Marlesa D. Lynch and Cynthia M. Martinez v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-0541

MARLESA D. LYNCH, APPELLANT,

AND

CYNTHIA M. MARTINEZ, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued August 21, 2018 Decided October 23, 2018)

Daniel G. Krasnegor, of Charlottesville, Virginia, with whom Erin E. Ralston, of Glen

Allen, Virginia; and Krystle D. Waldron, of Richmond, Virginia, were on the brief, for the

appellants.

Angela-Marie C. Green, with whom Meghan Flanz, Interim General Counsel; Mary Ann

Flynn, Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, all of Washington, D.C.,

were on the brief, for the appellee.1

Before SCHOELEN, ALLEN, and MEREDITH, Judges.

SCHOELEN, Judge, filed the opinion of the Court. ALLEN, Judge, filed an opinion

concurring in part and dissenting in part.

SCHOELEN, Judge: The appellants, Marlesa D. Lynch and Cynthia M. Martinez, appeal

through counsel two January 29, 2016, Board of Veterans' Appeals (Board) decisions that denied

them entitlement to recognition as the children of deceased veteran David Philpot for eligibility

2

for dependency and indemnity compensation (DIC) benefits. Record (R.) at 2-18. On

1

Meghan Flanz was Interim General Counsel for the appellee when his initial brief was submitted to the

Court, but James M. Byrne has since been appointed General Counsel and was on the supplemental brief for the

appellee.

2

Although docketed separately, the appellants' claims were consolidated under the instant docket number in

the interest of judicial economy by an order of the Clerk of the Court (Clerk) granting the Secretary's unopposed

motion to consolidate. See U.S. VET. APP. R. 45(g). The Clerk issued the order on June 17, 2016. Lynch v. McDonald,

February 28, 2018, the Court issued a single-judge decision affirming the January 2016 Board

decisions. See Lynch v. Shulkin, No. 16-0541, 2018 WL 1081410 (U.S. Vet. App. Feb. 28, 2018)

(mem. dec.). On March 21, 2018, the appellants filed a motion for single-judge reconsideration or,

in the alternative, panel review. This matter was submitted for panel consideration and oral

argument was held. The Court will withdraw the February 28, 2018, memorandum decision and

issue this decision in its stead. Because the record did not reasonably raise the theory that a pending

claim for DIC was filed on behalf of the appellants while they were considered "children," the

Court will affirm the Board's January 2016 decisions.

I. BACKGROUND

The appellants are sisters who allege that they are the natural children of veteran David

Philpot.3 See R. at 225, 254. Mr. Philpot was killed on February 28, 1969, while he was on active

duty. See R. at 329, 332. At the time of his death, the appellants were minor children. See R. at

237, 242.

In March 1969, 1 month after the veteran's death, the Office of Servicemen's Group Life

Insurance4 (SGLI) contacted the veteran's parents to inform them that the veteran was insured

under the SGLI program, but had not designated a beneficiary for his policy. R. at 49; see also

R. at 47 (veteran's SGLI election form with no beneficiary designated). Because the veteran's

parents did not identify any other beneficiaries, they were awarded his SGLI benefits, a lump sum

of $10,000. See R. at 293 (footnotes in DD Form 1300 identifying the veteran's father as "[a]dult

next of kin" and "[b]eneficiary for gratuity pay in event there is no surviving wife or child").

In April 1969, 2 months after the veteran's death, VA received the veteran's parents'

application for DIC on VA Form 21-535, APPLICATION FOR DEPENDENCY AND

INDEMNITY COMPENSATION BY PARENT(S). R. at 340-42. In area 21, which asked about

the veteran's surviving dependents, the veteran's parents checked the box indicating that the veteran

U.S. Vet. App. No. 16-0541 (unpublished Clerk's order, June 17, 2016) (consolidating case with Martinez v.

McDonald, U.S. Vet. App. No. 16-0542).

3

Mr. Philpot never married. See R. at 288. The Secretary asserts that paternity has not been established.

Secretary's Brief (Br.) at 7 n.1; see 38 U.S.C. § 101(4)(A)(iii). The appellants dispute that contention. See, e.g.,

Appellants' Supplemental (Suppl.) Br. at 5-6. Because the Court holds that the Board did not err in determining, on

other grounds, that the appellants were not eligible claimants, see part III.B below, it need not reach the question of

paternity.

4

This is now Servicemembers' Group Life Insurance.

2

had neither a widow nor any children under 18 years of age. R. at 340. They left blank area 22,

which requested the names and address of any surviving children. Id. The following month, the

veteran's parents' DIC claim was denied because their income exceeded the allowable threshold;

they did not appeal that decision. R. at 44, 282.

In August 2010, the appellants filed claims seeking DIC. R. at 225-32 (Martinez claim),

254-61 (Lynch claim). The appellants conceded that the veteran's parents "did not notify the VA

that the deceased veteran had two dependent children" in connection with either the parents' DIC

application or their claim for SGLI benefits. R. at 184. Rather, the appellants asserted that the

veteran's parents – their grandparents – fraudulently and intentionally failed to disclose that the

veteran had children so that they could claim any available benefits for themselves. R. at 118, 120.

In November 2015, the appellants testified before a Board member that the veteran's parents had

the opportunity to inform VA that the veteran had dependent children but declined to do so, even

though the appellants were living with the veteran's parents when the veteran's parents received

SGLI benefits and filed the DIC claim. R. at 52-55.

In the decisions on appeal, the Board determined that the appellants first filed claims

seeking DIC in 2010, when they no longer met the statutory and regulatory definitions of

"children" for such purposes. R. at 5, 15. The Board found, therefore, that the appellants were not

eligible claimants, and denied their claims as a matter of law. R. at 5-6, 15-16. The Board further

found that, because the law was dispositive in these matters, any duty-to-assist errors would be

harmless. R. at 4, 14.

II. THE PARTIES' ARGUMENTS

The appellants do not dispute that they first filed claims seeking DIC in 2010, by which

time neither appellant met the statutory and regulatory definitions of "child" for VA purposes. See

Appellants' Br. at 5 (stating that the appellants did not learn about the availability of DIC until they

were adults); see also R. at 118 (Martinez VA Form 9), 120 (Lynch VA Form 9); 38 U.S.C.

§ 101(4)(A); 38 C.F.R. § 3.57 (2018). Nonetheless, they argue that the Board prematurely

determined that their claims must be denied as a matter of law without addressing pertinent and

unresolved matters. See, e.g., Appellants' Br. at 14. Specifically, they assert that the record

reasonably raised theories that the 1969 application filed by the veteran's parents was either an

incomplete or defective claim, which has remained pending since 1969 because VA failed to notify

3

the applicants of the evidence necessary to complete their application, see id. at 8-12; 38 C.F.R.

§ 3.109(a)(1) (1969), or an informal claim filed by the veteran's parents on behalf of the appellants,

which has remained pending because VA never forwarded the appropriate official application form

to the veteran's parents. See Appellants' Br. at 12-14; 38 C.F.R. § 3.155(a) (1969). They assert that,

under these theories, their actual dates of claim could be April 1969, when they were still

"children" as defined by 38 U.S.C. § 101(4)(A). Appellants' Br. at 11-14. Because they could be

entitled to past due DIC benefits for the period when they were eligible "children," they contend,

the Board's statement of reasons or bases for its decision was inadequate and the Board's premature

denial was prejudicial error. Id. at 6-8, 14. They further assert that, regardless of whether the record

reasonably raised these theories of entitlement, VA's duty to assist nonetheless requires that the

matter be remanded for additional development to ensure a complete record. Id. at 15-17.

The Secretary agrees that, if an unadjudicated claim was filed on the appellants' behalf in

April 1969, i.e., within 1 year of the veteran's death, the appellants would, today, be eligible

claimants. See Secretary's Suppl. Br. at 2-3. However, he disputes the appellants' contention that

the record below reasonably raised theories under which the April 1969 claim could or should be

construed as a pending claim filed on the appellants' behalf, and contends that the Board was not

required to discuss those theories. Secretary's Br. at 9. Regarding the appellants' assertion that VA

failed to satisfy its duty to assist, the Secretary argues that, "any such error is not prejudicial,

because it would result in no additional benefit flowing to the [a]ppellants in this case." Id. at 19

(citing 38 U.S.C. § 7261(b)(2)).

III. ANALYSIS

This case requires the Court to resolve two primary questions. First, the Court must

determine whether the appellants, who are no longer "children" as defined by 38 U.S.C.

§ 101(4)(A), are nonetheless potentially eligible DIC claimants as the purported children of

deceased veteran David Philpot. The parties apparently agree that VA should apply 38 C.F.R.

§ 3.400(c)(4) (2018) to determine the appropriate date on which to assess whether a person

qualifies as a "child" for the purpose of determining eligibility for DIC. See Appellants' Suppl. Br.

at 2-4; Secretary's Suppl. Br. at 1-3. However, the Court has not yet considered this issue in a

precedential opinion. If the appellants cannot under any legal or factual theory show that they were

4

"children" on the appropriate date, they are not eligible claimants, and the Court need not consider

the matter further. See 38 U.S.C. §§ 1310, 1313.

If the Court determines that the appellants are potentially eligible claimants because they

could have satisfied the definition of "child," the Court must next determine whether the record in

this case reasonably raised the theory that there is a pending claim filed on the appellants' behalf

while they were still "children."

A. Appropriate Date To Assess Whether a Person Qualifies as a "Child"

The Court reviews VA's interpretation of statutes and regulations de novo. See Lane v.

Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) ("[I]nterpretation of a statute or regulation is a

question of law. . . ."); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (stating that the Court

reviews "questions of law de novo without any deference to the [Board's] conclusions of law").

The Court must first analyze the language of the authorizing statute and determine "whether

Congress has directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984). If, employing the traditional tools of statutory

construction, the Court finds that the "intent of Congress is clear, that is the end of the matter; for

the [C]ourt, as well as the agency, must give effect to the unambiguously expressed intent of

Congress." Id. at 842-43. On the other hand, if the Court concludes that "the statute is silent or

ambiguous with respect to the specific issue, the question for the court is whether the agency's

answer is based on a permissible construction of the statute." Id. at 843. Here, as we will explain,

the Agency's answer is contained in regulations.

DIC is payable to eligible beneficiaries as defined by 38 U.S.C. § 1310(a). When there is

no surviving spouse, VA death benefits may be paid to eligible children. 38 U.S.C. § 1313(a). For

purposes of determining eligibility for this benefit, a "child" must be unmarried and must (1) be

under the age of 18, (2) have become permanently incapable of self-support before reaching the

age of 18, or (3) be between the ages of 18 and 23 and pursuing a course of instruction at an

approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a)(1) (2018); see Sucic

v. Shulkin, 29 Vet.App. 121, 126 (2017) (per curiam order) (holding that the definition of "child"

in 38 U.S.C. § 101(4)(A) controls in determining benefit eligibility); Burris v. Principi,

15 Vet.App. 348, 352-53 (2001). However, the statutory provision, 38 U.S.C. § 1313, is silent as

to when to evaluate whether a claimant is a "child," that is, whether VA should look to the date the

application for DIC benefits is filed, the date that claim is initially adjudicated, or some other date.

5

Because there is a gap in the statute, the Court must now turn to step two of the Chevron

analysis, "whether the agency's answer is based on a permissible construction of the statute."

Chevron, 467 U.S. at 843. Here, the Secretary argues that the effective-date provisions of 38 C.F.R.

§ 3.400(c)(4) fill that gap. Secretary's Suppl. Br. at 1-2. Under that regulatory provision, the

effective date for DIC awarded to "children" is the "[f]irst day of the month in which entitlement

arose if [the] claim is received within 1 year after the date of entitlement; otherwise, date of receipt

of claim." 38 C.F.R. § 3.400(c)(4). Therefore, the Secretary explains, when a claim is received

within 1 year after the date of entitlement, for the purpose of establishing eligibility for DIC

benefits, VA should look to the date entitlement arose as the appropriate date upon which to assess

whether a claimant is a "child."5 See Secretary's Suppl. Br. at 2. Otherwise, the "child" assessment

date would be the date the claim was received. See id.

In other words, when a claim is filed within 1 year of the date entitlement arose, 38 C.F.R.

§ 3.400(c)(4) provides a limited exception to the general rule, articulated in 38 C.F.R. § 3.400, that

the effective date of a DIC award will be the latter of the date the claim was received or the date

entitlement arose. However, where a claim is received more than 1 year after the date entitlement

arose, the exception does not apply and the effective date for DIC – as well as the date upon which

to assess whether a claimant was a "child," under the Secretary's regulation – would be the date of

the DIC claim. 38 C.F.R. § 3.400; see 38 U.S.C. § 5110(a), (e)(1). This view of determining an

effective date comports with the general scheme of effective dates. For example, 38 C.F.R.

§ 3.400(o)(1) states the general rule that the effective date for increased disability ratings will be

the latter of the date the claim was received or the date entitlement arose, but § 3.400(o)(2) provides

a limited exception that the effective date of an increased rating will be the "[e]arliest date as of

which it is factually ascertainable," that is, the date entitlement arose, when a claim is received

within 1 year of that date. See 38 U.S.C. § 5110(b)(3). Therefore, the Court finds the Secretary's

regulation presents a permissible construction of the statute Congress enacted. See McCarroll v.

McDonald, 28 Vet.App. 267, 271 (2016) (en banc) ("Statutes and regulations 'must be considered

as a whole and in the context of the surrounding statutory [and regulatory] scheme.'" (quoting

Gazelle v. McDonald, 27 Vet.App. 461, 464 (2016))).

5

The Secretary explained that "[t]here are two logical dates upon which entitlement to DIC benefits may

arise: the date of death of the veteran, or the date the child in question was born, whichever is later." Secretary's Suppl.

Br. at 2.

6

The Secretary further notes that his interpretation regarding eligibility as a "child" for the

purpose of DIC is "not inconsistent with" this Court's precedent on eligibility for the purpose of

other death benefits, such as accrued benefits. Secretary's Suppl. Br. at 2-3. In Sucic, the Court

held that, because "an accrued benefits determination is to be made 'upon the death of a veteran[,]'

. . . . [a] child of a deceased veteran is therefore eligible for substitution only if he or she satisfies

the definition of 38 U.S.C. § 101(4)(A) 'upon the death' of the veteran." 29 Vet.App. at 125-26

(quoting 38 U.S.C. § 5121(a)(2)) (accrued benefits shall be paid upon the veteran's death to the

veteran's spouse, children (in equal shares), or dependent parents (in equal shares), in that order);

see also Nat'l Org. of Veterans Advocates, Inc. (NOVA) v. Sec'y of Veterans Affairs, 809 F.3d 1359,

1362 (Fed. Cir. 2016) (observing that, "[b]ecause the status of a potential substitute is not static,

eligibility to substitute can be conclusively determined only at the time of the claimant's death").

Further, in Bailey v. O'Rourke, this Court held that, because "eligibility for accrued benefits . . . is

determined on the date the veteran died," a change in status (in that case the remarriage of the

deceased veteran's spouse) "does not affect a pending claim for accrued benefits." 30 Vet.App. 54,

59 (2018). A claimant's status as a "child" under 38 U.S.C. § 101(4)(A) is similarly not static.

Applying the logic used in Sucic, NOVA, and Bailey to claims filed within 1 year after the date

entitlement arose, it is reasonable to look to the date entitlement arose (the date the veteran died

or, in some circumstances, the claimant's birth) to determine whether a claimant is a "child" for

the purpose of DIC eligibility. It is also reasonable that a later change in the claimant's "child"

status would have no effect on a pending DIC claim filed while the claimant was still a "child."

In Burris, the Court held that the appellant, "by virtue of his age, . . . may not be awarded

DIC benefits, on the basis of CUE or on any other basis, under the law," which on its face appears

to forestall the Secretary's interpretation. 15 Vet.App. at 353. In that case, a veteran's adult child

sought DIC when the veteran died. However, Mr. Burris's purported entitlement did not arise until

the death of the veteran, at which point he was no longer a "child." Compare id. (taking judicial

notice of Mr. Burris's then-current age), with id. at 350 (noting the veteran's date of death). Thus,

the Burris Court's seemingly broad holding is narrowed by the facts, resulting in no period during

which Mr. Burris was an eligible DIC claimant.

Because the regulation implementing the statute is a permissible construction of the law

Congress enacted concerning the scheme for effective dates, as well as with this Court's precedent

concerning death benefits, the Court concludes that the appropriate date on which to assess whether

7

a person qualifies as a "child" for the purpose of determining eligibility for DIC benefits is

governed by 38 C.F.R. § 3.400(c)(4) and depends on when the claim was filed. For claims filed

within 1 year after the date entitlement arose, whether a claimant is a "child" should be assessed

on the date entitlement arose. For claims filed more than 1 year after the date entitlement arose,

whether a claimant is a "child" should be assessed on the date the claim was received.

Applying the above analysis to the facts of this case, if a claim was filed on the appellants'

behalf within 1 year of the veteran's death, the date of death is the appropriate date upon which to

assess whether the appellants were "children," and their present age is not a bar to benefits.

Otherwise, the appropriate "child" assessment date is the date the claim was received. Therefore,

in this case, whether the appellants are eligible claimants depends on whether a claim was filed on

their behalf within 1 year of the veteran's death or at some other point while they were still

"children."

B. Reasonably Raised Theory of a Pending Claim

Because the Court has determined that the appellants could be eligible claimants if pending

and unadjudicated claims were filed on their behalf while they were "children" for VA purposes,

it must now consider whether the record reasonably raised such theory of entitlement.

The Board is required to consider theories of entitlement to benefits that are either raised

by the claimant or reasonably raised by the record. Robinson v. Peake, 21 Vet.App. 545, 552

(2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). However, that

obligation "does not require the Board to assume the impossible task of inventing and rejecting

every conceivable argument in order to produce a valid decision." Id. at 553. "Where a fully

developed record is presented to the Board with no evidentiary support for a particular theory of

recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d

at 1361; see Shields v. Brown, 8 Vet.App. 346, 349-50 (1995) (declining to find that an application

for burial benefits put VA "on notice" that the appellant sought additional DIC benefits). Whether

an issue is reasonably raised by the record is essentially a question of fact, subject to the "clearly

erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Robinson, 21 Vet.App. at 553; see also

Barringer v. Peake, 22 Vet.App. 242, 244 (2008).

The appellants argue that the record reasonably raised the theory that the 1969 DIC

application filed by the veteran's parents was an incomplete, defective, or informal claim for

benefits filed on their behalf that, when combined with the appellants' formal 2010 DIC claims,

8

renders the claim filed in 1969 – when they were "children" and eligible to receive DIC – pending.

Appellants' Br. at 7-8. The appellants assert that this theory was raised by (1) appellant Lynch's

Notice of Disagreement (NOD), in which she stated that the veteran's parents did not provide "'all

of the correct information [and] facts'" to VA, Appellants' Reply Br. at 2 (quoting R. at 184);

(2) the appellants' VA Forms 9, in which they stated that they are entitled to benefits "due to the

nature of the situation at the time of death," R. at 118, 120; Oral Argument at 57:04-:27, Lynch v.

Wilkie, U.S. Vet. App. No. 16-0541 (argued Aug. 21, 2018), http://www.uscourts.cavc.gov/

oral_arguments_audio.php (explaining that the VA Form 9 comments refer to fraud on the part of

the veteran's parents); and (3) the appellants' testimony before a Board member that the 1969

application was "incorrectly completed." Oral Argument at 03:38-:55; see, e.g., R. at 55 (appellant

Lynch's testimony that her grandparents were "dishonest to the system").

While the evidence cited may suggest that the 1969 application was not accurately

completed, it does not necessarily follow that identifying inaccuracies in the 1969 application

submitted by the veteran's parents reasonably raises the theory that the application should be

considered filed on behalf of the appellants. Indeed, the same evidence cited above shows that the

appellants consistently asserted below that the veteran's parents intentionally sought to deny the

appellants the opportunity to seek DIC – in other words, that the 1969 DIC claim was not a claim

on the appellants' behalf. For example, at the Board hearing, the appellants' representative

acknowledged that, "due to [the appellants'] family situation, [DIC] benefits were not sought on

their behalf." R. at 52 (emphasis added). The representative further stated that "there was a

deliberate attempt by [the appellants'] grandparents" to deprive the appellants of benefits. R. at 71.

Additionally, appellant Lynch stated in her NOD that the veteran's parents "didn't make the VA

aware of any dependent children," R. at 184, and both appellants asserted on their VA Forms 9

that "[o]ur grandparents essentially committed fraud," because they "didn't [and] wouldn't report

that the veteran had any surviving children," and "tried to utilize the VA benefits for themselves,"

R. at 118, 120. Thus, even under the most sympathetic of readings, there is no suggestion in the

cited evidence that the 1969 claim filed by the veteran's parents, whether considered on its own or

in conjunction with the appellants' 2010 claims, should be construed as a claim filed on behalf of

9

the appellants when they were "children" as defined by 38 U.S.C. § 101(4)(A).6 Therefore, this

theory was not reasonably raised before the Board.

In supplemental briefing, the appellants also asserted that the Board should have considered

whether a formal DIC claim may be pending based on an application for Social Security

Administration (SSA) survivor benefits in accordance with 38 U.S.C. § 5105(b). Appellants'

Suppl. Br. at 7 n.1. This theory was not reasonably raised by the record either, as there is no

evidence that anyone applied for SSA benefits on the appellants' behalf. See R. at 66 (Board

hearing testimony that the appellants' mother went to an SSA office but was told she was

ineligible). Consequently, the only claims before the Board were the appellants' 2010 claims.

Because those claims were not filed within 1 year of the veteran's death, the date on which to assess

whether the appellants were "children" was the date the 2010 claims were filed. See 38 C.F.R.

§ 3.400(c)(4). As there is no dispute that the appellants were not "children" in 2010, the Board's

conclusion that they are not eligible DIC claimants as a matter of law is not erroneous, and the

January 2016 Board decisions will be affirmed.

Finally, the appellants argue that "the Board's error was that it was not required to deny the

appeal as a matter of law given that it was permitted to accept the application filed by the

[appellants'] grandparents in 1969 to include the appellants." Appellants' Reply Br. at 1 (emphasis

in original). They further argue that, because the 1969 application was not accurate as to whether

the veteran had dependent children, and because that inaccuracy deprived the appellants of benefits

for which they would otherwise have been eligible, "VA's non-adversarial system" authorizes VA

to remedy any past error by "constru[ing] the parents' 1969 application for DIC as an informal

application for the [appellants,] which remained pending until formal applications were submitted

in 2010." Appellants' Suppl. Reply Br. at 8-9. However, the question before the Court is not

whether appellants' theories of entitlement have merit, but whether the theories were reasonably

raised before the Board such that the Board erred in not discussing them. Robinson, 21 Vet.App.

at 553. As discussed above, although the record suggests that the 1969 application was inaccurate,

it does not suggest that the 1969 application should have been considered as filed on the appellants'

behalf. To the extent the appellants argue that the Board should nonetheless have considered such

6

Despite our dissenting colleague's contentions, it is unclear how an application by parties working at odds

with the appellants could ever be considered an application to which the appellants' more recent filings might relate,

or that would allow VA to provide the relief sought.

10

theories "to fix what was obviously a tragic situation," Oral Argument at 8:25-:28, this argument

lies in equity. See Robinson, 21 Vet.App. at 553 (Board is not required to invent and reject "every

conceivable argument"). Although the Court is sympathetic to the appellants' circumstances and

understands their frustration, the Court is not a court of equity and may not grant the equitable

relief sought. Holle v. McDonald, 28 Vet.App. 112, 119 (2016) ("[T]his Court may not award

equitable relief, no matter how compelling the facts."); see Moffitt v. Brown, 10 Vet.App. 214, 225

(1997); Mason v. Brown, 8 Vet.App. 44, 59 (1995); Schleis v. Principi, 3 Vet.App. 415, 418

(1992); see also 38 U.S.C. § 503(a) (the Secretary may award equitable relief).

C. Did VA Have an Unmet "Duty To Assist"?

Alternatively, the appellants argue that, regardless of whether the evidence reasonably

raised a theory of entitlement under which they are potentially eligible DIC claimants, VA

nonetheless had an independent duty to construct a complete record before deciding the case.

Appellants' Br. at 15-17. They assert that evidence is missing from the record, and that the missing

evidence may show that, in 1969, VA had "constructive notice" that they were the veteran's

children. Id. However, the appellants do not assert that VA improperly decided the claim in 1969,

nor are they asserting that the 1969 decision should be reopened or revised. Appellants' Suppl.

Reply Br. at 8; Oral Argument at 6:33-:39. Further, the Court has determined that the record did

not reasonably raise the theory that there is a pending claim dating from when the appellants were

"children" as defined by the applicable statute. Consequently, it is not clear what purpose further

development would serve, and the Court holds that the appellants have not demonstrated error in

this regard. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (noting that, in order to

conclude that records are relevant, "[t]here must be specific reason to believe these records may

give rise to pertinent information"); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)

(appellant bears burden of demonstrating error on appeal), aff'd per curiam, 232 F.3d 908 (Fed.

Cir. 2000) (table); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) ("'[D]uty to assist' is not a

license for a 'fishing expedition' to determine if there might be some unspecified information which

could possibly support a claim."); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (holding that

remand is not warranted where it would unnecessarily impose additional burdens on the Board

with no benefit flowing to the veteran).

11

IV. CONCLUSION

For the foregoing reasons, the January 29, 2016, Board decisions are AFFIRMED.

ALLEN, Judge, concurring in part and dissenting in part: I join in full parts I, II, and III.A

of the majority opinion. Judge Schoelen's opinion for the Court explains clearly the appropriate

standards for how one determines when someone is a "child" for purposes of the receipt of DIC

benefits under 38 C.F.R. § 3.400(c)(4). However, I respectfully dissent with regard to whether the

record reasonably raised a theory of recovery under the law the Court describes and, thus, cannot

join the balance of the majority opinion.

I agree with the majority about the relevant law that frames this portion of the inquiry. As

the majority explains, see ante at 8, the Board must consider all theories of entitlement that a

claimant expressly asserts or that the record otherwise reasonably raises. Robinson v. Peake,

21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).

And I also agree that the Board is not tasked with "assum[ing] the impossible task of inventing

and rejecting every conceivable argument in order to produce a valid decision." Id.; see also ante

at 8 (discussing these concepts). I disagree with the majority not about the law, but rather about

how the law applies to the facts of these appeals.

In my assessment, there was more than enough evidence in the record to trigger the Board's

obligation to consider the appellants' theory of entitlement. Cf. Robinson, 447 F.3d at 1361

("Where a fully developed record is presented to the Board with no evidentiary support for a

particular theory of recovery, there is no reason for the Board to address or consider such a theory"

(emphasis added)). Before explaining why that is so, I pause to underscore one additional point of

agreement between the majority and me. The majority notes that "the question before the Court is

not whether appellants' theories of recovery have merit, but whether the theories were reasonably

raised before the Board such that the Board erred in not discussing them." Ante at 10 (citing

Robinson, 21 Vet.App. at 553). I agree entirely. The appellants may not prevail on the merits;

indeed, they may even be unlikely to do so as the Secretary insists. The question that this Court

must decide is whether the appellants' theories should be considered on the merits by someone. I

conclude they should.

Stripped of legalese, the appellants' argument is that there was something unusual about

their grandparents' 1969 application for DIC benefits that should allow VA to treat it as an

12

application on their behalf for purposes of granting them benefits.7 In some sense at this point, the

particular merits of the appellants' claim are not all that relevant, so long as the theory was raised

and is facially plausible. The question instead is whether the Board was on notice that it should

explore this general theory of entitlement. The record shows that the Board had such notice.

First, in a Notice of Disagreement (NOD) dated December 27, 2010, appellant Lynch

recounted her grandparents' actions in 1969 and tied those actions to her current claim. See R. at

184. She stated that

I feel that the VA should award entitlement to DIC benefits to both me and my

sister. During the initial filing in 1969, not all of the correct information & facts

were provided for the VA to make a true and accurate decision. We should be

provided monetary benefits, as well as educational benefits. Because we were so

young at the time of death, we had no idea that we should be entitled to children's

DIC.

Id. This document clearly highlights the theory that there was something about the 1969

application that VA should consider as part of adjudicating appellants' claims. Again, it may be

that the answer to the ultimate question is adverse to appellants, but they sufficiently raised the

theory of recovery.8

Second, both appellants submitted VA Forms 9 in which they raised the same general

arguments concerning their grandparents' conduct in 1969 and how that conduct potentially

affected their claims for DIC benefits. See R. at 118 (Martinez Form 9), 120 (Lynch Form 9).

These documents mirror in many respects the assertions contained in Ms. Lynch's NOD. But they

also make a more express argument when concluding as follows: "To summarize our requests, we

are requesting 'lump sum' retroactive benefit[s] to be awarded. Our grandparents essentially

committed fraud in order to obtain the monies due." Id.

7

At oral argument, appellants summarized that this case is about the following: "whether the [Board] erred

when it said that . . . it could review no evidence and . . . was required to deny the claim as a matter of law. We maintain

that . . . [the Board] was, in fact, able to and should have considered . . . whether an application filed in 1969 by the

grandparents of the appellants counted as an application either informal, incomplete, or defective, for the children."

Oral Argument at 1:47, Lynch v. Wilkie, U.S. Vet. App. No. 16-0541 (argued Aug. 21, 2018),

http://www.uscourts.cavc.gov/documents/Lynch-Martinez.mp3.

8

It does not appear that appellant Martinez's NOD is a part of the record before the Court. However, there

also does not appear to be any dispute that she filed an NOD or that the contents of that NOD likely mirror those in

appellant Lynch's NOD that is a part of the record. Moreover, appellant Lynch's NOD of record refers to the claims of

both appellants: "At the time of his death, [the veteran] did, in fact, have two minor children. I Marlesa Lynch . . .

[and] my sister, Cynthia Martinez." R. at 184.

13

And third, there was extensive testimony at a Board hearing about the grandparents'

conduct in 1969. See, e.g., R. at 54-55, 57, 61-62. This testimony fleshed out the general allegations

appellants had raised in their NODs and Forms 9. In my view, this testimony, when combined with

the other information before the Board, was sufficient to raise the theory of entitlement appellants

have argued before the Court.

The majority generally recognizes this evidence but concludes that "[w]hile the evidence

cited may suggest that the 1969 application was not accurately completed, it does not necessarily

follow that identifying inaccuracies in the 1969 application submitted by the veteran's parents

reasonably raises the theory that the application should be considered as one filed on behalf of the

appellants." Ante at 9. To support this reading of the record, the majority notes that at the Board

hearing the non-lawyer representing appellants stated that the 1969 application was not submitted

on behalf of the appellants. See id. (citing R. at 52). This statement is certainly correct as a matter

of fact. But appellants' theory is not premised on an argument that—in reality—their grandparents

submitted a formal application for them. The grandparents apparently were acting in ways at odds

with their granddaughters, appellants Lynch and Martinez. Thus, I do not rely greatly on this

statement, from a non-lawyer representative, 9 as foreclosing the more general arguments

concerning the 1969 application. This is even more so because of the other assertions about the

1969 application in the record, including the subsequent testimony at the Board hearing.

As to the plausibility of their theory, the law offers enough of a hook to render the Board's

decision to ignore it prejudicial. For example, if we focus solely on the appellant's theory that the

1969 application was "incomplete" until remedied by their 2010 filings, they argue that the first

application was missing a "critical element" when it omitted the veteran's dependent children.

Appellant's Supp. Br. at 7 (citing Fleshman v. West, 138 F.3d 142 (1998)). They allege that as a

consequence of that missing element, their recent filings relate back to 1969 when they were

eligible DIC recipients. As discussed above, the NOD, VA Form 9, and Board hearing transcript

explain this theory under a sympathetic reading.

9

My reference to the statement being made by a non-lawyer should not be taken to be a derogatory comment

on the assistance of veterans service organizations. The men and women in these organizations serve thousands of

veterans each year. They deserve accolades. My comment is meant to underscore that the statement at issue is now

being given tremendous legal significance in this appeal. The fact that it was made by someone without legal training

underscores my concern that the majority places far too much weight on it.

14

Whether this reasoning makes a winning argument has no bearing on the Board's duty to

address it and explain its decision. And the Secretary's various arguments on the merits are nothing

more than post hoc reasons or bases, which the Board should have provided in the first instance.

See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991)

("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post

hoc rationalizations' for agency action advanced for the first time in the reviewing court.").

At the end of the day, I simply view the evidence differently than does the majority. I

believe the record required the Board to consider whether there was something about the 1969

application that would allow it to provide relief. Its failure to do so was error. I would remand the

matter for the Board to develop the claim and render a decision on appellants' reasonably raised

theory of entitlement to DIC benefits.10 Accordingly, I respectfully dissent from the majority's

contrary decision.

10

The Board's error can't be deemed harmless. See 38 U.S.C. § 7261(c)(2) (requiring the Court to "take due

account of the rule of prejudicial error."). The Board concluded that the duty to assist did not apply to appellants'

claims because "the law, and not the evidence, is dispositive in this case." R. at 4 (Lynch decision), 14 (Martinez

decision). The Court would have to engage in too much speculation to conclude that the development of the appellants'

claims would not produce anything helpful with respect to their claims.

15