Citation Nr: 1314618	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  10-01 996	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Reno, Nevada


THE ISSUE

Entitlement to additional compensation for a dependent spouse.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from March 1990 to June 1999.

This appeal to the Board of Veterans' Appeals (Board) arose from an adverse January 2009 rating decision in which the RO denied additional dependency compensation benefits on the basis that the Veteran's spouse could not be recognized as a dependent for VA purposes.  The Veteran filed a notice of disagreement (NOD) in February 2009.  A statement of the case (SOC) was issued in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010.

In August 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record.


FINDINGS OF FACT

1.  The Veteran and his spouse, P.O., were legally married in the State of California on September [redacted], 2008, and that marriage remains valid under the laws of the State of California.

2.  The Veteran and his spouse, P.O., are both of the same sex.

3.  P.O. cannot be recognized as a "spouse" for VA purposes.


CONCLUSION OF LAW

The claim for additional compensation for a dependent spouse is currently without legal merit.  38 U.S.C.A. §§ 101, 103, 1115 (West 2002 & Supp. 2012); 1 U.S.C.A § 7 (West 2002); 38 C.F.R. §§ 3.1, 3.4, 3.50, 3.205 (2012); 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The Board notes, at the outset, that the VCAA is not applicable to cases, such as this one, in which there are no issues of disputed fact and the law is determinative of the issue on appeal.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  See also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  As such, VA is not required to address efforts to comply with the VCAA.  Nonetheless, the Board has reviewed the case for purposes of ascertaining that the Veteran has had a fair opportunity to present arguments and evidence in support of his claim.  There is simply no reasonable possibility that any further notice or assistance to the Veteran would be capable of substantiating his claim.

Additionally, in August 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned.  In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

During the August 2012 hearing, the undersigned identified the issue on appeal both during a pre-hearing conference and during the hearing.  The undersigned and the Veteran discussed that it was clearly understood that the issue at hand involved an issue of law and required no further factual development.  The Veteran had the opportunity to present legal specific legal arguments.  He also realistically realized that his avenue of relief would be at the "next higher level."  Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's legal challenge to VA's definition of "spouse."  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient.  

The Board may proceed to adjudicate the claim on the basis of the current record.

II.  Analysis

The Veteran seeks dependency benefits for his spouse.  In general, VA may pay an additional amount of compensation for a dependent spouse.  38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2).  A recognized marriage for VA purposes is defined as one which is valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.  38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). 

The facts of this case are undisputed and may be briefly summarized.  The Veteran and his spouse, P.O., were legally married in the State of California on September [redacted], 2008, as documented by a License and Certificate of Marriage issued by the County of Santa Clara, San Jose California.  They are both of the male sex.  There has been no interruption of their marital status during the appeal period.  

For purposes of this opinion, the Board recognizes that the Veteran and P.O. have established a valid marriage under the laws of the State of California.  See Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2008) (upholding the constitutionality of California's Proposition 8 which revoked the state constitutional right of same-sex couples to marry, but also upholding a grandfather clause which recognized the validity of same-sex marriages performed before the effective date of November 5, 2008).

However, the recognition of the validity of marriage under 38 U.S.C.A. § 103(c) and 38 C.F.R. § 3.1(j) is limited by a specific statutory restriction involving same-sex marriages passed by Congress and signed into law by President William  Clinton.  In determining the meaning of any Act of Congress or of any ruling, regulations, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.  Defense of Marriage Act (DOMA), Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996), codified at 1 U.S.C. § 7 (1997). 

Consistent with DOMA, VA regulations define the term "spouse" as a person of the opposite sex who is a wife or husband.  38 U.S.C. § 101(31).  "Spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j).

The Veteran's spouse has been denied dependency benefits by the RO as a result of the definition of "marriage" under DOMA and the specific definition of "spouse" under 38 U.S.C. § 101(31) and 38 C.F.R. § 3.1(j).  The Veteran disagrees with this Federal and VA policy.

The Board notes, initially, that it derives its jurisdiction to decide issues of fact and law under 38 U.S.C.A. § 7104.  Pursuant to 38 U.S.C.A. § 7104(c), the Board is bound in its decisions by the regulations of the Department, instructions of the Secretary and the precedent opinions of its chief legal officer.  Quite simply, the Board is bound by the definition of a "spouse" being a person of the opposite sex who is a wife or husband under 38 U.S.C. § 101(31) and 38 C.F.R. § 3.1(j).

The Board further notes that it is without authority to grant benefits on the basis of equity, and cannot base its decision on its own particular view of the fairness of the application of a particular statute or regulation.  38 U.S.C.A. §§ 503, 7104; see Harvey v. Brown, 6 Vet. App. 416 (1994).  The Board can only determine whether the Veteran meets all of the requirements of the benefit being sought and, if he is not entitled to the benefit as specified by the statutes enacted by Congress and VA's implementing regulations, the benefit cannot be awarded regardless of the circumstances.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

The same-sex marriage issue at hand is the subject matter of much legal and political debate.  This very issue is the subject matter of oral arguments heard by the United States Supreme Court on March 27, 2013 in the case of the United States v. Windsor.  The Veteran is correct that, by letter dated February 17, 2002 addressed to the Speaker of the U.S. House of Representatives, the United States Attorney General declared the Executive branch position that it would no longer defend the constitutionality of Section 3 of DOMA based upon a legal conclusion that its application as it pertains to federal benefits, including VA benefits, violates the equal protection clause of the Fifth Amendment to the Constitution.

However, the Attorney General also specifically stated that the Executive Branch (which includes VA) would "continue to enforce 38 U.S.C. § 101(3) and 38 U.S.C. § 101(31), consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals those provisions or the judicial branch renders a definitive verdict against their constitutionality."  The Attorney General reiterated this position in oral arguments before the Supreme Court in United States v. Windsor.

Here, the Board is bound by specific statutory language in Section 3 of DOMA and 38 U.S.C. § 101(31) and 38 C.F.R. § 3.1(j) that, despite the validity of a valid marriage between the Veteran and his spouse under the laws of the State of California, the Veteran's same-sex spouse cannot be recognized as a spousal dependent for VA compensation purposes.  The claim must be denied, therefore, as a matter of law.

In so holding, the Board recognizes that there is a conflict among U.S. District Courts regarding the constitutionality of Section 3 of DOMA.  This very issue of the definition of spouse under 38 U.S.C. § 101(3) and 38 U.S.C. § 101(31) is currently pending before the United States Court of Appeals for Veterans Claims; however, those proceedings have been postponed pending a decision by the Supreme Court.  See Order in Cardona v. Shinseki, No. 11-3083, dated November 15, 2012.

The Board acknowledges that VA protects against sexual orientation discrimination in its civilian workplace environment which, to the Veteran, demonstrates recognition that the same-sex marriage rule is discriminatory and unconstitutional.  He also points to discrepancies in VA's policy allowing spousal benefits for marriages involving a transgender spouse.  Those VA policies, however they may be viewed as inconsistent with 38 U.S.C. § 101(3) and 38 U.S.C. § 101(31), simply have no legal effect in the context of VA compensation benefits for this factual scenario.

The Board has no authority on its own to declare Section 3 of DOMA, or 38 U.S.C. § 101(3) and 38 U.S.C. § 101(31), as unconstitutional, but rather must apply the law as currently in effect until it is either set aside either legislatively or judicially by a court of superior jurisdiction than the Board, if at all.  The relief sought by the Veteran is more appropriately available in the United States Court of Appeals for Veterans Claims, which has legal authority to rule on the constitutionality of VA law and regulations.  See 38 U.S.C.A. § 7261; Raugust v. Shinseki, 23 Vet. App. 475, 479 (2010) (recognizing its jurisdiction to consider constitutional challenges to statutes and regulations).  The Veteran recognizes this situation.  See Transcript of August 2012 Board hearing, p. 6.

As there is no current stay within the VA adjudication system on same-sex marriage issues, the Board finds that it would be most advantageous to the Veteran to issue a decision at this time and allow him the opportunity to challenge the constitutionality of 38 U.S.C. § 101(3) and 38 U.S.C. § 101(31) before a court of superior jurisdiction.



ORDER

The claim for additional compensation for a dependent spouse is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs