P AMELA J. S HARP v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

N O . 01-1925

P AMELA J. S HARP, A PPELLANT ,

V.

A NTHONY J. P RINCIPI,

S ECRETARY OF V ETERANS A FFAIRS, A PPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided January 21, 2004 )

Sandra E. Booth, of Columbus, Ohio, was on the briefs for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Carolyn

F. Washington, Deputy Assistant General Counsel; and Robert W. Legg, all of Washington, D.C.,

were on the brief for the appellee.

Before KRAMER, Chief Judge, and FARLEY and STEINBERG, Judges.

KRAMER, Chief Judge: The appellant, through counsel, appeals a July 11, 2001, Board

of Veterans' Appeals (Board or BVA) decision that denied her claim for accrued benefits.

Record (R.) at 2, 8-10. The appellant and the Secretary have filed briefs, and the appellant has filed

a reply brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C.

§§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the July 2001 Board

decision.

I. Background

The veteran, the appellant's husband, served on active duty from October 1968 to March

1971. R. at 72-73. A VA regional office (RO), in a September 1995 decision, inter alia,

awarded the veteran service connection for bilateral hip replacements due to avascular necrosis

and assigned a combined disability rating of 60%, effective November 23, 1988, and 100%,

effective March 16, 1994. R. at 551-54. In a December 1996 letter, the RO notified the veteran

that, effective January 1, 1997, he was entitled to "additional benefits" for his spouse and child

and that his "disability compensation" would be amended accordingly. R. at 653; see 38 U.S.C.

§ 1115 (additional compensation for dependents); see also R. at 559-63 (December 1, 1995, RO

letter to veteran informing him of his potential entitlement to additional compensation for

dependents and that, if certain requested information regarding any dependents was not

received within one year after date of letter, RO would not be able to pay such additional

benefits prior to date that it received requested information), 634 (December 6, 1996, letter from

veteran to RO regarding dependency information).

The RO, in a November 30, 1998, letter, informed the veteran, inter alia, (1) of its May

1998 decision awarding him a rating of total disability based upon individual unemployability,

effective November 23, 1988 (see R. at 983-87), and (2) that, "[s]tarting January 1, 1997," his

disability compensation would include additional compensation "because [d]ependents [had

been] added." R. at 991-92 (emphasis omitted). The veteran subsequently appealed the RO

determination as to the January 1997 effective date for the additional compensation paid to him

for his dependents; specifically, he sought an effective date of December 1, 1988. R. at 1002-03

(December 1998 Notice of Disagreement), 1036 (May 1999 Substantive Appeal). On December

18, 1999, the veteran died. See R. at 1039. The appellant, in January 2000, submitted an

application for, inter alia, accrued benefits. R. at 1045-48. In March 2000, the RO informed

the appellant that it had denied her accrued-benefits claim (R. at 1055), and the appellant timely

appealed to the Board that RO decision (R. at 1075-76, 1104-05).

In its July 2001 decision, the Board first concluded that the appellant's claim is derivative

of the veteran's claim and that she has no "independent status or standing to bring a claim for

increased dependency allowance" prior or subsequent to the veteran's death. R. at 9. The BVA

then concluded that, because the veteran's claim was pending at his death, the appellant is

limited to receiving those benefits that accrued "within the last two years of [the veteran's] life."

R. at 10. The Board denied the appellant's claim for accrued benefits because the veteran had

received all benefits that had accrued during the two years prior to his death. Id.

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II. Analysis

Pursuant to 38 U.S.C. § 5121,

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 (hereinafter in this section . . . referred to as

"accrued benefits") and due and unpaid for a period not to exceed

two years, shall, upon the death of such individual be paid [to

certain listed individuals].

38 U.S.C. § 5121(a). Specifically, section 5121 provides for two distinct types of periodic

monetary benefits that may be available to eligible survivors. Bonny v. Principi, 16 Vet.App. 504,

507 (2002). The first type is "benefits awarded but unpaid" to a veteran under existing ratings

or decisions at the time of his or her death; an eligible survivor is entitled to receive the entire

amount of any such benefits. Id. The second type is "accrued benefits" to which a veteran was

entitled based on evidence in his or her file at the time of his or her death; an eligible survivor

is limited to receiving any such benefits that were due and unpaid to the veteran during the

two-year period prior to his or her death. Id. at 507-08. In this regard, the Veterans Benefits

Act of 2003 (VBA of 2003) was enacted on December 16, 2003. VBA of 2003, Pub. L. No.

108-183, 117 Stat. 2651. As is relevant here, the VBA of 2003 eliminated the two-year limitation

on the payment of accrued benefits but that statutory revision is not applicable in this case because

Congress explicitly made the repeal of that two-year limitation applicable with respect to deaths

occurring on or after the VBA of 2003's date of enactment (December 16, 2003). VBA of 2003

§ 104(a), (d), 117 Stat. at 2656.

On appeal, the appellant first argues that her claim is not a claim for accrued benefits

under section 5121. Rather, she contends that section 1115 benefits are intended to

compensate the dependents of veterans and that dependents therefore have a property interest

in those benefits, which is not extinguished by the veteran's death. She thus asserts that she

is entitled to receive the full amount of any retroactive section 1115 benefits based on her

veteran-husband's pending claim; specifically, she appears to be claiming entitlement to

dependency compensation for the period from December 1, 1988, to December 31, 1996.

Appellant's Brief (Br.) at 8-14; Reply Br. at 1-6. The appellant's argument is unavailing for

several reasons.

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First, the appellant has failed to demonstrate that she has standing to pursue her asserted

section 1115 claim. See Swan v. Derwinski, 1 Vet.App. 20, 22-23 (1990) (appellant must have

standing to pursue appeal); Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990) (Court adopted

jurisdictional restrictions of Article III case-or-controversy rubric). In this regard, in Redding v.

West, this Court, after quoting the language of section 1115, concluded that, "[i]f the requisite

criteria to receive 'additional compensation' under section 1115 . . . are met, the benefit flows

to only the veteran or his legal representative." Redding, 13 Vet.App. 512, 514 (2000) (appellant,

who was wife of disabled veteran, was seeking benefits under section 1115 for herself for regular

aid and attendance of another person). The Court then concluded that the appellant "ha[d] no

'personal stake in the outcome of the controversy[, i.e., the section 1115 claim,]' because, should

her claim be successful, the benefit would flow to the veteran, and not to her, in accordance

with section 1115." Id. at 515 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The Court

held that the appellant in Redding therefore had failed to demonstrate that she had standing to

pursue an appeal from an RO's denial of the section 1115 claim. See id. at 514-15. Similarly,

the appellant here has failed to demonstrate that, prior to the veteran's death, she would have

had standing to pursue a section 1115 claim. See Redding, supra. In addition, she has failed to

demonstrate that, subsequent to the veteran's death, she could have standing to pursue such a

claim. See Landicho v. Brown, 7 Vet.App. 42, 52-54 (1994) (veteran's chapter 11 disability

compensation claims "die[] with him"; substitution of party not permissible in this Court where

appellant is veteran who dies while Board's denial of veteran's claim for disability compensation

under chapter 11 of title 38, U.S. Code, is pending here on appeal).

Further, the appellant has failed to demonstrate that she has a property interest in any section

1115 benefits for the period from December 1, 1988, to December 31, 1996. In this regard, the very

status of the claim for any such benefits, i.e., pending, appears to defeat the appellant's argument

because she cannot show that she was in receipt of those benefits at any time. See Owings v. Brown,

8 Vet.App. 17, 23 (1995) (noting distinction between recipients of and applicants for benefits), aff'd,

86 F.3d 1178 (Fed. Cir. 1996) (table). The appellant also, as discussed in the preceding paragraph,

has not shown that there is any statutory source for her asserted property interest in any retroactive

section 1115 benefits. See Owings, supra.

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Moreover, the appellant's construction of the statute, i.e., that it is intended to

compensate dependents (see Appellant's Br. at 10-11), is unavailing. In this regard, section 1115

is included in chapter 11 of title 38 of the U.S. Code. That chapter governs claims for

compensation by veterans for their service-connected disabilities and by survivors for a veteran's

service-connected death. See Landicho, 7 Vet.App. at 47. Specifically, as is applicable here,

38 U.S.C. § 1110 explicates a veteran's basic entitlement to disability compensation, and

38 U.S.C. § 1114 delineates the rates of such disability compensation. 38 U.S.C. §§ 1110

(basic entitlement to wartime disability compensation), 1114 (rates of wartime disability

compensation). Section 1115 then provides that "[a]ny veteran entitled to compensation at the

rates provided in section 1114 . . . shall be entitled to additional compensation for dependents"

(38 U.S.C. § 1115 (emphasis added)), i.e., "a person who served in the active . . . service and

who was discharged or released under conditions other than dishonorable" (38 C.F.R. § 3.1(d)

(2003) (definition of "veteran")) and who already is entitled to some amount of compensation

for his service-connected disability also is entitled to an "increase" (M ERRIAM -W EBSTER'S

C OLLEGIATE D ICTIONARY 13 (10th ed. 1999) (definition of "addition" (referred to in definition

of "additional"))) in that compensation amount because he has dependents. See 38 U.S.C.

§ 101(13) (defining compensation as monthly payment made by Secretary to veteran because

of service-connected disability or to veteran's survivor because of veteran's service-connected

death prior to January 1, 1957).

Thus, the appellant has failed to account both for the placement of section 1115 within

the veterans' disability compensation provisions and the plain language of section 1115. See

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (starting point in interpreting statute

is its language); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43

(1984) (if intent of Congress is clear, that is end of matter; for court, as well as agency, must give

effect to unambiguously expressed intent of Congress); see also 38 U.S.C. § 7261(a)(1) (scope of

review); Trilles v. West, 13 Vet.App. 314, 321 (2000) (en banc). Further, the appellant has failed

to recognize that when Congress wished to provide chapter 11 benefits for someone other than a

veteran, it did so explicitly. See 38 U.S.C. §§ 1121 (basic entitlement to wartime death

compensation for death prior to Jan. 1, 1957), 1122 (rates of wartime death compensation), 1141

(basic entitlement to peacetime death compensation for death prior to Jan. 1, 1957), 1142 (rates of

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peacetime death compensation); Meeks v. West, 12 Vet.App. 352, 354 (1999) (each part or section

of statute should be construed in connection with every other part or section so as to produce

harmonious whole), aff'd, 216 F.3d 1363 (Fed. Cir. 2000).

The Court thus concludes that, because any retroactive section 1115 benefits belonged to the

veteran, not to the appellant (thus she has no property interest in any such benefits), and because the

veteran's claim was extinguished by his death, any claim to benefits that the appellant may have

would arise under section 5121. See Redding and Owings, both supra; Landicho, 7 Vet.App. at 52

(veteran's chapter 11 disability compensation claims "die[] with him"; section 5121 is only avenue

for qualified survivor to carry on, to limited extent provided in statute, veteran's claim).

As to section 5121, the appellant argues that, although that section limits accrued

benefits to which an eligible survivor may be entitled to two years of such benefits, that section

does not limit that two-year period to "the two years . . . immediately preceding the death of the

veteran." Appellant's Br. at 14. The appellant contends, therefore, that 38 C.F.R. § 3.1000(a)

is invalid "to the extent that it limits [VA's] liability [for accrued benefits] to the two[-]year period

immediately preceding the veteran's death" (Appellant's Br. at 18) and that she is entitled to

accrued benefits, i.e., dependents compensation under section 1115, for any two-year period

prior to her husband's death. Appellant's Br. at 14-19; Reply Br. at 6-8; see 38 U.S.C. § 5121;

38 C.F.R. § 3.1000(a) (2003) (accrued benefits under section 5121). In this regard, as the

appellant implicitly concedes, any claim that she may have is a claim for accrued benefits

because the veteran's claim for an earlier effective date for the payment of dependents benefits

under section 1115 was pending at his death.

The appellant's argument, however, is unavailing. This Court, relying upon, inter alia,

the language of section 5121, has stated specifically that "[t]he 'two years' [for which accrued

benefits may be paid] are limited to [the two years] immediately preceding the veteran's death."

Marlow v. West, 12 Vet.App. 548, 551 (1999) (concluding, as matter of law, that, because veteran

had been compensated fully during two years prior to his death, there were no accrued benefits

for daughter to claim), aff'd, 232 F.3d 905 (Fed. Cir. 2000) (table); see Bonny, 16 Vet.App. at 506

(discussing Marlow, supra, and stating, in addressing meaning of two-year period for accrued

benefits, that such meaning "ha[s been] clearly defined" by U.S. Court of Appeals for Federal

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Circuit and this Court); see also Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) (per curiam order)

("a decision of this Court, unless or until overturned . . . , is a decision of the Court on the date it is

issued; any rulings, interpretations, or conclusions of law contained in such a decision are

authoritative and binding as of the date the decision is issued"). Hence, given the Court's

interpretation of section 5121 as expressed in Bonny and Marlow, both supra, i.e., that the statute

limits the two-year period to the two years immediately preceding the veteran's death, the

appellant's contentions as to her entitlement to accrued benefits for any two-year period prior

to her veteran-husband's death lack merit. See Good Samaritan Hosp. and Chevron, both supra;

see also 38 U.S.C. § 7261(a)(1); Trilles, supra; cf. Chevron, 467 U.S. at 843 (power of agency to

administer congressionally created program necessarily requires making of rules to fill any gap left,

implicitly or explicitly, by Congress). The Court thus concludes that, because (as the Board

concluded and the parties do not dispute) the veteran was compensated fully under section 1115 for

the two years immediately preceding his death, there are no accrued benefits for the appellant to

claim.

Accordingly, for the reasons discussed above, the Court will affirm the July 2001 Board

decision.

III. Conclusion

Based upon the foregoing analysis, the record on appeal, and the parties' pleadings, the

July 11, 2001, Board decision is AFFIRMED.

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