In one of the more interesting decisions to come out of the Court of Appeals for Veterans Claims this year, the Court has determined that the newest VA regulation on allowing a surviving spouse to “substitute” into a veteran’s case after death does not violate the Equal Protection Clause of the Constitution.
Prior to October 2008, surviving spouses could not “substitute” into cases after the death of the veteran. As such, they needed to start the entire case over again, and were prohibited from adding any new supporting evidence into the record. Obviously, this put the surviving spouse at a major disadvantage. Congress corrected this problem by enacting a new law that allowed “substitution,” such that the surviving spouse could simply jump into the case. However, the new rule only applied where the veteran died after October 2008.
Copeland v. Shinseki
In Copeland v. Shinseki, No. 11-2408, the veteran died before October 2008, and VA refused to allow the surviving spouse to substitute into the case. The surviving spouse argued that the new law was unconstitutional in that it only applied in cases where the veteran died after October 2008, therefore violating the Equal Protection Clause of the Constitution. The Veterans Court rejected this argument, finding that the October 2008 effective date did not violate the Equal Protection Clause.
In reaching its holding, the Court implicitly found that it had the authority to declare an act of Congress unconstitutional. This, of course, would be a very broad power for the Court to possess. In a very interesting dissent, Judge Hagel pointed out that the Court likely does not have the authority to do declare a law enacted by Congress unconstitutional. The question of whether the Court has this power is almost certain to be an issue that the Court will have to re-examine in the future.
Benefits for Spouses of Veterans
Bosley & Bratch consults with veterans and their families every day about VA benefits. We are happy to speak with you about benefits available to spouses or what to do if your husband or wife has passed away while a VA claim is pending. If you need assistance, call us at (800) 953-6224 or complete our free veterans benefits case evaluation form.