Louann Wolfe v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LOUANN WOLFE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2317
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-519, Chief Judge Margaret C.
Bartley, Judge Coral Wong Pietsch, Judge Joseph L.
Falvey, Jr.
______________________
Decided: October 26, 2021
______________________
HAROLD HAMILTON H OFFMAN, III, Veterans Legal Ad-
vocacy Group, Arlington, VA, argued for claimant-appel-
lant. Also represented by MEGAN E ILEEN H OFFMAN.
ASHLEY AKERS , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F.
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WOLFE v. MCDONOUGH 2
HOCKEY , J R., J OSHUA E. K URLAND; J ONATHAN K RISCH , Y.
K EN L EE , Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Before P ROST , REYNA, and STOLL , Circuit Judges.
STOLL , Circuit Judge.
LouAnn Wolfe appeals the decision of the Court of Ap-
peals for Veterans Claims to dismiss her appeal from the
Chairman of the Board of Veterans’ Appeals’ denial of her
motion for reconsideration under 38 C.F.R. § 20.1000. Be-
cause Ms. Wolfe’s request for Board reconsideration does
not satisfy any of the bases for reconsideration, we affirm.
BACKGROUND
James Wolfe served in the U.S. Marine Corps from
1967 to 1969 and legally married Ms. Wolfe on February 4,
2010, after having lived together for ten years. In May
2010, Mr. Wolfe divorced another woman based on his be-
lief that he may have been previously married to her.
Mr. Wolfe passed away on August 9, 2010, and the Depart-
ment of Veterans Affairs (VA) informed his estate of the
potential benefits available to his eligible survivors. In Oc-
tober 2010, Ms. Wolfe submitted her claim for dependency
and indemnity compensation, death pension, and accrued
benefits. The VA denied Ms. Wolfe’s claim—citing
38 C.F.R. § 3.54(b)(2)—because “a spouse (whether with a
marriage certificate, or as common law) must have been
‘married’ to the veteran for one year or more prior to his
death in order to establish her entitlement to death bene-
fits.” J.A. 315. The VA determined that Mr. and
Ms. Wolfe’s marriage occurred only after his May 2010 di-
vorce, and therefore they were not married for the requisite
one year.
Ms. Wolfe appealed to the Board, arguing that
Mr. Wolfe was not, in fact, previously married and
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WOLFE v. MCDONOUGH 3
submitting an unsigned marriage license as evidence. In
May 2014, the Board determined that Ms. Wolfe was not
eligible for benefits as a surviving spouse because “the pro-
bative credible evidence of record reflects that the appel-
lant and the Veteran did not enter into a common law
marriage until his previous marriage was dissolved on May
10, 2010,” and thus “the couple was not married for at least
one year prior to the Veteran’s death.” J.A. 42. In June
2016, Ms. Wolfe sought reconsideration of the Board’s
May 2014 decision. Ms. Wolfe provided a copy of a Decem-
ber 2014 State of Oklahoma order vacating the divorce de-
cree from Mr. Wolfe’s purported previous marriage,
explaining that Mr. Wolfe was fraudulently induced into
believing that he was married. J.A. 130. Ms. Wolfe argued
that the Board’s decision was “based on fraudulent docu-
ments created by the fraudulent acts that were out of the
control of the veteran or the claimant.” J.A. 128–29.
The Board Chairman denied reconsideration because
38 C.F.R. § 20.10001 permits reconsideration in only three
circumstances: (a) upon allegation of obvious error of fact
or law; (b) upon discovery of new evidence in the form of
relevant records or reports of the service department con-
cerned; or (c) upon allegation that an allowance of benefits
by the Board has been materially influenced by false or
fraudulent evidence submitted by or on behalf of the appel-
lant. The Chairman explained that § 20.1000(a), (b), and
(c) were not satisfied because: (a) the Board weighed the
evidence in the record at the time; (b) the new evidence va-
cating the divorce did not consist of service department rec-
ords; and (c) there was no allowance of benefits in this case.
J.A 32–33.
1 38 C.F.R. § 20.1000 was effective until February
2019 when it was redesignated as § 20.1001. VA Claims
and Appeals Modernization, 84 Fed. Reg. 190, 191 (Jan. 18,
2019).
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WOLFE v. MCDONOUGH 4
Ms. Wolfe appealed the denial of reconsideration to the
Veterans Court, asserting among other things that the
Board Chairman did not have discretion to deny reconsid-
eration where a benefits denial was based on fraud.
J.A. 5–7. The Veterans Court concluded that because ben-
efits denied due to fraud are not specifically identified as
changed circumstances under § 20.1000, it did not have ju-
risdiction to review the denial of her motion for reconsider-
ation. Ms. Wolfe appeals the Veterans Court’s decision.
We have jurisdiction under 38 U.S.C. § 7292(a).
D ISCUSSION
We may “decide all relevant questions of law” in an ap-
peal from a decision of the Veterans Court. Anania
v. McDonough, 1 F.4th 1019, 1022 (Fed. Cir. 2021) (quoting
38 U.S.C. § 7292(d)(1)). We review the Veterans Court’s
legal determinations de novo. Id.
Ms. Wolfe raises two narrow issues on appeal. First,
she argues that § 20.1000(c) is an unlawful interpretation
of 38 U.S.C. § 7103, the statutory provision granting the
Board authority to reconsider a decision, because Congress
intended the VA to correct decisions based on fraud in all
instances, not just in those instances where benefits are
granted based on fraud. Section 7103, titled “Reconsidera-
tion; correction of obvious errors,” states:
(a) The decision of the Board determining a matter
under section 7102 of this title is final unless the
Chairman orders reconsideration of the decision in
accordance with subsection (b). Such an order may
be made on the Chairman’s initiative or upon mo-
tion of the claimant.
(b) (1) Upon the order of the Chairman for re-
consideration of the decision in a case, the
case shall be referred—
(A) in the case of a matter origi-
nally decided by a single member of
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WOLFE v. MCDONOUGH 5
the Board, to a panel of not less
than three members of the Board;
or
(B) in the case of a matter origi-
nally decided by a panel of mem-
bers of the Board, to an enlarged
panel of the Board.
(2) A panel referred to in paragraph
(1) may not include the member, or any
member of the panel, that made the deci-
sion subject to reconsideration.
(3) A panel reconsidering a case under this
subsection shall render its decision after
reviewing the entire record before the
Board. The decision of the panel shall be
made by a majority vote of the members of
the panel. The decision of the panel shall
constitute the final decision of the Board.
(c) The Board on its own motion may correct an ob-
vious error in the record, without regard to
whether there has been a motion or order for recon-
sideration.
Id.
We are not persuaded. Section 7103 does not mandate
the circumstances under which the Board must order re-
consideration. While the title includes the phrase “correc-
tion of obvious errors,” the body of the provision does not
delineate the meaning of “obvious errors.” As such, the
statute leaves a gap for the agency to fill, and the VA has
discretion to enumerate the circumstances under which the
Board will grant reconsideration. See Chevron U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984).
We are required under Chevron to “defer[] to the VA’s rea-
sonable interpretation of a statutory provision . . . when
the law leaves ‘a gap for an agency to fill.’” Gallegos
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WOLFE v. MCDONOUGH 6
v. Principi, 283 F.3d 1309, 1312 (Fed. Cir. 2002) (quoting
Chevron, 467 U.S. at 843).
Ms. Wolfe next asserts that even if the regulation is
statutory gap filling, the VA must not fill the gap in a way
that is arbitrary, capricious, an abuse of discretion or oth-
erwise not in accordance with the law, as it did here. In
particular, Ms. Wolfe asserts that Ҥ 20.1000(c) is contrary
to law because it is not pro-claimant.” J.A. 15; see Appel-
lant’s Br. 15, 18. We are not persuaded. As we have pre-
viously explained, “we must take care not to invalidate
otherwise reasonable agency regulations simply because
they do not provide for a pro-claimant outcome in every im-
aginable case.” Sears v. Principi, 349 F.3d 1326, 1331–32
(Fed. Cir. 2003). While section (c) is not in every circum-
stance pro-claimant, the regulation as a whole is generally
consistent with the pro-claimant policy, offering rehearing
for the benefit of the veteran in circumstances including
obvious factual error, which Ms. Wolfe did not preserve on
appeal.
Finally, Ms. Wolfe asserts that the Veterans Court mis-
interpreted § 20.1000 by holding that its list of reasons for
reconsideration in subsections (a), (b), and (c) are exhaus-
tive; she argues that the Board may allow reconsideration
in circumstances other than those so specified. We disa-
gree. The regulation is clear on its face—§ 20.1000 author-
izes reconsideration in only three specific
circumstances: (1) obvious legal or factual error; (2) new
and material service department records; or (3) false or
fraudulent evidence influencing an allowance of benefits.
CONCLUSION
For the reasons above, we affirm the decision of the
Veterans Court.
AFFIRMED
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WOLFE v. MCDONOUGH 7
COSTS
No costs.
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