Wesley Dana Plante v. Robert A. McDonald, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WESLEY DANA PLANTE,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-2596
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-1940, Judge Margaret C.
Bartley.
______________________
Decided: December 15, 2016
______________________
WESLEY D ANA P LANTE , East Providence, RI, pro se.
D AVID MICHAEL K ERR , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, R OBERT E. K IRSCHMAN, J R.,
SCOTT D. AUSTIN; CHRISTINA L YNN G REGG, BRIAN D.
G RIFFIN, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.

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PLANTE v. MCDONALD 2
______________________
Before N EWMAN, MAYER , and L OURIE, Circuit Judges.
N EWMAN, Circuit Judge.
Appellant Wesley D. Plante seeks review of the deci-
sion of the Court of Appeals for Veterans Claims (CAVC),
denying his request for death pension, dependency and
indemnity compensation (DIC), and/or other accrued
benefits.1 We affirm the court’s decision.
Appellant is the grandson of Sarah Mae Plante (“Mrs.
Plante”), who is the mother of the deceased Veteran, Dana
G. Plante. Appellant is the nephew of the Veteran. The
Veteran entered active duty with the United States Army
in 1959, and died in 1959 during service. Mrs. Plante was
granted dependency and indemnity compensation. The
Appellant states that he has supported his grandmother
since 1977 and was her caregiver until her death in 2010.
He also states that he is disabled, he is (or was) a ward of
the State of Rhode Island, and that he qualifies under
state law as Mrs. Plante’s stepson.
The Board of Veterans Appeals held that “[t]he appel-
lant is the Veteran’s nephew and, thus, is not the surviv-
ing spouse of the Veteran nor a dependent parent or child,
as defined for VA purposes.” BVA Op. 2. The Board
stated that “[e]ven if the Board were to accept the appel-
lant’s argument that he should be considered the stepson
of the Veteran’s mother (which it does not), he would still
not be considered the dependent parent, child, or spouse
of the Veteran for purposes of survivor benefits.” BVA
Op. 4. The CAVC affirmed. The court also held that the
Appellant’s application for certain benefits to which he
may have been entitled, such as final illness and funeral
1 Wesley Dana Plante v Robert A. McDonald, No.
15-1940 (Vet. App. June 21, 2016).

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PLANTE v. MCDONALD 3
expenses for Mrs. Plante, was untimely because this claim
was filed in 2013, not within the statutory period of one
year of Mrs. Plante’s death in 2010.
D ISCUSSION
The government argues first that the Federal Circuit
lacks jurisdiction of this appeal because “whether an
individual ‘is the dependent of a veteran is a question of
fact . . . . and does not involve the validity or interpreta-
tion of a statute or regulation.’” Gov’t Br. 5. However, no
facts are in dispute as to the Appellant’s relationship to
the Veteran (his uncle) or to the Veteran’s mother (his
grandmother). Whether a person is a dependent as
defined by statute is a question of law or interpretation of
law, and is properly before us.
It is not disputed that Wesley Plante is not a “surviv-
ing spouse, child, or parent” of a deceased veteran, 38
U.S.C. § 101(14). Wesley Plante argues that he should
receive the dependency benefits that had been paid to
Mrs. Plante because he financially supported her from
1977 to her death in 2010, because she designated him as
“replacement” for her benefits, and because he is her
stepson under state law.
DIC and Death Pension
By statute, dependency and indemnity compensation
is payable to the “veteran’s surviving spouse, children,
and parents.” 38 U.S.C. § 1310; see also 38 U.S.C. §
101(14). Also by statute, a death pension is payable to the
surviving spouse and children of a deceased veteran. 38
U.S.C. §§ 1541(a), 1542. “Surviving spouse,” “child,” and
“parent” are defined by 38 U.S.C. §§ 101, 102, and 103.
Wesley Plante does not meet these statutory definitions,
even were he deemed to be a stepson of the Veteran’s
mother. On careful review of the statutory framework, we
discern no basis for an interpretation that would provide
such payments to the Appellant. The statutes and regu-

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PLANTE v. MCDONALD 4
lations are unambiguous that DIC and death pensions are
limited to the explicitly defined classes. See Valiao v.
Principi, 17 Vet. App. 229, 231 (2003) (denying DIC
benefits to veteran’s sibling). “No exception to this clear
statutory mandate and regulation is indicated.” Haynes
v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015), cert.
denied, 136 S. Ct. 156, 193 (2015). Such a plan would
require legislative action; it is not available as a statutory
interpretation.
Accrued Benefits
By statute, accrued benefits may be paid to a veter-
an’s spouse, children or dependent parents, but may also
be paid “as may be necessary to reimburse the person who
bore the expense of last sickness and burial,” of the Vet-
eran or a Veteran’s beneficiary. 38 U.S.C. § 5121(a). The
Board did not consider Wesley Plante’s application as
including this class of benefits, and the CAVC determined
that this was Board error. However, the CAVC held that
the error did not change the result because Wesley
Plante’s application was filed too late. 38 U.S.C. § 5121(c)
requires submission of an application for accrued benefits
“within one year after the date of death.” Wesley Plante’s
application was filed in 2013. The CAVC held that this
application was untimely, insofar as it could be deemed to
encompass these expenses.
Wesley Plante argues that the Board’s error was not
harmless. However, he presents no argument for possible
equitable tolling, and we perceive none. The CAVC
applied the correct law, in holding the claim to be time-
barred.
On review of the issues and arguments, the decision of
the Court of Appeals for Veterans Claims is
AFFIRMED.
No costs.

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