Joan Nailos v. Denis McDonough
19-0517
| Vet. App. | Aug 10, 2021Background
- Veteran died in 2002; his surviving spouse (Joan Nailos) applied for DIC and related benefits soon after; initial DIC claim was denied and that denial was later affirmed on appeal.
- Appellant reopened her claim in 2015 based on new medical evidence linking the veteran's death to service; RO granted DIC in March 2015, effective to the date of the 2009 claim to reopen.
- Appellant filed an intent to file and an aid-and-attendance (A&A) claim on May 30, 2017; RO granted A&A effective May 30, 2017.
- Appellant sought an earlier A&A effective date (arguing entitlement since June 2015 after an injury); Board denied an earlier date, finding the §3.402(c)(1) exception (retroactive A&A in conjunction with retroactive DIC) inapplicable because DIC was not a retroactive award.
- The Court reviewed the regulatory interpretation question and affirmed the Board: §3.402(c)(1) requires a retroactive DIC award (i.e., DIC effective for a period prior to the DIC claim) to trigger retroactive A&A payments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 38 C.F.R. §3.402(c)(1) permits an A&A effective date earlier than the A&A claim when claimant already receives DIC | §3.402(c)(1) allows retroactive A&A whenever the surviving spouse already receives DIC before filing the A&A claim (reads "claim" references as A&A claim) | The exception applies only when there is a retroactive DIC award (DIC effective for a period before the DIC claim); here no such retroactive DIC period existed | Court held the exception requires a retroactive DIC award; no retroactive DIC here, so exception not triggered; affirmed Board |
| Whether the regulation is ambiguous and whether agency deference applies | Regulation is not ambiguous; if ambiguous, agency interpretation does not merit Auer or Skidmore deference | Regulation’s plain meaning supports Secretary; if ambiguous, Secretary’s interpretation merits deference | Court found the regulation unambiguous on its text, structure, history and purpose and did not reach deference question |
| Whether Board error or prejudice occurred and relief warranted | Appellant argued she was prejudiced and sought reversal/remand for earlier effective date back to June 2015 | Secretary argued appellant failed to show DIC was effective prior to the DIC claim and thus no error or prejudice | Court held appellant did not show a retroactive DIC period or prejudicial error; no reversal or remand warranted |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own ambiguous regulations)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits Auer; courts must exhaust traditional tools before deferring)
- Brown v. Gardner, 513 U.S. 115 (1994) (plain meaning controls interpretation)
- Nielsen v. Preap, 139 S. Ct. 954 (2019) (use of definite article and referent in statutory/regulatory text)
- Shinseki v. Sanders, 556 U.S. 396 (2009) (appellant bears burden to show prejudice for VA error)
- Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961) (interpretive canon: a word is known by the company it keeps)
- Lane v. Principi, 339 F.3d 1331 (Fed. Cir. 2003) (de novo review of regulatory interpretation)