbard has not shown that Mr. Hibbard’s situation
    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 definition
    of “initial claim” in 38 C.F.R. § 3.1(p)(1), and regulations
    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 compensation
    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
    Case: 21-1720 Document: 22 Page: 6 Filed: 12/10/2021

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