Veteranclaims’s Blog

May 14, 2022

Federal Circuit Application; dependency and indemnity compensation (DIC) benefits; a person who remarries is not a “surviving spouse.” 38 U.S.C. § 101(3); “remarriage after age 57 of [a] surviving spouse of a veteran shall not bar the furnishing of [DIC] benefits.” 38 U.S.C. § 103(d)(2)(B);

Filed under: Uncategorized — veteranclaims @ 5:31 pm

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit



Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-2883, Judge William S. Greenberg.

Decided: May 12, 2022

MAXWELL DOUGLAS KINMAN, Alexander, Webb, and
Kinman, Mason, OH, for claimant-appellant.
CATHARINE PARNELL, Civil Division, Commercial Litigation
Branch, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represented
Case: 22-1023 Document: 29 Page: 1 Filed: 05/12/2022
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.

Before MOORE, Chief Judge, DYK and PROST, Circuit
MOORE, Chief Judge.
Michelle R. Carson-Potter appeals a memorandum decision
of the United States Court of Appeals for Veterans
Claims, which affirmed a Board of Veterans’ Appeals decision
not to reinstate Mrs. Carson-Potter’s dependency and
indemnity compensation (DIC) benefits
. Carson-Potter v.
McDonough, No. 20-2883, 2021 WL 3822020 (Vet. App.
Aug. 27, 2021). Because the Veterans Court’s decision is
not contrary to Mrs. Carson-Potter’s asserted equal protection
rights under the Fifth Amendment, we affirm.
Mrs. Carson-Potter married Michael David Carson in
July 1985. Mr. Carson served in the Marine Corps from
July 1984 through April 1996. He died on June 19, 2018,
and had a 100 percent disability rating for at least the 10
years preceding his death. The Department of Veterans
Affairs (VA) then granted Mrs. Carson-Potter DIC benefits
as a surviving spouse. Mrs. Carson-Potter remarried at
age 49 on October 8, 2018. Consistent with 38 U.S.C.
§§ 101(3) and 103(d)(2)(B), the VA terminated her DIC benefits
because she remarried before age 57.
Mrs. Carson-Potter filed a notice of disagreement alleging
that the VA’s termination of benefits discriminated
against her based on age. The VA upheld its termination
of DIC benefits, reasoning that Mrs. Carson-Potter was 49
when she remarried and was thus ineligible for DIC benefits.
Case: 22-1023 Document: 29 Page: 2 Filed: 05/12/2022
Mrs. Carson-Potter appealed to the Board, which denied
the reinstatement of her DIC benefits. The Veterans
Court affirmed. Mrs. Carson-Potter appeals, arguing that
the statutory framework governing DIC benefits violates
her equal protection rights under the Fifth Amendment because
it discriminates based on age.1 We have jurisdiction
under 38 U.S.C. § 7292(c).
Under 38 U.S.C. § 7292(a), we may review a decision
by the Veterans Court with respect to “the validity of . . .
any statute or regulation . . . or any interpretation thereof
. . . that was relied on by the [Veterans] Court in making
the decision.” Except to the extent an appeal presents a
constitutional issue, we may not review the Veterans
Court’s application of law to the facts of a particular case.
38 U.S.C. § 7292(d)(2).
A veteran’s “surviving spouse” shall receive DIC benefits.
38 U.S.C. § 1311(a)(1). In general, a person who remarries
is not a “surviving spouse.” 38 U.S.C. § 101(3).
However, “remarriage after age 57 of [a] surviving spouse
of a veteran shall not bar the furnishing of [DIC] benefits.”
38 U.S.C. § 103(d)(2)(B).

The parties agree that because Mrs. Carson-Potter
challenges this statutory framework as unconstitutionally
discriminating based on age, rational-basis review applies.
Appellant’s Opening Br. 14–15; Respondent’s Br. 8–10.
Under rational-basis review, “a classification must be upheld
against [an] equal protection challenge if there is any
1 While there is no equal protection provision in the
Fifth Amendment, the Supreme Court’s “approach to Fifth
Amendment equal protection claims has always been precisely
the same as to equal protection claims under the
Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420
U.S. 636, 638 n.2 (1975).
Case: 22-1023 Document: 29 Page: 3 Filed: 05/12/2022
reasonably conceivable state of facts that could provide a
rational basis for the classification.” Almond Bros. Lumber
Co. v. United States, 721 F.3d 1320, 1328 (Fed. Cir. 2013)
(quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). The challenger
bears the burden of refuting every conceivable basis,
regardless of whether that basis is in the record. Id. We
will not set aside the government’s “distinctions among
classes of beneficiaries” to allocate funds “unless [it] is
clearly wrong” and “a display of arbitrary power,” “not an
exercise of judgment.” Bowen v. Owens, 476 U.S. 340, 345
(1986) (quoting Mathews v. De Castro, 429 U.S. 181, 185
Congress had a rational basis for allowing DIC benefits
to continue when a veteran’s spouse remarries after age 57.
First, as the government contends, older widows face
greater challenges to remaining in the work force and,
thus, are particularly dependent on DIC benefits to maintain
their standard of living. See Respondent’s Br. 13
(quoting H.R. Rep. No. 107-472, at 9 (2002)). Thus, the
specter of losing DIC benefits would disproportionately disincentivize
older widows from remarrying. See id. at 12
(quoting 149 Cong. Rec. 24,327 (2003)). Second, at the time
Congress added the after-57 exception, the DIC benefits
program was the last federal survivorship benefits program
to not allow older widows to remarry and retain survivorship
benefits. See H.R. Rep. No. 108-211, at 11–12
(2003). Finally, Congress drew the line at age 57 to balance
its limited resources and its objective of removing disincentives
to remarrying that disproportionately impact older
widows. Indeed, an earlier draft of the statute drew the
line at age 65 due to budgetary constraints, and committee
members acknowledged they preferred to draw the line at
55 but “could not do more at th[at] time.” See 148 Cong.
Rec. 8219 (2002); H.R. Rep. No. 107-472, at 19 (2002). Together,
these reasons provide a rational basis for the after-
57 exception to the termination of DIC benefits upon remarriage.
See, e.g., Mass. Bd. of Ret. v. Murgia, 427 U.S.
Case: 22-1023 Document: 29 Page: 4 Filed: 05/12/2022
307, 316 (1976) (rejecting argument that mandatory retirement
for police at 50 violates equal protection clause).
Mrs. Carson-Potter does not refute these bases. She
instead argues that there is no meaningful difference between
a widow who remarries after 57 and one who remarries
before. See Appellant’s Opening Br. 16–17. But it is
not for us to reweigh Congress’ choices. Congress had a
rational basis for the line it drew to strike a balance between
providing benefits and controlling its budget. See
Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (“Congress
should have discretion in deciding how to expend necessarily
limited resources.”). Even if “the line drawn by Congress
[is] imperfect, it is nevertheless the rule that in a case
like this ‘perfection is by no means required.’” Vance v.
Bradley, 440 U.S. 93, 108 (1979) (quoting Phillips Chem.
Co. v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960)) (holding
that mandatory retirement at 60 did not violate equal protection).
Congress had a rational basis for allowing DIC
benefits to continue when a surviving spouse remarries after
age 57 to the exclusion of others, thus we affirm.
The parties shall bear their own costs.
Case: 22-1023 Document: 29 Page: 5 Filed: 05/12/2022

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