United States Court of Appeals 

for the Federal Circuit ______________________

JOHN J. BATCHER,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2019-2116

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-638, Chief Judge Margaret C. 

Bartley, Judge William S. Greenberg, Judge Joseph L. 

Toth.

______________________

Decided: September 11, 2020

______________________

KATHERINE A. HELM, Dechert LLP, New York, NY, argued for claimant-appellant. Also argued by LUKE REILLY, 

Philadelphia, PA. 

 JOSHUA E. KURLAND, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by ETHAN P. DAVIS, CLAUDIA BURKE, ROBERT 

EDWARD KIRSCHMAN, JR.; MEGHAN ALPHONSO, Y. KEN LEE, 

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2 BATCHER v. WILKIE

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC. 

 ______________________

Before DYK, CLEVENGER, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge.

This case is about apportionment of a veteran’s disability compensation benefits. The veteran, John J. Batcher, 

appeals a decision of the U.S. Court of Appeals for Veterans 

Claims upholding the Board of Veterans’ Appeals’ grant of 

such apportionment to his now ex-wife, Roberta Batcher, 

under 38 U.S.C. § 5307 and its implementing regulations. 

Mr. Batcher contends that by affirming this apportionment, the Veterans Court decision improperly superseded 

a preexisting state-court-sanctioned separation agreement

absolving Mr. Batcher of all spousal maintenance obligations. Because Mr. Batcher’s preclusion, preemption, and 

statutory construction arguments lack merit, we affirm.

I

A

Section 5307 of title 38 entitles certain dependents of 

veterans to “apportionment” of any compensation the veteran is receiving from the Department of Veterans Affairs (VA). 38 U.S.C. § 5307. With apportionment, the 

dependent(s) directly receive a portion of the veteran’s compensation, which would otherwise go entirely to the veteran. As relevant here, § 5307 permits the VA Secretary to 

prescribe regulations for apportioning benefits “if the veteran is not living with the veteran’s spouse.” Id.

§ 5307(a)(2). As authorized, VA has prescribed two types 

of apportionment: general apportionment and special apportionment. 38 C.F.R. §§ 3.450, 3.451. General apportionment is available “[i]f the veteran is not residing with 

his or her spouse . . . and the veteran is not reasonably discharging his or her responsibility for the spouse’s . . .

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BATCHER v. WILKIE 3

support.” 38 C.F.R. § 3.450(a)(1)(ii). Special apportionment, on the other hand, turns not on the veteran’s degree 

of support but on the dependent’s showing of hardship. 

“[W]here hardship is shown to exist,” compensation may be 

“specially apportioned . . . on the basis of the facts in the 

individual case as long as it does not cause undue hardship 

to the other persons in interest.” Id. § 3.451. This appeal 

stems from the Board granting Ms. Batcher entitlement to 

special apportionment of Mr. Batcher’s VA disability compensation benefits for the period when the two were still 

married but living separately.

B

1

Mr. Batcher served on active duty in the U.S. Army in 

the 1960s. In 1972, Mr. and Ms. Batcher married. Almost 

thirty years later, in 2001, they separated. In 2002, 

Mr. Batcher brought a Divorce Action in the Supreme 

Court of New York, Suffolk County (hereinafter “New York 

court”), which he later converted to a Separation Action. In 

March 2005, the New York court issued a Judgment of Separation ordering various stipulated terms, including that 

Mr. Batcher would pay Ms. Batcher $300 per month in 

spousal maintenance.

In September 2006, VA first granted Mr. Batcher service connection for various disabilities for which he began 

receiving monthly disability compensation. The following 

month, prompted in part by a contempt motion 

Ms. Batcher filed, the New York court held a hearing 

where both parties appeared with counsel. The court noted 

that the parties had reached a proposed settlement, which 

Ms. Batcher’s counsel proceeded to read into the record 

(hereinafter “the 2006 Stipulation”). As relevant, the 2006 

Stipulation read:

In settlement of the motions pending before the 

Court the parties stipulate and agree as follows:

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4 BATCHER v. WILKIE

On or before but in no case later than December 6, 2006 [Mr. Batcher] shall pay to [Ms. Batcher]

the sum of $7,000 . . . .

In consideration therefore, all maintenance 

and health insurance and obligations owing from 

the plaintiff [Mr. Batcher] to [Ms. Batcher] shall

cease.

J.A. 489. The New York court asked whether the $7,000 

payment “would resolve the past maintenance, which is 

due and owing and future maintenance.” J.A. 490. 

Ms. Batcher’s counsel confirmed this was correct, and the 

parties also confirmed that the 2006 Stipulation would 

modify the 2005 Judgment of Separation, “resolv[ing] the 

issues with respect to maintenance.” J.A. 492. After Mr. 

and Ms. Batcher’s allocutions, the New York court “so-ordered” the 2006 Stipulation. Shortly thereafter,

Mr. Batcher paid Ms. Batcher the agreed-to $7,000.

Several years later, in December 2010, following 

Mr. Batcher’s relocation, a Pennsylvania state court issued 

a Divorce Decree formally divorcing the Batchers.

2

Meanwhile, in April 2008, Ms. Batcher had filed a VA 

claim for apportionment of Mr. Batcher’s disability compensation benefits. VA notified Mr. Batcher and requested 

his financial information in order to assess whether apportionment would cause him undue hardship. Mr. Batcher 

responded, objecting to apportionment solely on the 

grounds that the 2006 Stipulation “precluded 

[Ms. Batcher] from making any and all future claims for 

maintenance or support against [him].” J.A. 580.

In August 2009, the VA regional office denied 

Ms. Batcher’s claim for apportionment—despite her 

demonstrated financial need—based on the 2006 Stipulation. The regional office reasoned that by entering the 2006 

Stipulation, Ms. Batcher had “voluntarily renounced any 

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BATCHER v. WILKIE 5

maintenance or support from [Mr. Batcher] including future claims.” J.A. 555, 558. Ms. Batcher filed a Notice of 

Disagreement. The regional office maintained its denial of 

apportionment in June 2010, stating again that the 2006 

Stipulation and $7,000 payment resolved all past and future maintenance obligations. Ms. Batcher then appealed 

to the Board of Veterans’ Appeals.

In December 2015, after first remanding for the regional office to comply with certain procedural requirements, the Board granted Ms. Batcher special 

apportionment from the date of her claim until the date of 

her divorce—that is, from April 2008 to December 2010. 

The Board recounted the various state court proceedings

and found that there was “inadequate objective evidence” 

to determine whether Mr. Batcher was reasonably discharging his support responsibility during the claim period 

for purposes of general apportionment under 38 C.F.R. 

§ 3.450. J.A. 26–28. But the Board found that the evidence 

did support special apportionment under 38 C.F.R. § 3.451 

because Ms. Batcher had shown a hardship—with expenses exceeding her income and reported periods of homelessness—and Mr. Batcher had not shown any hardship of 

his own, having failed to provide any financial information 

when he had the opportunity. With these criteria met, the 

Board granted Ms. Batcher entitlement to special apportionment of Mr. Batcher’s disability compensation for the 

period up to the couple’s divorce. Mr. Batcher appealed 

that decision to the Veterans Court.1

1 Because the allowance of Ms. Batcher’s claim 

would result in a decreased benefit to Mr. Batcher, 

Mr. Batcher was able to appeal this “simultaneously contested claim.” See J.A. 25; see also 38 C.F.R. §§ 20.3(l) (definition), 19.100–19.102 (notice of appeal rights). 

Ms. Batcher was notified of the appeal but did not move to 

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6 BATCHER v. WILKIE

A divided panel of the Veterans Court affirmed the 

Board’s decision to grant apportionment. Batcher v. Wilkie, 

31 Vet. App. 138 (2019). Mr. Batcher argued only that 

Ms. Batcher had waived her right to seek apportionment 

by entering the New York court-ordered 2006 Stipulation 

and accepting the $7,000 lump sum payment in lieu of future maintenance payments. Id. at 144. The panel majority disagreed, holding that “a domestic relations separation 

agreement sanctioned by a state court . . . plays no role in 

VA’s determination of entitlement to special apportionment.” Id. at 140. “To the extent that such an agreement 

purports to preclude a veteran’s spouse from seeking apportionment of a veteran’s VA benefits, the veteran’s remedy to make himself or herself whole lies with the state 

court.” Id. The Veterans Court reasoned that “[w]hether 

Ms. Batcher contracted away her right to file a claim for 

special apportionment in exchange for adequate consideration from Mr. Batcher . . . is a matter of contract law best 

decided by a state court.” Id. at 144. Thus, Mr. Batcher’s 

remedy lay in state court where he could sue for breach of 

contract or seek modification of the separation agreement—not with VA. Id. at 145.

Dissenting Judge Greenberg would have held that 

Ms. Batcher was not entitled to apportionment because she 

became Mr. Batcher’s ex-spouse before the Board decided 

the claim, and the apportionment statute does not apply to 

ex-spouses. Id. at 146. Further, he felt that Ms. Batcher 

should not have been permitted to obtain a “modification of 

a properly entered state sanctioned contract . . . by the misuse of a VA order.” Id. at 147.

intervene at the Veterans Court. Batcher v. Wilkie, 31 Vet. 

App. 138, 142 n.5 (2019).

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BATCHER v. WILKIE 7

The Veterans Court entered judgment against 

Mr. Batcher on May 20, 2019. Mr. Batcher timely appealed 

to this court. We have jurisdiction under 38 U.S.C. § 7292.

II

“Our jurisdiction to review Veterans Court decisions is 

limited by statute.” Sullivan v. McDonald, 815 F.3d 786, 

788 (Fed. Cir. 2016). We review de novo the Veterans 

Court’s interpretation of statutes and constitutional provisions. Wanner v. Principi, 370 F.3d 1124, 1128 (Fed. Cir. 

2004). And we “may set aside any regulation or interpretation thereof if we find it: (1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law; (2) contrary to constitutional right, power, privilege, 

or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or 

(4) without observance of procedure required by law.” Sullivan, 815 F.3d at 789 (citing 38 U.S.C. § 7292(d)(1)).

We agree with the Veterans Court’s framing of the central issue as “whether and to what extent a separation 

agreement sanctioned by a state court during divorce proceedings affects a spouse’s entitlement to special apportionment of a veteran’s VA benefits.” Batcher, 31 Vet. App. 

at 140. And we also agree with its answer: not at all.2 Id. 

Mr. Batcher’s three challenges to that conclusion are unavailing.

A

Mr. Batcher first argues that the Veterans Court’s “refusal to consider [the 2006 Stipulation] to forego apportionment of [his] benefits is barred by res judicata.” 

2 We have no occasion to consider whether an express waiver by the beneficiary of the right to special apportionment could be or must be enforced by VA as a 

matter of federal law.

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8 BATCHER v. WILKIE

Appellant’s Br. 12 (capitalization altered to sentence case). 

Mr. Batcher clarifies in his reply brief that in fact he is asserting a more general argument that the Veterans Court 

“ignored the preclusive effect” of the 2006 Stipulation. Reply Br. 15 n.6. The gist of Mr. Batcher’s preclusion argument is that Ms. Batcher should have been denied special 

apportionment because of the 2006 Stipulation. This argument, lacking foundation in any particular preclusion doctrine, falls flat.

First, contrary to Mr. Batcher’s repeated assertions, 

the Veterans Court did not “refuse[] to consider” the 2006 

Stipulation. Appellant’s Br. 12, 13, 19. It explicitly identified Mr. Batcher’s argument as centering on the Board’s

purported error in failing to consider the effect of the 2006 

Stipulation. Batcher, 31 Vet. App. at 142. The Veterans 

Court simply (and correctly, we hold) rejected his argument 

that Ms. Batcher waived her right to seek apportionment 

when she entered the 2006 Stipulation.

The 2006 Stipulation does not warrant the preclusive 

effect Mr. Batcher would give it primarily because that 

state-court-ordered stipulation did not extinguish

Ms. Batcher’s independent right to claim apportionment of 

federal benefits to which she was entitled, i.e., a portion of 

Mr. Batcher’s VA disability compensation. By its terms, 

the 2006 Stipulation refers only to releasing “all maintenance . . . and obligations owing from the plaintiff

[Mr. Batcher] to [Ms. Batcher].” J.A. 489 (emphasis 

added). Apportioned VA benefits, by definition, cannot be 

owed from Mr. Batcher. Rather, they are a federal benefit 

available from VA to any qualifying dependent of a veteran. 

While apportionment was only an option for Ms. Batcher 

because of her relationship to Mr. Batcher, she was independently entitled to seek this federal benefit from VA. See 

Belton v. Principi, 17 Vet. App. 209, 211 (2003) (“Although 

arising from a veteran’s benefits, an apportionment is an 

entity legally separate from those benefits. Thus, when 

veterans’ dependents file on their own behalf for an 

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BATCHER v. WILKIE 9

apportionment, they seek to exercise their right to an apportionment.’’ (internal quotation marks omitted)).

Notably, ever since Mr. Batcher began receiving VA 

disability compensation benefits, his monthly payments 

have included an additional amount specifically because he 

reported having a spouse. E.g., J.A. 140, 669, 719 (specifying that each payment “includes an additional amount for 

your spouse”); see 38 U.S.C. § 1115 (entitling veterans with 

a sufficient disability rating to additional compensation for 

dependents). Those benefits were not meant to support 

Mr. Batcher alone, so it follows that Ms. Batcher should 

have a federal mechanism by which to claim a portion of 

those benefits while “not living with” her husband. See

38 U.S.C. § 5307(a)(2).

As the Veterans Court concluded, Ms. Batcher satisfied 

all of the criteria for special apportionment. Batcher, 

31 Vet. App. at 144. As a veteran’s spouse (at the time of 

her claim) who suffered hardship during the relevant period while living apart from the veteran, and with no evidence that apportionment would unduly harm others,

Ms. Batcher was entitled to apportionment. See 38 U.S.C. 

§ 5307(a)(2); 38 C.F.R. § 3.451. With this showing, 

Ms. Batcher was owed a portion of Mr. Batcher’s disability 

compensation from VA. The 2006 Stipulation—to which 

VA, of course, was not a party—does not change that, notwithstanding the VA regional office’s contrary belief.

To the extent that Mr. Batcher believes Ms. Batcher 

has breached the terms of the 2006 Stipulation, or believes 

a modification of those terms is now warranted following 

Ms. Batcher’s apportionment, his remedy lies in state 

court—not in this court, or with VA.3

3 We disagree in one respect with the Veterans 

Court’s reasoning related to Mr. Batcher’s waiver/preclusion argument. The Veterans Court observed that two 

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10 BATCHER v. WILKIE

B

Next, Mr. Batcher argues that the Veterans Court’s decision impermissibly preempts New York state domestic relations law. This preemption argument fails for reasons 

similar to those undermining his preclusion argument: this 

is a federal agency adjudication of a claim for federal benefits, which does not conflict with any state domestic relations law.

All three types of preemption “work in the same way: 

Congress enacts a law that imposes restrictions or confers 

rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law,” and—

in most areas other than domestic relations—“therefore 

the federal law takes precedence and the state law is 

preempted.” Murphy v. Nat’l Collegiate Athletic Ass’n, 

138 S. Ct. 1461, 1480 (2018) (discussing “conflict,” “express,” and “field” preemption). But, as Mr. Batcher is 

quick to point out, there is a “presumption against preemption of state laws governing domestic relations.” 

orders entered by the New York court after the 2006 Stipulation “appear to belie” Mr. Batcher’s assertion that 

Ms. Batcher waived her right to seek apportionment. 

Batcher, 31 Vet. App. at 144 n.8. But these orders to release to Ms. Batcher half of Mr. Batcher’s retirement funds 

and half of his military retired pay benefits did not relate 

to ongoing maintenance obligations. The December 2006 

retired pay order was expressly “[t]o accommodate the 

marital property distribution,” J.A. 505; and the October 

2007 order was a continuation of efforts to execute the retirement funds distribution originally agreed to in the 2005 

Judgment of Separation, see J.A. 484. Thus, neither sheds 

light on how the parties or the New York court viewed the 

2006 Stipulation’s release of maintenance obligations. And 

our rejection of Mr. Batcher’s preclusion argument here 

does not turn on the existence of these later orders.

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BATCHER v. WILKIE 11

Hillman v. Maretta, 569 U.S. 483, 490 (2013) (internal quotation marks omitted). And “[b]efore a state law governing 

domestic relations will be overridden, it must do major 

damage to clear and substantial federal interests.” Rose v. 

Rose, 481 U.S. 619, 625 (1987) (internal quotation marks 

omitted).

But the anti-preemption principles embodied in this 

presumption only come into play if the asserted federal and 

state laws actually conflict. See, e.g., Murphy, 138 S. Ct. 

at 1480 (requiring a state law that “conflict[s] with the federal law”); Rose, 481 U.S. at 625 (stating the rule for “when 

state family law has come into conflict with a federal statute” (emphasis added)). In the domestic relations context, 

this conflict typically manifests as a state law or state court 

order requiring a certain disposition of a veteran’s federal 

benefits payments. See generally Howell v. Howell, 137 

S. Ct. 1400 (2017) (reversing a state court order requiring 

a veteran to reimburse his former spouse for the decrease 

in military retirement pay caused by the veteran’s post-divorce waiver of his retired pay); Rose, 481 U.S. 619 (affirming a state court holding a veteran in contempt for failing 

to pay child support owed under a state law authorizing the 

award of VA disability benefits as child support).

We see no similar conflict here. In ordering the 

2006 Stipulation, the New York court did not address the 

division of Mr. Batcher’s freshly acquired VA disability 

benefits. Mr. Batcher argues that those benefits must have 

been contemplated as part of the “maintenance” obligations Ms. Batcher agreed to release, but it is undisputed 

that the New York court did not expressly order any disposal or division of the VA disability benefits. Without any

particular New York state law being invoked as applying 

to the VA benefits at issue, the only supposed conflict 

Mr. Batcher has identified is that the Veterans Court’s decision allows a federal statute to preempt the “principle of 

New York state law” that “parties in a separation or divorce 

proceeding are free to contractually determine the division 

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12 BATCHER v. WILKIE

of a veteran’s disability benefits.” Appellant’s Br. 25. Even 

assuming preemption can rest on a conflict with such a 

nebulous “principle” of state law, the Supreme Court has 

already rejected the idea that separating couples contracting in this area can rely on a fixed amount of future VA 

benefits. See Howell, 137 S. Ct. at 1405 (“State courts cannot ‘vest’ that which (under governing federal law) they 

lack the authority to give.”); id. at 1406 (holding state court 

order preempted but noting that “a family court, when it 

first determines the value of a family’s assets, remains free 

to take account of the contingency that some [federal benefits] might be waived, or . . . take account of reductions in 

value when it calculates or recalculates the need for 

spousal support”). Given the ever-present possibility that 

the parties’ federal benefits might shift, we fail to see how 

the Veterans Court’s decision here impairs the parties’ 

ability to contract.

C

Finally, Mr. Batcher argues that the Veterans Court 

erroneously applied 38 U.S.C. § 5307 and its implementing 

regulations to apportion benefits to Ms. Batcher, who he 

says was no longer his “spouse” at the time she filed her 

apportionment claim, because by then the two were legally 

separated. See id. § 5307(a)(2) (permitting apportionment

“if the veteran is not living with the veteran’s spouse”). To 

the extent this argument has been preserved,4 we reject it 

as well.

4 Mr. Batcher never seems to have challenged 

whether Ms. Batcher, as a factual matter, met the statutory and regulatory criteria for seeking apportionment—

including that she was his spouse. See J.A. 580, 596 (responding to notice of request for apportionment); Batcher, 

31 Vet. App. at 144 (noting that “Mr. Batcher does not 

challenge any of the Board’s specific findings regarding 

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BATCHER v. WILKIE 13

Mr. Batcher presents no authority, and we know of 

none, to support his position that the Batchers’ legal separation under the 2005 Judgment of Separation “turned 

Ms. Batcher from a ‘spouse’ into a ‘former spouse.’” Appellant’s Br. 27. Title 38 defines “spouse” as “a person of the 

opposite sex who is a wife or husband.” 38 U.S.C. 

§ 101(31).5 And “[i]n determining whether or not a person 

is or was the spouse of a veteran, their marriage shall be 

proven as valid” for the purposes of veterans’ benefits “according to the law of the place where the parties resided at 

the time of the marriage.” 38 U.S.C. § 103(c); see 38 C.F.R. 

§ 3.1(j).

Under New York law, a judgment of separation does 

not dissolve the marriage; it simply marks the end of the 

couple’s cohabitation and may modify certain spousal obligations. Compare N.Y. Dom. Rel. Law § 170 (McKinney) 

(authorizing “[a]n action for divorce . . . to procure a judgment divorcing the parties and dissolving the marriage” 

(emphasis added)), with N.Y. Dom. Rel. Law § 200 (McKinney) (authorizing an action “to procure a judgment 

Ms. Batcher’s entitlement to special apportionment”). But 

because the Veterans Court’s dissenting opinion focused on 

this statutory interpretation question, we will briefly address it.

5 As Mr. Batcher points out, the Supreme Court has 

indeed declared a similar definition unconstitutional for 

discriminating against legally married same-sex couples. 

See United States v. Windsor, 570 U.S. 744, 752, 775 (2013) 

(invalidating 1 U.S.C. § 7’s (Defense of Marriage Act) definition of “spouse” as “refer[ring] only to a person of the opposite sex who is a husband or a wife”). But, contrary to 

Mr. Batcher’s assertion, that ruling did not render totally 

inoperative statutory definitions like § 101(31) that can 

still be applied in a way that does not offend the Constitution, i.e., without the “opposite sex” restriction.

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14 BATCHER v. WILKIE

separating the parties from bed and board, forever, or for a 

limited time”); see People ex rel. Comm’rs of Pub. Charities 

& Corr. v. Cullen, 47 N.E. 894, 895 (N.Y. 1897) (noting that 

a decree of separation “did not dissolve the marriage,” and 

the “parties still remained husband and wife in the eye of 

the law,” although the “duties and obligations of the marriage relation were radically affected and wholly changed”).

If anything, then, the 2005 Judgment of Separation simply

corroborates Ms. Batcher’s eligibility for apportionment, 

proving that the two were not living together when she 

filed her claim in 2008. It did not change Ms. Batcher’s legal status as Mr. Batcher’s spouse—a fact that Mr. Batcher 

apparently recognized, given that he later sought and obtained a divorce decree in 2010.

Mr. Batcher’s argument in this court—based on 

Ms. Batcher’s status at the time of filing her claim—diverges somewhat from Judge Greenberg’s reasoning in dissent, which depended on Mr. and Ms. Batcher having 

legally divorced before the Board acted on the apportionment claim in 2015. See Batcher, 31 Vet. App. at 146. Such 

reasoning would needlessly punish claimants who are eligible for benefits at the time they apply but whose claim 

then enters a lengthy period of Board review over which 

they lack any control. The Veterans Court correctly 

deemed Ms. Batcher eligible for apportionment as 

Mr. Batcher’s “spouse” from the time she filed her claim to 

the date of the Divorce Decree.

III

We have considered Mr. Batcher’s remaining arguments and find them unpersuasive. For the foregoing reasons, the judgment of the Veterans Court is affirmed.

AFFIRMED

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