Scott v. Principi

STEINBERG, Associate Judge,

concurring:

I concur in the opinion of the Court except insofar as it requires proof of spousal status by a preponderance of evidence before VA’s duty to assist attaches. I agree with the views expressed by Judge Kramer in this case and in his concurring opinion in Aguilar v. Derwinski, 2 Vet.App. 21, 23-24 (1992). The Aguilar approach of requiring a person claiming benefits as a spouse of a veteran to establish spousal status by “preponderating evidence” before he or she achieves “claimant” status, and, hence, becomes entitled to VA assistance in developing the claim constructs, without statutory or regulatory support, a unique separate standard of proof governing the adjudication of a single fact issue. That approach does not comport with the statutory provisions governing VA adjudication of fact issues and review of such adjudications in this Court.

In the present case, the only issue to be determined in order to establish appellant’s entitlement to pension benefits under 38 U.S.C. § 1541 (a) (formerly § 541) is whether she is the “surviving spouse” of the veteran. Therefore, the threshold question as to whether she is a “claimant”, and thus entitled to VA assistance under the Aguilar analysis, is identical to the ultimate question of her entitlement to pension benefits. Under the Aguilar approach, such a claimant, even though she may have submitted a well-grounded claim for entitlement to VA benefits, would never be entitled to VA assistance in developing the facts pertinent to her claim, since resolution of the threshold issue under Aguilar's heightened standard of proof would be dis-positive of the ultimate question of entitlement to benefits.

Section 5107(a) (formerly § 3007) of title 38, U.S.Code, establishing VA’s duty to assist, states:

Except when otherwise provided by the Secretary [of Veterans Affairs] in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief in a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim.

(Emphasis added.) Section 5107(a) thus establishes that a “claimant” to whom VA owes a duty to assist is “a person who submits ... evidence sufficient to justify a *357 belief in a fair and impartial individual that the claim is well grounded.” There is nothing in the statute or the applicable regulations to suggest that a person must submit anything above and beyond a well-grounded claim for benefits in order to establish that she is a “claimant” entitled to YA assistance. 1

In defining the requirement of a well-grounded claim, the Court has stated:

A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)].

Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A requirement that there be an additional, and more demanding, threshold standard of proof when the claim for entitlement to benefits depends, in whole or in part, upon whether a person is the surviving spouse of a veteran would deprive claimants in such cases of a right to VA assistance that the statute attaches upon submission of a well-grounded claim for benefits.

The appellant in this case submitted a well-grounded claim for survivors’ pension benefits. She submitted several lay statements from persons who stated, based upon their personal knowledge, that the appellant and the veteran had lived together as man and wife and had held themselves out to the public as man and wife. R. at 67-71, 88-91, 113-15. She also submitted an award letter from the Social Security Administration (SSA) notifying her of an award of monthly benefits as the widow of the veteran. R. at 99-100. On that basis, her claim of entitlement to VA benefits based on her being the surviving spouse of the veteran was plausible, and, hence, well grounded.

Under the ordinary application of section 5107(a), then, VA would have had a duty to assist her in developing the facts pertinent to her claim. That duty would require VA to seek to obtain records from the SSA regarding its determination that she was entitled to benefits as the veteran’s widow. See Murincsak v. Derwinski, 2 Vet.App. 363, 369-73 (1992) (pursuant to duty to assist, VA must seek to obtain all pertinent records, including SSA records, of which it is put on notice); Masors v. Derwinski, 2 Vet.App. 181, 187-88 (1992) (same); 38 C.F.R. § 3.159 (1991). The SSA and VA use the same standard — the applicable state law — to determine whether a valid common-law marriage existed for purposes of establishing “surviving spouse” or “widow” status. See 38 C.F.R. §§ 3.1 (j), 3.50(a), (b) (1991); 20 C.F.R. § 404.345 (1991). Therefore, the findings and analysis of the SSA in reaching a conclusion that the appellant was the veteran’s widow are clearly pertinent to the appellant’s claim that she is entitled to VA pension benefits as the veteran’s surviving spouse. Pursuant to its statutory duty to assist, VA should be required to seek to obtain the SSA records in this case. Regardless of Aguilar , VA is free on remand to obtain those highly pertinent records and give them appropriate consideration as part of the full readjudication ordered.

. In its ordinary meaning, "claimant” refers to “[o]ne who claims or asserts a right, demand, or claim”. Black’s Law Dictionary 247 (6th ed. 1990). Absent clearly expressed contrary legislative intent, statutory terms will be interpreted according to their ordinary meanings. See Jones (McArthur) and Karnas v. Derwinski, 2 Vet.App. 231, 232 (1992); cf. 57 Fed.Reg. 4088, 4110 (1992) (to be codified at 38 C.F.R. § 20 .-3(f), (g)) (defining “claimant" for purposes of BVA rules as “a person who has filed” an "application” for benefits under title 38, U.S.Code).