Case: 19-1804    Document: 51     Page: 1   Filed: 05/12/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                     BOBBI BROWN,
                    Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2019-1804
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-2300, Judge Amanda L. Mere-
 dith.
                 ______________________

                  Decided: May 12, 2020
                  ______________________

     HAROLD HAMILTON HOFFMAN, III, Veterans Legal Ad-
 vocacy Group, Arlington, VA, for claimant-appellant. Also
 represented by MEGHAN GENTILE.

     REBECCA SARAH KRUSER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent-appellee. Also repre-
 sented by JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT
 EDWARD KIRSCHMAN, JR.; Y. KEN LEE, BRYAN THOMPSON,
Case: 19-1804     Document: 51     Page: 2    Filed: 05/12/2020




 2                                            BROWN   v. WILKIE



 Office of General Counsel, United States Department of
 Veterans Affairs, Washington, DC.
                  ______________________

     Before O’MALLEY, BRYSON, and CHEN, Circuit Judges.
 O’MALLEY, Circuit Judge.
     Bobbi Brown claims entitlement to death benefits
 based on her marriage to veteran Paul W. Brown. Because
 the Browns divorced approximately seven months before
 Mr. Brown passed away, the Department of Veterans Af-
 fairs (“VA”) and the Board of Veterans’ Appeals (“the
 Board”) both denied Ms. Brown’s claim. See Brown v.
 Wilkie, No. 17-2300, 2018 WL 6036581, at *1 (Vet. App.
 Nov. 19, 2018). Specifically, they concluded that the gov-
 erning statute and regulation—38 U.S.C. § 101(3) and
 38 C.F.R. § 3.50(b)—required a claimant to prove she and
 the veteran were married as of the time of death in order
 to qualify as a surviving spouse entitled to receive death
 benefits. Id. at *2–3. For different reasons, the Court of
 Appeals for Veterans Claims (“Veterans Court”) affirmed
 the denial of benefits to Ms. Brown. Id. at *4–5.
     On appeal, Ms. Brown presents three primary argu-
 ments. First, she contends that that the VA, the Board,
 and the Veterans Court misinterpreted 38 U.S.C.
 § 101(3)—the statute governing who is considered a “sur-
 viving spouse” for purposes of eligibility for death benefits.
 Appellant’s Br. 12. In Ms. Brown’s view, because her di-
 vorce was the result of alleged domestic violence perpe-
 trated by Mr. Brown, she qualifies as a surviving spouse
 because the statute provides an exception in cases “where
 there was a separation which was due to the misconduct of,
 or procured by, the veteran without the fault of the spouse.”
 Id. (quoting 38 U.S.C. § 101(3)). Second, she argues that
 the Veterans Court erred by reviewing under a higher-
 than-required standard the VA’s failure to obtain Mr.
 Brown’s treatment records, which Ms. Brown considers
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 BROWN   v. WILKIE                                          3



 relevant to her allegations of abuse. Id. at 8–11. Finally,
 Ms. Brown argues that, on appeal, the Veterans Court im-
 permissibly made a factual finding in the first instance
 that she was not a victim of domestic abuse. Id. at 29–30.
 For the reasons stated below, we affirm.
                          BACKGROUND
     While the parties discuss many details regarding Ms.
 Brown’s back and forth with the VA and the Board with
 respect to her claim, there are only two pertinent facts of
 note. First, by the time the VA rejected Ms. Brown’s claim
 and that rejection was affirmed on appeal, it was undis-
 puted that the Browns had divorced on October 4, 2013 and
 that Mr. Brown did not pass away until May 4, 2014. Sec-
 ond, before her appeal to the Veterans Court, Ms. Brown
 did not claim or present evidence to support a claim that
 the couple’s divorce was caused by domestic violence per-
 petrated by the veteran. In affirming the denial of benefits,
 the Veterans Court noted that Ms. Brown “ha[d] not
 pointed to any factual predicate in the record for this newly
 raised theory of entitlement—specifically, evidence that
 she and the veteran divorced because of his abuse[.]”
 Brown, 2018 WL 6036581, at *5. Accordingly, the court re-
 fused to address “the remaining legal question—whether
 VA’s regulatory definition of a surviving spouse is a per-
 missible interpretation of Congress’ statutory definition.”
 Id.
                          JURISDICTION
     We first briefly address the government’s claim that we
 lack jurisdiction over this appeal. Our jurisdiction over the
 decisions of the Veterans Court is limited by statute. Bond
 v. Shinseki, 659 F.3d 1362, 1366 (Fed. Cir. 2011). Under
 38 U.S.C. § 7292(d)(2), we “may not review (A) a challenge
 to a factual determination, or (B) a challenge to a law or
 regulation as applied to the facts of a particular case.”
 38 U.S.C. § 7292(d)(2). The government claims that the
 Veterans Court declined to address the main legal
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 4                                            BROWN   v. WILKIE



 contention Ms. Brown asserted in her appeal before that
 court and which she asserts again here—that the domestic
 abuse exception in 38 U.S.C. § 101(3) obviates the need to
 prove an existing marriage as of the date of death. Instead,
 the government asserts that the Veterans Court’s decision
 was predicated on factual conclusions which we may not
 review. We disagree.
      We see at least one legal issue on which we may ground
 jurisdiction: the assertion that the Veterans Court erred in
 its analysis of the VA’s duty to assist in obtaining necessary
 evidence pursuant to 38 U.S.C. § 5103A and the related im-
 plementing regulations. While it is true that we may not
 review the Veterans Court’s factual conclusion that the VA
 satisfied its duty to assist, we may, and have, reviewed the
 Veterans Court’s characterization of the nature of that
 duty. See, e.g., Jones v. Wilkie, 918 F.3d 322 (Fed.
 Cir. 2019). We, thus, proceed to consider this appeal.
                         DISCUSSION
     Again, the parties discuss the scope of the VA’s duty to
 assist in the context of a spouse’s claim for death benefits
 at some length. They discuss the relevant governing stat-
 utes and regulations and whether our prior decisions sup-
 port their respective positions. And, they debate whether
 the Veterans Court made a factual finding regarding
 whether Ms. Brown was, in fact, the victim of domestic
 abuse. As with our consideration of the parties’ respective
 discussions of the factual and procedural background sur-
 rounding Ms. Brown’s claim, we find little of relevance in
 those discussions.
     Contrary to Ms. Brown’s claim that we have never con-
 sidered the issue, we have considered and decided the ulti-
 mate legal issue underlying Ms. Brown’s claim—whether
 or not a claimant seeking death benefits must demonstrate
 that she was married to the veteran at the time of his death
 where she claims the divorce was brought on by the vet-
 eran’s physical abuse. In Haynes v. McDonald, 785 F.3d
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 BROWN   v. WILKIE                                          5



 614, 616 (Fed. Cir. 2015), we answered that question in the
 affirmative. Marriage at the time of death is a necessary
 predicate for a spousal death benefit claim, regardless of
 the reason for the divorce. Id. (“Section 3.50(b) defines the
 ‘surviving spouse’ as someone ‘who was the spouse of the
 veteran at the time of the veteran’s death,’ tracking the
 statute[, 38 U.S.C. 101(3)]. No exception to this clear stat-
 utory mandate and regulation is indicated.”). While that
 conclusion may seem harsh, particularly in the context of
 Ms. Brown’s assertions, it is the one we reached in Haynes
 based on our interpretation of § 101(3) and its implement-
 ing regulations.
     Whether the VA adequately assisted Ms. Brown in
 searching for records that would support her assertion that
 she was abused, and whether the Veterans Court made an
 improper fact-finding regarding that assertion, are ulti-
 mately irrelevant to the disposition of this appeal. Under
 Haynes, in order to prevail on her claim, Ms. Brown must
 prove that she was married to Mr. Brown at the time of his
 death. Ms. Brown concedes that her marriage to Mr.
 Brown ended on October 4, 2013. Appellant’s Br. 4. In
 these circumstances, we need not examine whether the
 Veterans Court erred in applying the VA’s duty to assist.
 As we have previously explained, “[w]e can . . . affirm ‘a
 Veterans Court decision on the basis of harmless error
 when application of the correct legal standard to undis-
 puted facts establishes that the judgment of the Veterans
 Court [is] correct[.]’” Menegassi v. Shinseki, 638 F.3d 1379,
 1383 (Fed. Cir. 2011) (quoting Wood v. Peake, 520 F.3d
 1345, 1348 (Fed. Cir. 2008)). Any error in the Veterans
 Court’s conclusion that the VA met its duty to assist is
 harmless because, under Haynes, Ms. Brown’s claim is le-
 gally meritless. Accordingly, we affirm the Veterans
 Court’s judgment.
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 6                                           BROWN   v. WILKIE



                        CONCLUSION
     For the foregoing reasons, we affirm.
                       AFFIRMED
                           COSTS
     No costs.
