Veterans Court Finds New Substitution Rule Doesn’t Violate Constitution

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.

What is Pancreatitis?

Pancreatitis and VA Disability What is Pancreatitis? Pancreatitis is inflammation in the pancreas....

More Articles

Permanent and Total VA Disability Ratings for PTSD

What is Post Traumatic Stress Disorder (PTSD)? Post-traumatic stress disorder (PTSD) is a mental health condition that develops in some people who have experienced a shocking, scary, or dangerous event. Symptoms of PTSD usually begin within three months of the...

Depression And Your VA Claim

Depression can negatively affect every aspect of your life: how you feel, think, sleep, function, and interact with others. According to the National Alliance on Mental Health Issues, about 14% of veterans suffer from depression. Depression is one of the most common...

Four Tips On How To Get The Highest PTSD Rating

If you have been fortunate enough to have been granted service connection for PTSD, then you have probably been given a disappointingly low rating.  This is a very common situation so you are not alone. The VA regularly underrates PTSD claims.  In the...

Recent Appeals Decision Helps Veterans Prove In-Service Personal Assault

A recent decision from the Court of Appeals for Veterans Claims may make it easier for veterans claiming disability due to PTSD to prove in-service personal assault. There are special rules in place where in-service assault is involved. The VA knows it can be hard for...

FREE CASE EVALUATION 

  • Hidden
  • Hidden
  • Hidden
  • This field is for validation purposes and should be left unchanged.

More Great Reads

How to Qualify for Disability Benefits for Surgery

VA Disability Ratings for Surgery How to Qualify for Disability Benefits for Surgery Veterans may be able to get disability benefits if they have had surgery or received treatment at a VA hospital, approved hospital, or outpatient center for a disability related to...

Protecting Your Benefits – Avoid Being Scammed!

Have you had a suspicious call from a person or organization stating they were with or a representative of the Department of Veterans (VA) and offering a large payout for a small fee? If so, you could be getting scammed. Click here to read an article from the VA that...

Veterans Court Finds New Substitution Rule Doesn’t Violate Constitution
Veterans Court Finds New Substitution Rule Doesn’t Violate Constitution

Take our quiz to find out your money type

Stay in the know

Buy The Book

Join the thousands of women who have transformed their lives

Follow Us

Join the community of really smart women like yourself

Join Our Newsletter

Get the latest tips and tricks to own your future!

More Great Reads

How to Qualify for Disability Benefits for Surgery

VA Disability Ratings for Surgery How to Qualify for Disability Benefits for Surgery Veterans may be able to get disability benefits if they have had surgery or received treatment at a VA hospital, approved hospital, or outpatient center for a disability related to...

Protecting Your Benefits – Avoid Being Scammed!

Have you had a suspicious call from a person or organization stating they were with or a representative of the Department of Veterans (VA) and offering a large payout for a small fee? If so, you could be getting scammed. Click here to read an article from the VA that...