Davis v. McDonough

Case: 22-1154 Document: 21 Page: 1 Filed: 09/09/2022 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ ROSE A. DAVIS, Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2022-1154 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 20-4603, Judge Joseph L. Falvey, Jr. ______________________ Decided: September 9, 2022 ______________________ ROSE DAVIS, Reading, PA, pro se. EVAN WISSER, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY. ______________________ Case: 22-1154 Document: 21 Page: 2 Filed: 09/09/2022 2 DAVIS v. MCDONOUGH Before MOORE, Chief Judge, HUGHES and STARK, Circuit Judges. PER CURIAM. Rose A. Davis appeals a decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals’ decision denying her recognition as veteran Harvey W. Kimble’s surviving spouse. Because we lack jurisdiction to hear Ms. Davis’ appeal, we dismiss. BACKGROUND Mr. Kimble served on active duty from July 1976 to July 1980. S. Appx. 11. Ms. Davis and Mr. Kimble married in July 1979 and divorced in September 2007. They did not remarry. S. Appx. 12–13. Mr. Kimble passed away in Jan- uary 2014 and, in April 2014, Ms. Davis applied for death benefits from the Department of Veterans Affairs (VA). S. Appx. 11, 13. In the application, she identified herself as Mr. Kimble’s “former spouse” and indicated they di- vorced in 2007. S. Appx. 13. A VA Pension Management Center denied the application and Ms. Davis appealed to the Board. S. Appx. 12–13. Following certification of the appeal, Ms. Davis submitted additional evidence, including two additional applications in June and September 2016. Id. In the September 2016 application, Ms. Davis identi- fied herself as Mr. Kimble’s “surviving spouse” and indi- cated the marriage did not end until Mr. Kimble’s death. S. Appx. 13. As applicable here, a surviving spouse is a person who was lawfully married to the veteran, was married to the veteran at the time of the veteran’s death, and lived with the veteran continuously from the date of marriage to the date of the veteran’s death, except where there was a sep- aration due to the misconduct of the veteran without the fault of the spouse. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b). Ms. Davis argued that she was Mr. Kimble’s surviving spouse despite their divorce and separation because (1) the Case: 22-1154 Document: 21 Page: 3 Filed: 09/09/2022 DAVIS v. MCDONOUGH 3 divorce was not valid and (2) the separation and divorce were the result of Mr. Kimble’s misconduct. S. Appx. 13– 14. The Board did not agree and denied Ms. Davis’ claim. S. Appx. 2, 11–17. The Board first found the divorce decree was valid. Af- ter reviewing the relevant Pennsylvania divorce statute and the evidence submitted by Ms. Davis, it found the di- vorce decree complied with the statute. S. Appx. 15. Con- trary to Ms. …

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