Case: 21-1798 Document: 37 Page: 1 Filed: 05/11/2022
United States Court of Appeals
for the Federal Circuit
______________________
FLORENCE KENNEDY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1798
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-256, Judge Joseph L. Falvey,
Jr., Judge Joseph L. Toth, Judge Michael P. Allen.
______________________
Decided: May 11, 2022
______________________
AMY F. ODOM, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also represented
by BARBARA J. COOK, ZACHARY STOLZ; MEGAN BRITTNEY
HALL, Disabled American Veterans, Cold Spring, KY.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F.
HOCKEY, JR.; Y. KEN LEE, DEREK SCADDEN, Office of
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2 KENNEDY v. MCDONOUGH
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before NEWMAN, STOLL, and CUNNINGHAM, Circuit
Judges.
Opinion for the court filed by Circuit Judge STOLL.
Dissenting opinion filed by Circuit Judge NEWMAN.
STOLL, Circuit Judge.
Florence Kennedy appeals the judgment of the United
States Court of Appeals for Veterans Claims affirming the
Board of Veterans’ Appeals’ decision denying her request
for an earlier effective date for Dependency and Indemnity
Compensation (DIC) under 38 C.F.R. § 3.114. Because
Mrs. Kennedy forfeited her regulatory interpretation argument, we affirm.
BACKGROUND
Keith Kennedy, Mrs. Kennedy’s late husband, served
on active duty in the United States Army for nearly seven
years in the 1970s. During service, Mr. Kennedy fell from
a lawn mower and injured his knee. Although no disability
was noted at the time of discharge, Mr. Kennedy applied
for, and received, service connection for his knee injury in
2000. Two years later, Mr. Kennedy applied for and received service connection for depression secondary to his
knee injury.
In 2005, Mr. Kennedy was diagnosed with melanoma.
The cancer rapidly metastasized, and Mr. Kennedy passed
away the same year. Mr. Kennedy’s death certificate listed
“melanoma, metastatic” as the immediate cause of death
and listed “other significant conditions contributing to
death but not resulting in the underlying cause given,” including “diabetes mellitus, type 2,” “hypertension,” and
“depression disorder.” J.A. 27.
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KENNEDY v. MCDONOUGH 3
Mrs. Kennedy filed for DIC as Mr. Kennedy’s surviving
spouse under 38 C.F.R. § 3.702. Between 2005 and 2010,
Mrs. Kennedy filed for, and was denied, DIC three times.
Each time, the VA denied service connection for Mr. Kennedy’s cause of death because “there [was] no evidence to
show that the veteran’s death was related to military service.” J.A. 44; see also J.A. 37; J.A. 42.
In 2013, the Director of the Pension and Fiduciary Service of the Department of Veterans Affairs issued Fast Letter 13-04, titled “Simplified Processing of Dependency and
Indemnity Compensation (DIC) Claims.” J.A. 47–50. Fast
Letter 13-04, addressed to “All Pension Management Center and Veterans Service Center Personnel,” “rescinds or
clarifies prior guidance on the processing of DIC claims.”
J.A. 47. It instructs personnel to “take immediate action”
on DIC claims “where the cause of death listed on the death
certificate matches one or more of the deceased Veteran’s
service-connected disabilities” by granting “service connection for the cause of death when the death certificate shows
that the service-connected disability is [a] . . . contributory
cause of death.” J.A. 48. Fast Letter 13-04 streamlined the
processing of DIC claims by allowing adjudicators to presume that a service-connected disability “contributed substantially and materially to the Veteran’s death” without
requiring further development of facts regarding “the
causal connection between the Veteran’s service-connected
disability and the cause of death.” Id.
Mrs. Kennedy then filed her last, successful application for DIC in July 2015. The VA granted Mrs. Kennedy
DIC with an effective date of July 7, 2015—the date her
final claim was received—because the service-connected
illness, depression, appeared on Mr. Kennedy’s death certificate. J.A. 51–52, 55.
Mrs. Kennedy appealed this effective date to the Board
of Veterans’ Appeals, arguing that her claim was “granted
based on a change in VA regulatory guidance” in the form
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4 KENNEDY v. MCDONOUGH
of Fast Letter 13-04, and that “a retroactive effective date
for the award of DIC” was available under 38 C.F.R.
§ 3.114(a). J.A. 59. That regulation provides for retroactive effective dates for certain benefits awarded following a
“[c]hange of law or Department of Veterans Affairs issue.”
§ 3.114(a). Specifically, it provides for an additional “period of 1 year prior to the date” on which the claim for benefits was received if DIC was awarded or increased because
of a “liberalizing law” or “liberalizing VA issue approved by
the Secretary or by the Secretary’s direction.” Id. The
Board denied Mrs. Kennedy’s appeal, explaining that because Fast Letter 13-04 was a “change[] to VA procedural
manuals and guidance provisions,” it could not be considered a liberalizing law or liberalizing VA issue under
§ 3.114. J.A. 62.
Before the Veterans Court, Mrs. Kennedy argued that
she should be granted a retroactive year of DIC because
Fast Letter 13-04 was a “liberalizing VA issue approved by
the Secretary or by the Secretary’s direction” under
§ 3.114. The Veterans Court affirmed the Board’s decision,
holding that “VA Fast Letter 13-04 does not constitute a
. . . ‘VA issue approved by the Secretary or by the Secretary’s direction,’” J.A. 14, because it “is not binding on the
Board” and therefore “does not bind the Agency,” J.A. 13.
Mrs. Kennedy appeals. We have jurisdiction under
38 U.S.C. § 7292.
DISCUSSION
On appeal, Mrs. Kennedy challenges the Veterans
Court’s definition of a “VA issue” under 38 C.F.R. § 3.114
as overly narrow and asserts that the Veterans Court erred
as a matter of law in determining that Fast Letter 13-04
was not “approved by the Secretary or by the Secretary’s
direction.” We review questions of law, including the Veterans Court’s interpretation of regulations, de novo.
Breland v. McDonough,
22 F.4th 1347, 1350 (Fed. Cir.
2022). We cannot review challenges to underlying factual
Case: 21-1798 Document: 37 Page: 5 Filed: 05/11/2022
KENNEDY v. MCDONOUGH 5
determinations or application of law to facts, except for constitutional challenges.
38 U.S.C. § 7292(d)(2). Because we
conclude that Mrs. Kennedy forfeited her argument that
the Veterans Court erred in its interpretation of “VA issue,” we affirm the Veterans Court decision and need not
reach the other issues that Mrs. Kennedy raised.
Mrs. Kennedy seeks a retroactive period of one year
under § 3.114(a), which requires that DIC was awarded
pursuant to a liberalizing (i) “VA issue” that is (ii) “approved by the Secretary or by the Secretary’s direction.”
Section 3.114(a) recites in relevant part:
(a) Effective date of award. Where . . . dependency
and indemnity compensation . . . is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the
Secretary’s direction, the effective date of such
award or increase shall be fixed in accordance with
the facts found . . . .
(3) If a claim is reviewed at the request of
the claimant more than 1 year after the effective date of the law or VA issue, benefits
may be authorized for a period of 1 year
prior to the date of receipt of such request.
Before the Veterans Court, Mrs. Kennedy asserted
that a “VA issue” is “a directive from or approved by the
Secretary and is binding on [the] VA.” J.A. 79 (emphasis
added). The Veterans Court agreed with, adopted, and applied Mrs. Kennedy’s definition. J.A. 9. Now, on appeal,
Mrs. Kennedy contends that the definition is too restrictive. Specifically, she accuses the Veterans Court of
“adopt[ing] its own interpretation that requires the directive to be ‘binding on [the] VA’” and “fail[ing] to defer to
the [Secretary’s] reasonable interpretation” that did not require that a “VA issue” be “binding on [the] VA.” Appellant’s Br. 10–11.
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6 KENNEDY v. MCDONOUGH
We have held that an appellant who “urged upon the
Veterans Court” a position forfeits any argument on appeal
that the Veterans Court “committed reversible error” when
the court applied that position. Logan v. Principi,
71 F. App’x 836, 838–39 (Fed. Cir. 2003); see also Forshey
v. Principi,
284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).
Here, the Veterans Court adopted the definition Mrs. Kennedy asked it to adopt. She now argues that the Veterans
Court erred in adopting that definition. Because Mrs. Kennedy advocated for the very definition of “VA issue” that
the Veterans Court adopted and applied, we conclude that
Mrs. Kennedy forfeited her argument on appeal that the
Veterans Court should have deferred to the Secretary’s
proposed definition of “VA issue.”
At oral argument, counsel for Mrs. Kennedy asserted
that she should not be estopped from arguing against the
definition that she offered to the Veterans Court because
she “did not argue that [a VA issue] has to be binding on
the agency as a whole.” Oral Arg. at 14:34–14:52,
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21
-1798_03102022.mp3; see also Appellant’s Reply Br. 15
(“Before the Veterans Court, [Mrs. Kennedy] argued that a
‘VA issue’ must be binding on [the] VA . . . but nowhere in
her pleadings did she suggest that it must be binding on all
of [the] VA, as the Veterans Court held.”). Rather,
Mrs. Kennedy contends that she asserted that a “VA issue”
need only be binding on the “frontline adjudicators,” not
the Board. Appellant’s Reply Br. 15–16. We are not convinced.
Mrs. Kennedy repeatedly asserted before the Veterans
Court that a “VA issue” must be “binding on [the] VA,” including the Board. J.A. 79, J.A. 83 (“Fast Letter 13-04 is
binding on the Board.”); J.A. 87 (“[T]he Board was bound
by [Fast Letter 13-04].”). The definition that Mrs. Kennedy
advocated to the Veterans Court did not limit the proposed
requirement of being “binding on [the] VA” to binding only
the claim adjudicators as she now argues. Indeed,
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KENNEDY v. MCDONOUGH 7
Mrs. Kennedy expressly argued that because “Fast Letter
13-04 [was] binding on the Board,” it was a “VA issue.”
J.A. 83 (emphasis added). Accordingly, we cannot say that
the Veterans Court erred in interpreting Mrs. Kennedy’s
position to be that a “VA issue” must be binding on the entire VA, including the Board.
CONCLUSION
We conclude that Mrs. Kennedy forfeited her argument
that the Veterans Court erred in its interpretation of “VA
issue” and therefore affirm the Veterans Court’s judgment.
AFFIRMED
COSTS
No costs.
Case: 21-1798 Document: 37 Page: 8 Filed: 05/11/2022
United States Court of Appeals
for the Federal Circuit
______________________
FLORENCE KENNEDY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1798
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-256, Judge Joseph L. Falvey,
Jr., Judge Joseph L. Toth, Judge Michael P. Allen.
______________________
NEWMAN, Circuit Judge, dissenting.
The question on appeal is whether a surviving dependent, such as Mrs. Kennedy, is entitled to the one-year retroactivity of benefits authorized by the “liberalized” policy
for Dependency and Indemnity Compensation (DIC), as
provided by Fast Letter 13-04 and 38 C.F.R. § 3.114(a)(3).
After the Fast Letter changed the DIC criteria, the VA
granted Mrs. Kennedy’s application for DIC but denied the
one-year retroactivity.
The Court of Appeals for Veterans Claims (“Veterans
Court”) affirmed the denial, on the ground that the Fast
Letter was neither “a ‘law’ nor a ‘VA issue approved by the
Secretary or by the Secretary’s direction’ under 38 C.F.R.
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2 KENNEDY v. MCDONOUGH
§ 3.114(a).” Kennedy v. Wilkie, 33 Vet. App. 114, 126 (2020)
(“Vets. Ct. Op.”). Having held that Fast Letter 13-04 does
not constitute a law or a VA issue, the Veterans Court determined that it need not address whether Fast Letter 13-
04 was “liberalizing,” nor decide any “questions about what
it means for an issue to be liberalizing.”
Id. at 126 n.66.
The Veterans Court ruled that, liberalizing or not, Fast
Letter 13-04 could not trigger § 3.114(a), so “the Board did
not err in denying an effective date earlier than July 7,
2015.” Id. at 126.
On this appeal, the panel majority does not review the
ground relied on by the Veterans Court, but simply rules
that Mrs. Kennedy “forfeited her regulatory interpretation
argument.” Maj. Op. at 2. On this ground the panel majority “affirm[s] the Veterans Court’s judgment” without
reviewing the merits of Mrs. Kennedy’s appeal. Id. at 7.
The record shows no forfeiture.
Mrs. Kennedy did not “forfeit her regulatory interpretation argument”; she persistently pressed it, first with the
VA regional office, then with the Board of Veterans Appeals, next with the Court of Appeals for Veterans Claims,
and now with the Federal Circuit.
The regulatory entitlement to one-year retroactivity is
the only issue on this appeal. My colleagues hold that Mrs.
Kennedy forfeited the right to appeal the ruling of the Veterans Court. This holding departs from adjudication principles, for “the Judiciary has a responsibility to decide cases
properly before it, even those it ‘would gladly avoid.’” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194–95
(2012) (quoting Cohens v. Virginia,
19 U.S. 264, 404
(1821)).
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KENNEDY v. MCDONOUGH 3
DISCUSSION
Fast Letter 13-04 “removed some obstacles” to Dependency and Indemnity Compensation
On March 22, 2013, the Director of Pension and Fiduciary Service of the Department of Veterans Affairs 1 issued
Fast Letter 13-04, entitled “Simplified Processing of Dependency and Indemnity Compensation (DIC) Claims” for
the purpose of “rescind[ing] or clarify[ing] prior guidance
on the processing of DIC claims to ensure timely delivery
of benefits to vulnerable survivors who have an immediate
need for supplemental income following the death of a Veteran.” VA Fast Letter 13-04 at 1 (Mar. 22, 2013). The Fast
Letter states that the “Pension and Fiduciary (P&F) Service reviewed the current policies and procedures applicable to DIC claims and determined that some are obstacles
to timely delivery of benefits to eligible survivors.” Id. Fast
Letter 13-04 provides that where a service-connected disability contributed to a Veteran’s death, the VA shall “presume that it contributed substantially and materially” to
the death, and “not develop further for the causal connection between the Veteran’s service-connected disability and
the cause of death.” Id. at 2. The Fast Letter states:
1 The Pension and Fiduciary Service administers
“the pension, DIC, burial benefit and fiduciary programs”
and “develops, maintains, coordinates, and implements the
regulations, policies, and procedures governing these programs.” U.S. Department of Veterans Affairs Functional
Organization Manual, 27 (Ver. 6 2020), available at
https://www.va.gov/VA-Functional-Organization-Manual-
2020-4.pdf. This Manual is “the authoritative source that
documents the current structure, missions, functions, and
tasks” of the VA, and “describe[s] what gets done by whom,
for whom and under what authorities.” Id. at 1.
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4 KENNEDY v. MCDONOUGH
For DIC claims where the cause of death listed on
the death certificate matches one or more of the deceased Veteran’s service-connected disabilities,
take immediate action on the claim . . . without
further development regarding the cause of
death. . . . Grant service connection for the cause of
death when the death certificate shows that the
service-connected disability is the principal or contributing cause of death.
Id.
On July 4, 2016, Fast Letter 13–04 was succeeded by
M21-1 VA Adjudication Procedures Manual which incorporated Fast Letter 13-04’s guidance. See generally Military
Order of the Purple Heart v. Sec’y of Veterans Affs., 580 F.3d
1293, 1296 (Fed. Cir. 2009) (holding that a Fast Letter was
a rule under the APA that affected veterans’ substantive
and procedural rights).
The effective date for DIC is provided in 38 U.S.C.
§ 5110(g), that when DIC is awarded “pursuant to any Act
or administrative issue,” the effective date shall not be “retroactive for more than one year from the date of application.”
38 U.S.C. § 5110(g); see Ortiz v. McDonough,
6 F.4th
1267, 1273 (Fed. Cir. 2021) ( “There is dispute about what
the consequences are for the effective date of an award
when, on a claim that has been reopened, the award is
made ‘pursuant to’ a ‘liberalizing’ change. In that situation, the award’s effective date may not be earlier than the
effective date of the underlying change, but it may be as
early as one year before the request based on the change
was made”). The implementing regulation is
38 C.F.R.
§ 3.114, titled “Change of law or Department of Veterans
Affairs issue”:
(a) Effective date of award. Where . . . dependency
and indemnity compensation . . . is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the
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KENNEDY v. MCDONOUGH 5
Secretary’s direction, . . . the effective date of such
award or increase shall be fixed in accordance with
the facts found, but shall not be earlier than the
effective date of the act or administrative issue.
Where . . . dependency and indemnity compensation . . . is awarded or increased pursuant to a liberalizing law or VA issue which became effective on
or after the date of its enactment or issuance, in
order for a claimant to be eligible for a retroactive
payment under the provisions of this paragraph
the evidence must show that the claimant met all
eligibility criteria for the liberalized benefit on the
effective date of the liberalizing law or VA issue
and that such eligibility existed continuously from
that date to the date of claim or administrative determination of entitlement.
…
(3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the
law or VA issue, benefits may be authorized for a
period of 1 year prior to the date of receipt of such
request.
The only issue on this appeal is whether Mrs. Kennedy is
entitled to this one-year retroactive benefit.
The Veterans Court held that although DIC was
awarded to Mrs. Kennedy based on the changed criteria in
the Fast Letter, the Letter was not a “law” or “VA issue
approved by the Secretary or by the Secretary’s direction,”
and thus it is irrelevant whether the procedure in the Fast
Letter is “liberalizing.” Vets. Ct. Op. at 126.
My colleagues on this panel create a different ground
for dismissal. The court holds that Mrs. Kennedy “forfeited” this question of regulatory interpretation, and thus
my colleagues do not review the decision of the Veterans
Court. However, this question was debated at length and
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6 KENNEDY v. MCDONOUGH
in depth, at the Veterans Court, and now this court. Both
sides argued the statutory and regulatory interpretation.
The issue was not forfeited.
Among the questions of statutory and regulatory interpretation is the history of this case and discussion in the
briefs. Mrs. Kennedy discusses administration such as the
criteria for “rules of general applicability”; also the role of
“agency action addressed to a class of persons”; also the
meaning of “liberalizing” as used in 38 C.F.R. § 3.114(a);
also the role of “frontline” VA administration; also the effect of the Fast Letter on Veterans Service Center personnel; also various aspects of agency discretion; also the
characteristics of “interpretive rules”; also the role of the
Secretary, and delegation to the Principal Undersecretary
for Benefits; also the delegated authority of the Director of
the Pension and Fiduciary Service; also the interpretation
of “VA issue”; also the BVA application of Fast Letter 13-
04 (citing 19 decisions); also various principles of administrative law and VA practice. There was no “forfeiture” of
any issue of regulatory interpretation in this appeal. The
government addresses deference and administrative practice, but does not propose that Mrs. Kennedy “forfeited” the
appeal.
The Veterans Court erred in holding that Fast Letter 13–04 does not bind the VA
The Veterans Court held that Fast Letter 13-04 was
not a statute or a regulation and therefore is not a “law” for
the purposes of § 3.114(a). The court also held that it is not
a “VA issue approved by the Secretary or by the Secretary’s
direction.” Thus, the court held that Mrs. Kennedy has no
regulatory right to the one-year retroactivity provision of
38 C.F.R. § 3.114(a)(3). Vets. Ct. Op. at 123.
The Veterans Court held that “for the purposes of
§ 3.114(a), a ‘VA issue approved by the Secretary or by the
Secretary’s direction’ is (1) a directive from or approved by
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KENNEDY v. MCDONOUGH 7
the Secretary and (2) that is binding on VA.” Vets. Ct. Op.
at 122. The court stated “[b]ecause we hold that Fast Letter 13-04 was neither a directive from the Secretary nor a
directive created with his approval, and because we hold
the Fast Letter does not bind VA, we hold it is not a ‘VA
issue’ under § 3.114(a).” Id. at 123.
Mrs. Kennedy disputes the holding that Fast Letter 13-
04’s rule is not a “VA issue approved by the Secretary or by
the Secretary’s direction.” She argues that the Director of
Pension and Fiduciary Service was acting under delegated
authority, and the Fast Letter is liberalizing, for it authorized the grant of DIC on related criteria.
The Veterans Court stated that there was no evidence
that the Fast Letter was approved by the Secretary or at
the Secretary’s direction. The court stated that the Director of Pension and Fiduciary Service received no identified
delegation from the Secretary. The court further stated
that Mrs. Kennedy “has pointed to nothing in the law establishing the necessary delegation, nor has she provided
any factual evidence of this multilink chain of delegation
illustrating Fast Letter 13-04 was issued with the Secretary’s approval.” Id. at 124. Thus, the Veterans Court
ruled that Fast Letter 13-04 “was neither a directive from
the Secretary nor a directive created with his approval.”
Id. at 123.
The Veterans Court acknowledged that “the Secretary
has broadly delegated to the [Under Secretary of Benefits]
the ‘authority to act on all matters assigned to the Veterans
Benefits Administration.’” Id. at 124. But the court reasoned that Mrs. Kennedy did not “demonstrate that the
USB’s Secretary-delegated authority to issue Fast Letter
13-04 . . . was conveyed to the Principal Undersecretary for
Benefits who then redelegated the authority to the director
of Pension and Fiduciary Services.” Id. This issue was discussed in the Veterans Court and on this appeal; it is not
“forfeited.”
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8 KENNEDY v. MCDONOUGH
The Veterans Court also ruled that “even if there were
evidence . . . that the director . . . issued Fast Letter 13-04
with the Secretary’s approval, the Fast Letter is still not a
‘VA issue’ because it is not binding on the Agency.” Id. The
court found that “the director of Pension and Fiduciary Services did not even seek to bind all of the [Veterans Benefits
Administration], much less the rest of VA,” further stating
“one wonders how the director could bind other parts of the
Agency even if he attempted to do so.” Id. Appeal of this
ruling is not “forfeited.”
The Veterans Court held that it need not decide
whether the Fast Letter was “liberalizing,” for the court
held the Fast Letter was devoid of authority. The issue of
“liberalizing” is resolved in precedent. In Ortiz, this court
held: “The term ‘liberalizing’ when used with . . . ‘VA issue’
in the context of a ‘claim’ most naturally covers a relaxation
of a claimant’s affirmative burden.” Ortiz, 6 F.4th at 1276–
77. The Fast Letter “relaxed [Mrs. Kennedy’s] affirmative
responsibility in presenting and supporting a claim for”
DIC and met the plain meaning definition of “liberalizing.” Id. at 1277.
Fast Letter 13-04’s rule “changed concrete components
of what VA must consider ‘sufficient proof’ . . . to establish
an element of entitlement” to DIC. Id. The Fast Letter explicitly created a presumption:
If the service-connected disability was a contributory cause of death, as listed on the death certificate, presume that it contributed substantially and
materially to the Veteran’s death.
Fast Letter 13-04 at 2.
The Fast Letter removed any requirement for further
evidence of a causal connection between the Veteran’s
death and a service-connected disability recited on the
death certificate. Mrs. Kennedy did not forfeit the issue of
entitlement to this benefit.
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KENNEDY v. MCDONOUGH 9
The Veterans Court raised a question of delegated authority to issue directives aimed at only the relevant section of the agency. The Pension Management Center and
the Veterans Service Center are described as the authorities that administer Fast Letter 13-04. Whether the directive is binding on all of VA is irrelevant. The
government does not argue that the Fast Letter was not
issued by proper authority; the government’s absence of
support for the Veteran’s Court’s theory is conspicuous.
The government defined “VA issue” in briefing to the
Veterans Court, stating:
While the term “issue” is not defined by the relevant statutes and regulations, it is apparent from
the legislative and regulatory history, to include
that of 38 C.F.R. § 19.5, that any document issued
from VA, its administrations, or other staff offices
may be considered an issue. Thus, a VA fast letter
is an “issue”. However, identifying whether a particular document is a liberalizing issue depends on
whether it has a substantive effect on a benefit.
Gov’t Br. Vets. Ct., Appx65. This definition is not negated
on this appeal, although the government prevailed in the
Veterans Court on the argument that “Fast Letter 13-04 is
not a liberalizing issue under the Federal Circuit’s test as
it does not have a substantive effect on the award of benefits.” Id.
The definition of “issue” is not challenged by either
party. Mrs. Kennedy presses the argument that Fast Letter 13-04 is indeed “a liberalizing issue,” for until this Fast
letter was issued her claim for DIC was denied, and after
its issuance her claim was promptly granted. This certainly is a “substantive effect on the award of benefits.”
The record contains no semblance of her forfeiture of the
other benefits provided by the Fast Letter.
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10 KENNEDY v. MCDONOUGH
My colleagues err in holding that Mrs. Kennedy forfeited the opportunity to argue whether the Fast Letter
raises a “VA issue,” for there is no contrary holding as to
whether this Fast Letter is a VA issue. A matter that is
not in dispute cannot be deemed to have been forfeited.
Statutory and regulatory interpretations are matters
of law, and are decided de novo on appeal; the appellate
court is not precluded from stating the correct interpretation. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It
is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule
to particular cases, must of necessity expound and interpret that rule.”). The government does not dispute that
Fast Letter 13-04 and the implementing regulation are a
“VA issue” applicable to Mrs. Kennedy’s DIC claim. Even
on my colleagues’ unsubstantiated theory that Mrs. Kennedy took inconsistent positions in the past, the judicial obligation is to determine the legally correct rule.
The government defends the ruling of the Veterans
Court, stating that “Mrs. Kennedy’s ‘failure’ to establish
that Fast Letter 13-04 was approved or directed by the Secretary ‘alone dooms [her] argument.’” Gov’t Br. 29. The
government argues principles of “liberalizing changes,”
stating: “§ 3.114(a) indisputably does not say or incorporate anything about ‘general applicability,’ or lack thereof,
as a requirement, or feature, of liberalizing changes.”
Id. at 30 n.10. The government argues that “Mrs. Kennedy’s path to relief is foreclosed by the Veterans Court’s
unreviewable conclusion that Fast Letter 13-04 was not
‘approved by the Secretary’ as undisputedly required by
§ 3.114(a).” Id. at 32. All these positions are significantly
flawed, as Mrs. Kennedy demonstrates. At a minimum,
they warrant judicial attention.
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KENNEDY v. MCDONOUGH 11
CONCLUSION
It is the judicial obligation to say what the law is, to
assure that the correct law is applied, and to assure that
the law is correctly applied. The panel majority errs in
holding that Mrs. Kennedy forfeited consideration of her
appeal, leaving untouched all of these flawed rulings.
I respectfully dissent.
