The opinion
KRAMER, Judge,
concurring in part and dissenting in part:
I concur in part II.A. and C., and in part II.B. except insofar as it does not address any impact of Green v. Brown, 10 Vet.App. III, 118 (1997), and the briefing order currently outstanding in Carpenter v. Brown, 10 Vet.App. 248 (1997). I dissent with respect to part II.D. because the issue of the validity of 38 C.F.R. § 20.1106 (1996) is raised for the first time on appeal and is thus not ripe for consideration (see Rosalinas v. Brown, 5 Vet.App. 1, 2 (1993); Branham v. Derwinski 1 Vet.App. 93, 94 (1990)), and because, even if it were, that issue cannot properly be decided without addressing Green and Carpenter , both supra.
In Green, the Court held:
[A] CUE claim is not the sole way for a survivor to show the veteran’s entitlement as of the time of the veteran’s death. Rather, the survivor is given the right to attempt to demonstrate that the veteran hypothetically would have been entitled to receive a different decision on a service-connection-related issue — here the effective date of the award of the [total disability based on individual unemployability] rating — based on evidence in the veteran’s claims file or VA custody prior to the veteran’s death and the law then or subsequently made retroactively applicable.
Green, 10 Vet.App. at 118 (emphasis added). In Carpenter , the Court is dealing with a BVA decision issued during a deceased veteran’s lifetime and not the subject of appeal, which if binding on the DIC claimant would likely preclude DIC entitlement under 38 U.S.C. § 1318 because the deceased veteran lacked a full ten years of service-connected total disability immediately preceding death. Based on the above quoted Green holding, the Court in Carpenter has ordered the parties to address whether that BVA decision now precludes demonstrating that “the veteran hypothetically would have been entitled to receive a different decision on a service-connection-related issue — here the effective date of the award of [ ] total disability.”
In the event that the Court in Carpenter were to determine that such a BVA decision does not preclude the DIC claimant from now demonstrating the deceased veteran’s ten-year total disability immediately preceding death, to the extent that 38 C.F.R. § 20.1106 may be read as precluding consideration of entitlement under 38 U.S.C. § 1318 because of a prior unfavorable disposition during the veteran’s lifetime, such preclusion would be violative of section 1318’s “entitled to receive” provision and thus invalid.
Because I believe that the Court should not be addressing the validity of section 20.1106 without a preceding BVA decision as to that regulation’s application to the facts before us and because I do not think the majority can properly address the validity of section 20.1106 without first addressing the Green and Carpenter issues, I respectfully dissent.