Opinion

Carpenter v. West

  • 11 Vet. App. 140
  • 1998 U.S. Vet. App. LEXIS 348
  • 1998 WL 134007
Court
United States Court of Appeals for Veterans Claims
Filed
Mar 24, 1998
Status
Published
Author
Ivers
On the bench
Ivers, Kramer, Steinberg
Cited by
25 cases
Authority
More cited than 6.4%

holding that Court could not then consider under section 1318 appellant’s claim of CUE against 1984 BVA decision because “appellant’s section 1318 DIC claim specifically raised CUE only as to the 1983 RO decision” and new CUE Act making prior BVA decision also subject to CUE attack, 38 U.S.C. § 7111, requires that the claimant have submitted such CUE claim to Board

How later courts described this case

  • holding that Court could not then consider under section 1318 appellant’s claim of CUE against 1984 BVA decision because “appellant’s section 1318 DIC claim specifically raised CUE only as to the 1983 RO decision” and new CUE Act making prior BVA decision also subject to CUE attack, 38 U.S.C. § 7111, requires that the claimant have submitted such CUE claim to Board
  • applying In re Fee Agreement of Smith for purpose of determining whether subsequent BVA adjudication subsumed pri- or RO decision so as to insulate that RO decision from collateral attack on grounds of CUE
  • recognizing that the result in Green hinged in part on the interpretation of the regulation
  • “the new section 7111 does not on its face apply unless the claimant has already submitted to VA a claim of CUE”

Written by the judges who cited it.

The opinion

IVERS, Judge,

concurring:

Based on the broad language of 38 C.F.R. § 19.196 , I must concur in the majority’s application of the dicta in Green (Doris) v. Brown, 10 Vet.App. 111, 118 (1997), to arrive at the conclusion that the appellant is entitled to a review of her claim for benefits under 38 U.S.C. § 1318 without regard to any disposition of the issues raised by the *148 claim during her husband’s lifetime. The question remains, however, as to the starting point for review upon remand. Since the issue articulated by the appellant in her § 1318 claim is CUE in the 1983 RO decision, does review begin at that point? Under the “entitled to receive” provision of § 1318, must the starting point of analysis be the veteran’s date of discharge from service in 1945, or the date of the first award of TDIU in 1975, or August 19, 1981, ten years before the veteran’s death? Furthermore, if a complete review is to be made without regard to any disposition during the veteran’s lifetime, must VA revisit those dispositions that were favorable to the veteran as well as those that were not? These questions are among those to be addressed by the Board on remand.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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