Appealed from:United States Court of Veterans Affairs Chief Judge Nebeker
Before Michel, Plager and Lourie, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge.
Respondent-Appellant, the Acting Secretary of Veterans Affairs (the "Secretary"), appeals the judgment of the Court of Veterans Appeals which vacated and remanded the Board of Veterans' Appeals' (the "Board's") denial of Claimant-Appellee Ethel L. Jones's claim for incremental benefits which allegedly accrued and were due and unpaid to her late husband, as a married veteran, when he died. Jones v. Brown, No. 93-473 (Vet. App. Mar. 27, 1996). The appeal was submitted for our decision following oral argument on January 6, 1998. Because the interpretation by the Court of Veterans Appeals of the statutory provisions governing applications and entitlements for accrued benefits was incorrect as a matter of law, we reverse.
In 1986, Willie T. Jones, a veteran, applied for and received a non-service-connected disability pension. Mr. Jones's application also sought an increased monthly payment on the ground that he was married to Ethel L. Jones and so should be paid at the higher married, rather than single, rate. The Department of Veterans Affairs (the "Department") regional office responsible for processing Mr. Jones's request did not rule upon that portion of his request because it found information in the claims file indicating that Mr. Jones had been married to two other women but found no evidence there regarding the termination of those marriages. Consequently, in February 1987, the regional office requested by letter that Mr. Jones provide evidence of the termination of these two prior marriages. Mr. Jones responded by letter indicating that these two relationships had resulted in common-law marriages and that he no longer resided with either woman. In April 1987, the regional office replied to his submission, requesting that Mr. Jones provide additional information regarding the termination of these marriages. Because Mr. Jones did not respond to this letter within one year, his claim for additional pension benefits based upon his marriage to Ethel Jones was never decided and was deemed abandoned as of April 1988. *fn1 Mr. Jones died on August 12, 1988, without having provided the requested information and, hence, without a favorable decision or a pending, unadjudicated claim.
On September 26, 1988, Mrs. Jones filed an application with the Department for death benefits. This application included a request for "accrued benefits" previously sought by Mr. Jones comprised of the difference between the disability benefits actually paid to Mr. Jones and the amount he would have received had he been paid at the higher, married, rate. Mrs. Jones's claim for a pension as the surviving spouse of a veteran was granted, but her application for Mr. Jones's "accrued benefits" was denied. The reason given was that Mr. Jones died without his claim pending.
Mrs. Jones appealed this denial to the Board which affirmed on February 11, 1993. Mrs. Jones next appealed to the Court of Veterans Appeals which vacated the Board's decision and remanded the case for further proceedings consistent with its opinion. See Jones, slip op. at 9. In its opinion, the Court of Veterans Appeals determined that, because the statute required that evidence be in the claimant's file at the date of death supporting payment at the married rate, the Board properly determined that the Department was not estopped from refusing to grant such benefits despite its concession after Mr. Jones's death that the marriage was valid for purposes of a claim for a surviving spouse's pension. See id. at 5. However, the court concluded that the Board erred by requiring that a claim for accrued benefits be pending at the date of the veteran's death rather than merely that sufficient evidence be in the claims file to support such a claim. See id. at 6. Moreover, the court also determined that, because there was some evidence of the validity of the marriage at the date of the veteran's death, the Board erred by concluding that the claim was not well- grounded. See id. Consequently, the Court of Veterans Appeals remanded the case to the Board for further factual findings regarding what evidence was in the claims file at the date of the veteran's death and whether the two prior relationships were in fact common-law marriages pursuant to 38 C.F.R. § 3.205(a)(6) (1997). See id. at 7-9. The Secretary timely appealed the judgment of the Court of Veterans Appeals to this court.
On appeal the Secretary contends that the Court of Veterans Appeals erred by not deferring to the Department's reasonable interpretation of the statutory provisions governing claims for accrued benefits. The Secretary also disputes Mrs. Jones's assertion that this court lacks jurisdiction to hear this appeal.
Jurisdiction to hear appeals from final decisions of the Court of Veterans Appeals is conferred upon this court by 38 U.S.C. § 7292 (1994). Under the express terms of that statute, however, we "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(2). Contrary to Mrs. Jones's contention, the Secretary's appeal involves no question of factual determination or application but merely the interpretation of the statutory provisions governing claims for accrued benefits, an issue clearly within our jurisdiction. Furthermore, Mrs. Jones's argument that, because a remand was ordered, the decision of the Court of Veterans Appeals is not final for purposes of review by an Article III appellate court is similarly without merit. As we have previously held, decisions of the Court of Veterans Appeals rendering an interpretation of a statutory provision and remanding for further proceedings in accordance with that interpretation constitute final and appealable decisions. Travelstead v. Derwinski, 978 F.2d 1244, 1248 (Fed. Cir. 1992) (holding that a Court of Veterans Appeals decision interpreting 38 U.S.C. § 3713, overruling the Secretary's prior interpretation and remanding back to the Board was a final and appealable decision); see also Sullivan v. Finkelstein, 496 U.S. 617, 625 (1990) (holding that a district court's remand order effectively invalidating certain regulations of the Secretary of Health and Human Services was an immediately appealable order). Accordingly, we have jurisdiction to hear this appeal and to decide the statutory interpretation question it presents.
Under 38 U.S.C. § 5101(a) (1994), " specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary" (emphasis added). Applications for accrued benefits are governed by 38 U.S.C. § 5121, which states in relevant part:
periodic monetary benefits . . . under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death ( . . . referred to as "accrued benefits") and due and unpaid for a period not to ...