United States Court of Appeals 

for the Federal Circuit ______________________ 

EVELYN H. HAYNES,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2015-7014

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-3031, Judge William A. Moorman.

______________________ 

Decided: April 29, 2015

______________________ 

EVELYN H. HAYNES, Richmond, VA, pro se.

KRISTIN MCGRORY, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent-appellee. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,

ALLISON KIDD-MILLER; DAVID J. BARRANS, CHRISTINA 

LYNN GREGG, Office of the General Counsel, United States 

Department of Veterans Affairs, Washington, DC.

______________________ 
2 HAYNES v. MCDONALD

Before NEWMAN, O’MALLEY, and WALLACH, Circuit 

Judges.

NEWMAN, Circuit Judge. 

Evelyn H. Haynes appeals from the decision of the 

United States Court of Appeals for Veterans Claims (the 

“Veterans Court”) affirming the Board of Veterans’ Appeals (the “Board”) denial of Ms. Haynes’ request to 

reopen her claim for Dependency and Indemnity Compensation (“DIC”) on the basis of new and material evidence, 

pursuant to 38 U.S.C. §5108 (2012) and 38 C.F.R. 

§3.156(a) (2012). Haynes v. McDonald, No. 13-3031, 2010 

WL 10873668 (Vet. App. Oct. 14, 2014).

DISCUSSION

Ms. Haynes and Donald S. Haynes were divorced in 

May 1995. Mr. Haynes died in August 2000. Following 

Mr. Haynes death, Ms. Haynes submitted an application 

for DIC benefits pursuant to 38 U.S.C. §1310. Section 

1310 provides for DIC benefits to a “surviving spouse.” A 

“surviving spouse” is defined in Title 38 as

a person of the opposite sex who was the spouse of a 

veteran at the time of the veteran’s death, and who 

lived with the veteran continuously from the date of 

marriage to the date of the veteran’s death (except 

where there was a separation which was due to the 

misconduct of, or procured by, the veteran without the 

fault of the spouse) and who has not remarried or (in 

cases not involving remarriage) has not since the 

death of the veteran, and after September 19, 1962, 

lived with another person and held himself or herself 

out openly to the public to be the spouse of such other 

person.

38 U.S.C. §101(3). Because Ms. Haynes was not married 

to Mr. Haynes at the time of his death, the VA Regional 

Office denied Ms. Haynes’ DIC claim for failing to meet 

the definition of “surviving spouse” as required by statute.
HAYNES v. MCDONALD 3

Ms. Haynes later submitted a request to the Regional 

Office to reopen her claim on the presentation of new 

documentation showing a decision by the Army Board of 

Correction of Military Records (“ABCMR”) to award 

Ms. Haynes an annuity as a “former spouse” under the 

Uniformed Services Former Spouse Protection Act 

(“USFSPA”). Annuities under the USFSPA are governed 

by Title 10 of the United States Code, and the definition 

of a “former spouse” thereunder, at 10 U.S.C. §1447(10), is 

different from the definition of a “surviving spouse” under 

Title 38. Further, the USFSPA permits former spouses to 

receive annuities even if they were divorced from the 

veteran at the time of the veteran’s death. See 10 U.S.C. 

§§1448(b), 1450.

The Regional Office denied Ms. Haynes’ request to reopen her DIC claim, and Ms. Haynes appealed to the 

Board of Veterans’ Appeals. The Board denied Ms. 

Haynes’ request. The Board observed Ms. Haynes’ 

acknowledgement that she was divorced from Mr. Haynes 

at the time of his death. With respect to the ABCMR’s 

decision to grant Ms. Haynes an annuity as a “former 

spouse,” the Board determined that “[r]ecognition as a 

‘former spouse’ does not relate to an unestablished fact 

necessary to substantiate the claim, namely, that the 

Appellant was married to the Veteran at the time of the 

Veteran’s death.”

The Regional Office acknowledged Ms. Haynes’ argument that because the basis for her divorce from 

Mr. Haynes was his physical abuse,1 she should not be 

required to demonstrate marriage at the time of 

Mr. Haynes’ death in order to receive DIC benefits. 

Ms. Haynes states that her claim to DIC benefits is not 

1 The record documents instances of abuse, arrests, 

restraining orders, and the like. Abuse is not disputed.

 
4 HAYNES v. MCDONALD

based on her status as a surviving spouse, but “on the 

alternative theory of entitlement under 38 C.F.R. 

§3.50(b)(1) exception for abused spouses.” Haynes, 2010 

WL 10873668, at *3. Section 3.50(b)(1) provides that a 

“surviving spouse”:

means a person of the opposite sex whose marriage to the veteran meets the requirements of 

§3.1(j) and who was the spouse of the veteran at 

the time of the veteran’s death and:

(1) Who lived with the veteran continuously 

from the date of marriage to the date of the veteran’s death except where there was a separation 

which was due to the misconduct of, or procured 

by, the veteran without the fault of the 

spouse . . . . 

The Veterans Court explained that although 

Mr. Haynes’ abusive actions were documented, §3.50(b)(1)

requires validly married spouses at the time of the veteran’s death. Haynes, 2010 WL 10873668, at *2, *4. The 

Veterans Court held that the statute provides no exception to this requirement. Id. at *3.

We discern no error in the Veterans Court’s interpretation of §3.50(b)(1) as providing no exception to the 

requirement that the surviving spouse and veteran be

married at the time of the veteran’s death. Section 

3.50(b) defines the “surviving spouse” as someone “who 

was the spouse of the veteran at the time of the veteran’s 

death,” tracking the statute. No exception to this clear 

statutory mandate and regulation is indicated. 

The Veterans Court correctly construed the law and 

regulations governing Ms. Haynes’ request for DIC. The 

decision is affirmed.

AFFIRMED

No costs.