Petition for Writ of Certiorari — Haines v. West, 119 S. Ct. 1249 (1999) (No. 98-826)

r Supreme Court, U.S.

FiIle®oD

98 826 NV 18196

No. ts. ,c. ve THE CLERK

In The

Supreme Court of the United States

October Term, 1998

o

BARBARA HAINES,

Petitioner,

TOGO D. WEST, JR.,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

e

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

¢

PETITION FOR WRIT OF CERTIORARI

+

KENNETH M. CARPENTER

Counsel of Record

CARPENTER, CHARTERED

1525 S. Topeka Blvd.

P.O. Box 2099

Topeka, KS 66601-2099

(785) 357-5251

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2851

QUESTION PRESENTED

Whether a veteran’s cause of action based on a claim

of clear and unmistakable error survives the veteran’s

death.

“Tha ae a

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS.....

TABLE OF AUTHORITIES .

OPINIONS BELOW ....<lsaseeees

STATEMENT OF JURISDICTION...

PROVISIONS INVOLVED.........

STATEMENT OF THE CASE..

REASONS FOR GRANTING THE WRIT

CONCLUSION

Page

TABLE OF AUTHORITIES

Page

CASES

Anglin v. West, 11 Wena. SE1 CIGSED. once ccccccccs 13

Brown v. Gardner, 513 U.S. 115 (1994) ......... eer

Camphor v. Brown, 8 Vet.App. 272 (1995) ............ 14

Cates v. Brown, 5 Vet.App. 399 (1993)...... cecunae aun ee

Chevron v. U.S.A., Inc. v. Natural Resources Defense,

as Wy eS a acccccecaen 15

Curtis v. Brown, 8 Vet.App. 104 (1995)............... 14

Donovan v. West, 1998 WL 697228 (VORAID.) sccccce: 12

Hodge v. West, 1998 WL 635515 (Fed. Cir.)............9

Karnas v. LDerwinski, 1 Vet.App. 308 (1991)........... 13

Landicho v. Brown, 7 Vet.App. 42 (1994)........ 8, 13, 14

Look v. Derwinski, 2 WeL.Ape. 157 (1992) ........... 5

Matter of Wood, 643 F.2d 188 (5th Cir. 1980).......... 9

Oppenheimer v. Derwinski, 1 Vet.App. 370 (1991) ...... 5

Penny v. Brown, 7 Vet.App. 348 (1995)............... 14

Schreiber v. Sharpless, 110 U.S. 76 (1884)......... eee

Smith v. Brown, 10 Vet.App. 330 (1997)........... 13, 15

Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994)......... Y

Thomson v. Derwinski, 1 Vet.App. 251 (1991) .......... 5

United States v. NEC Corporation, 11 F.3d 136 (11th

ES orn acs Cie Oued Senses 68666000 KA. 10

Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996),

cert. denied, 117 S.Ct. 2478 (1997)............ 8, 13, 14

TABLE OF AUTHORITIES —- Continued

Page

c

28 U.S.C. § 1254(1) |

Moe Tot S.C ener ttre ye 12

§ U.S.C S 715(a) 4

8 U.S.C. § 5101-5103 3

8 USC. § 5109A 1, 6, 7, 10, 11

8 U.S.C. § 5121 11, 14

Ik LTS ¢ & 7104(a) . passim

8 U.S.C. § 7104(d)(1) TeTer Tre

8 U.S.C. § 7105(d)(1 4

- S.C. § 7105(d)(1)(A-¢ 4

() ‘\

8 C.FR. §& 3.103(f) 4

8 C.F.R. § 20.202 POE PEPE ree re eee Ce eS 4

38 C_ER. § 3.105(a) : fac etaee cera zo

iS C.F... & 3.300..... Ss eekeipeeaaerares 1]

38 C.F.R. § 20.611.. Rey eee il La

oe 2 ee, We so to ae eee ... passim

Model Rules of Professional Conduct for Federal Law-

adem eNO FD eee 14

ABA's Model Rules of Professional Conduct (Rule 3.3) .... 14

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of cer-

tiorari to review this case decided below by the United

States Court of Appeals for the Federal Circuit.

+

OPINIONS BELOW

The opinion of the Court of Appeals for the Federal

Circuit is published as 154 F.3d 1298 (Fed.Cir. 1998) and

reprinted in the Appendix (“App.”) at App. 1. The opin-

ion of the Court of Veterans Appeals in Haines v. West is

published at 10 Vet.App. 446 (1997) and reprinted at App.

2.

STATEMENT OF JURISDICTION

The Court has jurisdiction to review this petition

with respect to this case pursuant to 28 U.S.C. § 1254(1).

The judgment of the Federal Circuit was entered on

August 24, 1998.

PROVISIONS INVOLVED

38 U.S.C. § 5109A. Revision of decisions on grounds of

clear and unmistakable error.

(a) A decision by the Secretary under this

chapter is subject to revision on grounds of clear

and unmistakable error. If evidence establishes

the error, the decision shall be reversed and

revised.

Cc

(b) For the purposes of authorizing bene-

fits, a rating or other adjudicative decision that

constitutes a reversal or revision of a prior deci-

sion on the grounds of clear and unmistakable

error has the same effect as if the decision had

been made on the date of the prior Gecision

(c) Review to determine whether clear and

unmistakable error exists in a case may be insti-

tuted by the Secretary on the Secretary’s own

motion or upon request of the claimant.

(d) A request for revision of a decision of

the Secretary based on clear and unmistakable

error may be made at any time after the decision

iS made

(e) Such a request shall be submitted to

the Secretary and shall be decided in the same

manner as any other claim

S.C. & 7104(a)

(a) All questions in a matter which under

Section 211(a) of this title is subject to decision

by the Secretary shall be subject to one review

on appeal to the Secretary. Final decisions on

such appeals shall be made by the Board. The

Board shall decide any such appeal only after

affording the claimant an opportunity for a

hearing. Decisions of the Board shall be based

on the entire record in the proceeding and upon

consideration of all evidence and material of

record and applicable provisions of law and reg-

ulation

F.R. § 3.105(a).

Error. Previous Determinations which are

final and fining, including decisions of service

connection, degree of disability, age, marriage,

relationship, service, dependency, line of duty,

and other issues, will be accepted as correct in

the absence of clear and unmistakable error.

Where evidence establishes such error, the prior

decision will be reversed or amended. For the

purpose of authorizing benefits, the rating or

other adjudicative decision which constitutes a

reversal of a prior decision on the grounds of

clear and unmistakable error has the same effect

as if the corrected decision had been made on

the date of the reversed decision. Except as pro-

vided in paragraphs (d) and (e) of this section,

where an award is reduced or discontinued

because of administrative error or error in judg-

ment, the provisions of Sec. 3.500(b)(2) will

apply.

38 C.F.R. § 20.1302 (Prior to October 23, 1997).

When an appeal is pending before the Board

of Veterans’ Appeals at the tirne of the appel-

lant’s death, the Board may complete its action

on the issues propersly before it without applica-

tion from the survivors.

38 C.F.R. § 20.1302 (Effective October 23, 1997).

~

Death of the appellant during pendency of

appeal. An appeal pending before the Board of

Veterans’ Appeals when the appellant dies will

be dismissed.

STATEMENT OF THE CASE

1. Veterans initiate claims for benefits by filing a

claim at the nearest Regional Office. See, 38 U.S.C.

§ 5101-5103. Upon the veteran’s request, the Regional

Office must-hold a hearing where the hearing officer

assists the veteran in developing his claim. After the

hearing, or in the event no hearing is requested, the

Regional Office-issues a written decision informing the

veteran of the claim’s outcome, stating the reasons for the

decision and the rights of the veteran in the case his claim

is denied. 38 C.F.R. § 3.103(f). In cases where the claim is

denied, the veteran is required to file a Notice of Dis-

agreement (NOD) to initiate the process of appellate

review. 38 U.S.C. § 715(a).

A filing of the NOD precipitates a re-examination of

the claim by the Regional Office. 38 U.S.C. § 7105(d)(1). If

a re-examination of the claim does not result in an agree-

ment between the veteran and Regional Office, the vet-

eran must then prepare a Statement of the Case to present

to the Board of Veteran Appeals (“BVA”). 38 U.S.C.

§ 7105(d)(1)(A-C). The Statement of the Case contains a

summary of the evidence and factual issues, a statement

of the applicable statutes and regulations and a discus-

sion of their application to the facts. Id. The Statement of

the Case also sets out the Regional Office’s determina-

tions on each of the issues that were decided adversely to

the veteran. Id. The veteran selects the issues that he

wishes to appeal to the BVA and lists the arguments

relating to the errors of fact or law made by the Regional

Office. Id.

The BVA is required to consider all the veteran’s

arguments and to liberally construe those arguments in

determining whether the veteran has raised any appeal-

able issues. 38 C.F.R. § 20.202. The BVA’s decisions are

written statements containing the BVA’s findings and

conclusions and the reasons and bases for those findings

and conclusions. 38 U.S.C. § 7104(d)(1). Finally, a BVA

decision must inform the veteran of his right to appeal to

the Court of Veteran Appeals (“CVA”).

2. The phrase “clear and unmistakable error”

derives from a series of Department of Veteran Adminis-

tration (“Department”) regulations, promulgated prior to

the Judicial Review Act. Specifically, 38 C.F.R. § 3.105(a)

provides that previous dispositions of an action will be

considered correct absent a showing of “clear and unmis-

takable error.”

In defining clear and unmistakable error (“CUE”),

the CVA has held that the Department’s violation of one

of its own regulations is clear and unmistakable error.

See, Thomson v. Derwinski, 1 Vet.App. 251 (1991). The CVA

has further defined CUE as “an administrative failure to

apply the correct statutory and regulatory provisions to

the correct and relevant facts.” See, Oppenheimer v. Der-

winski, 1 Vet.App. 370 (1991). Further, in Look v. Derwinski,

2 Vet.App. 157, 163 (1992), the CVA concluded that “[t]he

substantive rights of the veteran have been prejudiced by

the Government's failure to apply [the statute] properly

and thus, this misapplication of the law constitutes clear

and unmistakable error committed by the VA.”

The CVA’s decisions clearly indicate that the main

purpose of a CUE claim is to ensure that the veteran

receives a full and complete adjudication of his benefit

claim which includes the application of all relevant regu-

lations and statutes. A claim of CUE requires demonstra-

tion of noncompliance with mandatory statutory or

regulatory requirements. The assertion of a claim of CUE

does not result in an award of benefits but merely a right

to readjudication, applying the correct legal standards.

Claims of CUE are directed at the validity of claim adju-

dication and not the end result. It is in the nature of a

collateral attack in the prior adjudication.

A CUE determination is a predicate finding which is

required by statute and/or regulation in order to vacate

the prior determination. Such a proceeding is in the

nature of a collateral attack on a final judgment. In the

prosecution of a CUE claim, the veteran must demon-

strate that clear and unmistakable error was made in the

prior determination. Therefore, procedurally, a predicate

finding of CUE must be made in order to vacate the prior

determination. Once the prior determination is vacated it

must be readjudicated applying the correct facts and/or

the correct statutes and regulations.

In 1997, Congress acknowledged the importance of a

veteran’s right to collaterally attack prior final BVA deci-

sions, as well as Regional Office determinations. Accord-

ingly, the legislature enacted 38 U.S.C. § 5109A. In

Dittrich v. West, 11 Vet. App. 10 at 11, the CVA, in discuss-

ing § 5109A provided: “This act codifies 38 C.F.R.

§ 3.105(a) and, abrogating Smith, in part, makes BVA

decisions subject to revision by the BVA based on CUE.

Judicial review of a BVA decision denying a claim of CUE

in an earlier BVA decision would then be available.”

Based upon Smith, BVA decisions had been considered

final and not subject to CUE review. Accordingly, § 5109A

creates another safeguard for the veteran in ensuring that

the Department is accountable for providing the veteran

a full, complete and correct adjudication of his claim for

benefits

3. Barbara Haines was married to the late Victor E.

Haines. Prior to his death, Mr. Haines initiated a claim of

CUE at the Department of Veterans Affairs’ Regional

Office. After the Regional Office denied Mr. Haines’

claim, he perfected an appeal to the Board of Veterans’

Appeals (“BVA”). While the claim was pending, Mr.

Haines died. The BVA dismissed the claim due to Mr.

Haines’ death. The BVA cited 38 U.S.C. § 7104(a) and 38

C.F.R. § 20.1302 as authority for its decision to dismiss

Mr. Haines’ CUE claim.

Barbara Haines, as the heir at law of Mr. Haines, filed

a Notice of Appeal with the Court of Veteran Appeals on

April 18, 1997. On June 20, 1997, counsel for the Secretary

informed the Court of Veteran Appeals that no BVA deci-

sion existed regarding the appellant, Barbara Haines. On

July 3, 1997, appellant’s counsel responded by attaching

the December 23, 1996 order dismissing Mr. Haines’

appeal because of his death.

In a September 15, 1997 order, the Court of Veteran

Appeals dismissed the claim of the appellant for lack of

jurisdiction on the grounds that the appellant’s claim did

not constitute a judiciable controversy.

Ms. Haines appealed to the Federal Circuit on the

issue of whether an action based on a claim of CUE

survives a veteran’s death. The Federal Circuit, in inter-

preting 38 U.S.C. § 5109A, determined that only a claim-

ant can seek correction of a prior erroneous decision. The

Federal Circuit further found that § 5109A provides no

procedure for adjudication or payment of veterans bene-

fits to survivors.

REASONS FOR GRANTING THE WRIT

The Federal Circuit’s opinion completely undermines

the fundamental underpinnings of the entire Veterans

Judicial Review Act and allows the Department of Vet-

eran Affairs to return to its period of “splendid isolation”

in cases where an action based upon a claim of CUE has

been brought by a claimant who subsequently is no

longer able to pursue the action because of his death.

Citing 38 C.F.R. § 20.1302 and 38 U.S.C. § 7104(a), the

BVA dismissed Mr. Haines’ CUE claim claiming that it

“lacked jurisdiction” because Mr. Haines died while his

appeal was pending. The Federal Circuit denied Mr.

Haines’ survivor, Ms. Haines, her right to proceed on the

basis that a CUE claim was a claim for “accrued benefits”

citing Landicho v. Brown, 7 Vet.App. 42 (1994) and

Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996), cert.

denied, 117 S.Ct. 2478 (1997). Ms. Haines asserts that her

husband’s CUE claim survives his death and that Mr.

Haines was entitled to an adjudication of his CUE claim

notwithstanding his death.

Ms. Haines first asserts that the very nature of a CUE

claim mandates its survival. The CVA and Department

attempted to defend the dismissal of the CUE claim by

contending that once Mr. Haines died, any clear and

unmistakable error present in the Department's deter-

mination also died. Such a contention, as adopted by the

Federal Circuit, is at complete odds with the entire pur-

pose of the Veteran’s Judicial Review Act.

In Brown v. Gardner, 513 U.S. 115 (1994), the Court, in

holding that any interpretive doubt is to be resolved in

the veteran’s favor, recognized that the Department had

been completely free from judicial review for far too long.

Id. at 121. In addition, Hodge v. West, 1998 WL 635515

(Fed. Cir.) recognizes that in creating judicial review of

Department decisions, Congress intended to preserve the

pro-claimant system. The court in Hodge also stressed the

importance of systemic fairness in the benefits determina-

tions process. Thus, it is clear that the survival of a

veteran's claim of CUE is integral to the protection of the

pro-claimant scheme and the need to maintain systemic

fairness in the benefits determination process.

Therefore, to claim that any clear and unmistakable

error in the Department's decision dies with the claimant

clearly contravenes Congressional intent. If Congress had

intended that claims would not survive the veteran’s

death, Congress would have stated so, but it did not. The

Department's decision may still contain clear and unmis-

takable error regardless of the Claimant’s death. To per-

mit an erroneous determination to stand subverts

systemic fairness, thereby undermining the credibility

and reliability of the entire adjudication process. Such a

result allows the Department to maintain its “splendid

isolation” and escape any accountability for its failure to

adhere to its own rules and regulations.

Ms. Haines secondly asserts that a CUE claim is a

“remedial claim” and not an “accrued benefit” or “sur-

vivor claim.” A CUE claim is a remedial action and serves

as a collateral attack on a previous and fina! decision. See,

Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). A

remedial action is one that compensates an individual for

a specific harm suffered. See, Matter of Wood, 643 F.2d 188,

190-191 (5th Cir. 1980). When the statute fails to address

the survivability of a claim, the courts must look to

10

federal common law. See, United States v. NEC Corporation,

11 F.3d 136, 137 (11th Cir. 1994). It is well settled federal

common law that remedial actions survive the death of a

plaintiff while penal actions do not. See, Schreiber v. Sharp-

less, 110 U.S. 76, 80 (1884).

The Federal Circuit Court determined that a vet-

eran’s heir may not pursue the veteran’s CUE claim

because a survivor “may not pursue disability compensa-

tion claims of a veteran, even as heir to the veteran’s

estate.” Haines, 154 F.3d at 1300. Such a determination

fails to recognize the nature of a CUE claim. A CUE claim

is not a claim for compensation. Rather, it is a collateral

attack, seeking to correct clear and unmistakable error in

a prior Department determination. Such a collateral

attack does not result in the granting of benefits, it results

in a readjudication of the defective prior determination.

As such, the collateral attack is not a compensation claim,

but an action to remediate a prior error. Survivors merely

seek to maintain their decedent’s right to have the matter

decided in conformance with the applicable rules and

regulations. Such a right does not seek compensation, it

seeks the correction of prior error.

Therefore, because the Federal Circuit Court incor-

rectly characterizes a 38 U.S.C. § 5109A action as a

compensation claim, the Federal Circuit Court’s deter-

mination that such an action can not survive the claim-

ant’s death is clearly erroneous and should be vacated.

However, even though the Federal Circuit’s opinion

completely misunderstands the basic purpose and nature

of CUE claims and that the basic purpose and nature of a

CUE claim mandates its survival of the claimant’s death,

11

dismissal of Mr. Haines’ CUE claim was still improper.

The CVA dismissed Ms. Haines’ CUE claim, and the

Federal Circuit affirmed the dismissal, on the basis of an

interpretation of 38 U.S.C. § 5121. This analysis is flawed

because it does not address 38 U.S.C. §§ 5109A or 7104(a)

and 38 C.F.R. §§ 3.105, 20.1302 and 20.611.

As stated, supra, 38 U.S.C. § 5109A allows a claimant

to request a revision of a Secretary’s decision based on

CUE at any time after that decision is made. In the

present case, the claimant, Victor Haines, made such a

request. In fact, Victor Haines made a request at the

Regional Office and once turned down, appealed that

decision based on CUE to the BVA. Accordingly, Victor

Haines met the requirements of the statute prior to his

death. The BVA dismissed Mr. Haines’ claim, citing both

38 U.S.C. § 7104(a) and 38 C.F.R. § 20.1302 as authority for

dismissing the claim.

38 U.S.C. § 7104(a) provides:

All questions in a matter which under section

211(a) of this title is subject to decision by the

Secretary shall be subject to one review on

appeal to the Secretary. Final decisions on such

appeals shall be made by the Board. The Board

shall decide any such appeal only after afford-

ing the claimant an opportunity for a hearing.

Decision of the Board shall be based on the

entire record in the proceeding and upon con-

sideration of all evidence and material of record

and applicable provisions of law and regulation.

(emphasis added). The BVA misinterpreted 38 U.S.C.

§ 7104(a) in citing it as authority for the dismissal of Mr.

Haines’ CUE claim. The plain language of the statute

12

clearly provides that the BVA must issue a final decision

on a matter under § 211(a) (now 38 U.S.C. § 511(a)) once

that matter is appealed. This provision has been authori-

tatively construed by the Federal Circuit as “requiring

that the Board render a decision on any question ‘under a

law that affects the provision of benefits by the Secretary

to veterans’, 38 U.S.C. § 511(a), where a Regional Office

has decided that question.” Donovan v. West, 1998 WL

697228 (Vet.App.) citing, Cox v. West, 149 F.3d 1360, 1365

(Fed. Cir. 1998). The BVA, as well as the CVA and Federal

Circuit by their affirmance of the BVA’s decision, clearly

misinterpreted this statute by allowing the BVA to elude

its statutory requirement to decide all questions under

the law of 38 U.S.C. § 511(a).

The BVA also cited to 38 C.F.R. § 20.1302 as authority

to dismiss Mr. Haines’ CUE claim. At the time of the

BVA’s dismissal of Mr. Haines’ CUE claim, 38 C.FE.R.

§ 20.1302 provided:

When an appeal is pending before the Board of

Veterans’ Appeals at the time of the appellant's

death, the Board may complete its action on the

issues properly before it without application

from the survivors.

As stated, supra, Ms. Haines appealed the BVA’s decision

to the CVA and the CVA dismissed Ms. Haines’ appeal on

September 15, 1997. 38 C.F.R. § 20.1302, as cited above,

was still in full force and effect. However, in between the

time the CVA dismissed Ms. Haines’ CUE claim and Ms.

Haines’ appeal to the Federal Circuit, 38 C.F.R. § 20.1302

was amended to provide:

Death of the appellant during pendency of

appeal. An appeal pending before the Board of

er

13

Veterans’ Appeals when the appellant dies will

be dismissed.

This amendment was effective October 23, 1997. The

amendment cites 38 U.S.C. § 7104(a) as authority. This

amendment to the regulation is significant for two rea-

sons.

First, when a regulation changes after a claim has

been filed but before the judicial appeal process has been

concluded, the version most favorable to the appellant

will apply unless Congress has specifically provided oth-

erwise. See, Anglin v. West, 11 Vet.App. 361 (1998); Karnas

v. Derwinski, 1 Vet.App. 308, 312 (1991).

In the present case, the pre-amendment version of 38

C.F.R. § 20.1302 must apply because it clearly favors both

Mr. Haines and the Appellant. The pre-amendment regu-

lation provides that when an appeal is pending, the BVA

is to complete its action on the issue properly before it.

See, Cates v. Brown, 5 Vet.App. 399, 399 (1993). Further, the

effect of that regulation is “to allow the claim to survive

the claimant’s death, and permit the Board to proceed to

adjudicate the merits of the claim without a claimant.”

Smith v. Brown, 10 Vet.App. 330, 335 (1997).!

* Based upon the flawed reasoning of both Landicho and

Zevalkink, the CVA ultimately determined in Smith, that 38

C.F.R. §§ 20.611 and 20.1302 were invalid. As discussed infra,

neither the CVA nor Federal Circuit have authority to change

the Secretary’s interpretation of a statute based upon case law

holding. As such, the ultimate holding in Smith is contrary to

law and should be deemed void ab initio.

14

Therefore, the regulation, as it existed prior to

amendment, is controlling in the present case and clearly

provides that the veteran’s CUE claim survives his death.

Second, the Secretary was under a duty to notify the

Court of the regulation’s amendment. In Camphor v.

Brown, 8 Vet.App. 272, 276 (1995), the CVA held that the

government acted unreasonably when the Secretary

failed in its duty to notify the court of a change in a law

that was pertinent and significant authority in the case

under consideration on appeal. Further, it is well estab-

lished that the Secretary has a duty to inform the Court of

the law applicable in each appeal before it. See, Penny v.

Brown, 7 Vet.App. 348 (1995). The Secretary has an ethical

obligation under both the Model Rules of Professional Con-

duct for Federal Lawyers (Rule 3.3) and the ABA’s Model

Rules of Professional Conduct (Rule 3.3) to apprise the

Court of any applicable law in any case that comes before

the Court. See, Curtis v. Brown, 8 Vet.App. 104 (1995).

Clearly the failure of the Secretary, the General Coun-

sel and the Department of Justice to notify the CVA and/

or the Federal Circuit of the regulation’s amendment is a

clear breach of their ethical and legal duty. Furthermore,

this failure deprived Ms. Haines of the benefit of the

original regulation in effect at the time of the BVA’s

dismissal. That benefit clearly permitted Mr. Haines’ CUE

claim to survive his death.

Finally, the CVA’s analysis in Landicho, supra, and the

Federal Circuit’s analysis in Zevalkink, supra, is flawed

because both cases interpret 38 U.S.C. § 5121 without

considering § 7104(a) which the Secretary had already

dispositively interpreted in 38 C.F.R. § 20.1302 and 38

15

C.F.R. § 20.611. Pursuant to Chevron v. U.S.A., Inc. v.

Natural Resources Defense, Inc., 467 U.S. 837 (1984), both

the CVA and Federal Circuit are required to defer to the

Agency's interpretation of the statute and not create their

own. Therefore, the Secretary’s interpretation of 38 U.S.C.

§ 7104(a) as promulgated in 38 C.F.R. §§ 20.611 and

20.1302 prior to the Smith v. Brown, supra, amendments is

controlling and should have been given deference.

*

CONCLUSION

For the foregoing reasons, the writ of certiorari

should be granted.

Respectfully submitted,

KENNETH M. CARPENTER

CARPENTER, CHARTERED

1525 S.W. Topeka Blvd.

P.O. Box 2099

Topeka, Kansas 66601

(785) 357-5251

Attorney for Petitioner,

Barbara Haines

APPENDIX A

App. 1

United States Court of Appeals

for the Federal Circuit

98-7014

BARBARA HAINES,

Claimant-Appellant,

v.

TOGO D. WEST, JR., Secretary of Veterans Affairs,

Respondent-Appellee.

DECIDED: August 24, 1998

Kenneth M. Carpenter, Carpenter, Chartered, of

Topeka, Kansas, argued for claimant-appellant.

Leslie Cayer Ohta, Attorney, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, of

Washington, DC, argued for respondent-appellee. With

her on the brief were Frank W. Hunger, Assistant Attorney

General, David M. Cohen, Director, and Bryant G. Snee,

Assistant Director. Of counsel on the brief were Richard J.

Hipolit, Deputy Assistant General Counsel, and Nicole

Sideris, Staff Attorney, U.S. Department of Veterans

Affairs, of Washington, D.C.

Appealed from: United States Court of Veterans Appeals

App. 2

Before RICH, LOURIE and BRYSON, Circuit Judges.

LOURIE, Circuit Judge.

Barbara Haines appeals from the decision of the

United States Court of Veterans Appeals dismissing her

appea! for lack of jurisdiction. Haines v. Gober, 10 Vet.

App. 446 (1997). Because the Court of Veterans Appeals

did not err in determining that a widow may not pursue

her deceased husband’s claim that the agency committed

clear and unmistakable error (CUE) under 38 U.S.C.A.

§ 5109A (West Supp. 1998), Pub. L. No. 105-111, § 1(a)(1),

111 Stat. 2271, 2271 (1997), we affirm.

BACKGROUND

Haines’s deceased husband, a veteran, challenged the

termination of his total disability benefits. The regional

office of the Department of Veterans Affairs denied his

claim for benefits and he appealed to the Board of Vet-

erans’ Appeals, asserting that the agency committed clear

and unmistakable error in its determination. The veteran

subsequently died and the Board dismissed the appeal

because of the veteran’s death, without rendering a deci-

sion on the merits of the veteran’s claim.

Haines then filed a notice of appeal to the Court of

Veterans Appeals challenging the Board’s dismissal of her

deceased husband’s appeal. The court dismissed the

appeal for lack of jurisdiction, stating that “a CUE adjudi-

cation with respect to the appellant’s deceased husband

would not involve a case or controversy with respect to

the appellant, but rather an advisory opinion not capable

of providing any relief to the appellant.” The court’s

App. 3

determination was premised on its conclusion that the

veteran’s interest in his CUE claim terminated at the time

of his death and that Haines is statutorily precluded from

pursuing her deceased husband's claim as heir to his

estate.

DISCUSSION

Our jurisdiction over cases from the Court of Vet-

erans Appeals is limited. We may only “review and

decide any challenge to the validity of any statute or

regulation or any interpretation thereof brought under

this section, and to interpret constitutional and statutory

provisions, to the extent presented and necessary to a

decision.” 38 U.S.C. § 7292(c) (1994).

In this appeal, Haines challenges the Court of Vet-

erans Appeals’ ruling that a CUE claim under section

5109A alleging clear and unmistakable error in a disabil-

ity compensation determination does not survive a claim-

ant’s death. Since this issue clearly relates to the

interpretation of a statute, we have jurisdiction over this

appeal. Because statutory interpretation is a question of

law, we review the question without formal deference to

the decision of the Court of Veterans Appeals.

Haines provides two arguments in support of her

position that her husband’s claim survived his death.

First, Haines relies on the language of subsection (d),

which states that a CUE claim may be made “at any

time.” Second, she argues that claims based on remedial

statutes typically survive the death of the party asserting

the claim. Neither of these arguments is persuasive.

App. 4

Section 5109A provides as follows:

(a) A decision of the Secretary under this chap-

ter is subject to revision on the grounds [sic] of

clear and unmistakable error. If evidence estab-

lishes the error, the prior decision shall be

reversed or revised.

(b) For the purposes of authorizing benefits, a

[decision] on the grounds [sic] of clear and

unmistakable error has the same effect as if the

decision had been made on the date of the prior

decision.

(c) Review to determine whether clear and

unmistakable error exists in a case may be insti-

tuted by the Secretary on the Secretary’s own

motion or upon request of the claimant.

(d) A request for revision of a decision of the

Secretary based on clear and unmistakable error

may be made at any time after that decision is

made.

(e) Such a request shall be submitted to the

Secretary and shall be decided in the same man-

ner as any other claim.

This statute makes clear that a CUE claim is not a

conventional appeal, but rather is a request for revision

of a decision by the Secretary. It is thus a means for

correction of a clearly and unmistakably wrong decision,

compared with an appeal to the Board, which permits

review of decisions that, while in error, do not meet the

clear and unmistakable tests. The parameters of a clear

and unmistakable error have not yet been fully fleshed

out by the agency or the courts, and this case does not

require us to do so. Nonetheless, it is apparent that a

App. 5

clear and unmistakable error is one that, while funda-

mental to the correctness of the adjudication of a claim, is

one about which reasonable minds could not differ. See,

e.g., Russell v. Principi, 3 Vet. App. 310 (1992) (en banc)

(interpreting the regulation that preceded the enactment

of the statute). Such an error is plainly not the usual fare

of disputes concerning entitlement to benefits.

The substantive disability compensation provisions

concerning which the veteran had asserted a CUE claim

in this case are found in chapter 11 of Title 38 of the

United States Code. Chapter 11 provides for disability

benefits payable to qualifying veterans and provides

death benefits to qualifying survivors. See, e.g., 38 U.S.C.

§ 1110 (1994) (providing for basic disability entitlement to

veterans); id. § 1121 (providing basic death benefit entitle-

ment to qualifying survivors). The statute draws a dis-

tinction between disability compensation, generally

payable only to veterans, and death and pension benefits,

payable to survivors. By statute, a veteran’s entitlement

to payment of disability compensation terminates on the

last day of the month preceding the veteran’s death. See

38 U.S.C. § 5112(b) (1994). Accordingly, survivors may

not pursue disability compensation claims of a veteran,

even as heirs to the veteran's estate. See, e.g., Landicho v.

Brown, 7 Vet. App. 42, 53-54 (1994) (interpreting section

5112(b)).

Certain survivors, however, have a right to seek pay-

ment of accrued benefits owed to a veteran at the time of

the veteran’s death. See 38 U.S.C.A. § 5121 (West Supp.

1998), Pub. L. No. 104-275, § 507, 110 Stat. 3343 (1996).

Nonetheless, this accrued benefits provision is limited. A

survivor may only seek payment of those benefits which

App. 6

were “due and unpaid” at the time of the veteran’s death.

Id. § 5121(a). The statute also limits payment to those

benefits that were due and unpaid “for a period not to

exceed two years” prior to the veteran’s death. Id. The

accrued benefits provision thus creates a narrowly lim-

ited exception to the general rule that a veteran’s claim

for benefits does not survive the veteran. See Zevalkink v.

Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996) (“Thus, after a

veteran’s death, the claim is no longer one for disability

compensation but rather one for accrued benefits.”), cert.

denied, 117 S.Ct. 2478 (1997). This statutory scheme pro-

vides a mechanism for survivors to recover certain bene-

fits the entitlement to which has already been established

or can be readily established based on evidence in the file

at the date of the veteran’s death.

Prior to 1997, the only statutory mechanism for chal-

lenging a final disability determination of the regional

office was by an appeal to the Board. However, by regula-

tion, a claimant could request correction of an otherwise

final decision on the ground that the decision was based

on a “clear and unmistakable error.” That regulation, 38

C.F.R. § 3.105 (1997), could not be used to correct errors in

a final decision of the Board, but was limited to correction

of errors by the regional office. See Smith v. Brown, 35 F.3d

1516 (Fed. Cir. 1994) (holding that final decisions of the

Board were not subject to CUE review under the regula-

tion). In 1997, Congress enacted section 5109A, which

provides for the correction of a “clear and unmistakable

error” in a final decision of either the regional office or

the Board. According to the Senate Report accompanying

the committee bill that was ultimately enacted into law,

the bill

App. 7

would accomplish two purposes. First, it would

codify, in statute, the allowance currently speci-

fied by regulation: that the regional offices may

reopen, revise, and reverse prior decisions

based on a finding of “clear and [un]mistakable

error.” Second, the Committee bill would autho-

rize claimants, as a matter of right, to appeal

prior BVA decisions to BVA, without regard to

the generally applicable l-year limitation

period, upon alleging that the appealed decision

contains “clear and unmistakable error.”

S. Rep. No. 105-157, at 4 (1997).

Haines argues that the 1997 enactment created a

mechanism by which survivors can step into the shoes of

the veteran and pursue the veteran’s claims. We disagree.

The statute plainly provides claimants with an oppor-

tunity to seek correction of only a limited category of

erroneous decisions. However, there is nothing in the

statute that provides for another person, even a survivor,

to seek correction of a decision on a veteran’s claim.

Haines principally relies on the language of section

S109A(d) that “a [CUE] request . . . may be made at any

time,” asserting that “at any time” means either before or

after a veteran’s death, without limitation. Haines is

incorrect. Subsection (d) of the statute does provide that

“a request” may bé made at any time. However, subsec-

tion (c), quoted above, provides that the “review may be

instituted . . . upon request of the claimant.” Thus, by the

express terms of the statute, a survivor has no standing to

request review of a decision affecting the disability bene-

tits of a veteran on the ground of CUE; the survivor is not

the disability benefits claimant.

App. 8

Haines also argues that a CUE claim filed by a vet-

eran survives the veteran’s death because it is remedial in

nature and should thus be liberally construed. In support

of her argument, Haines draws an analogy between a

CUE claim and the old common law writ of error, citing

Supreme Court cases dating from the last century. The

gist of the cases cited by Haines is that substitution of

parties is generally permissible when the survivors of the

deceased party pursuing a cause of action are damaged

by the error in the judgment. The government responds

that any similarity to the common law writ of error is

inapt because veterans’ benefits are statutory and there is

no statutory basis for allowing survivors to pursue a

veteran’s CUE claim.

We agree with the government that although the CUE

statute is certainly remedial, it is nonetheless unavailable

to survivors concerning a veteran’s disability benefits

claim. As we stated in Smith, 35 F.3d at 1525, a party

cannot rely upon the generous spirit that suffuses the

law generally to override the clear meaning of a particu-

lar provision.” The relevant statutory provision govern-

ing survivors is section 5121. It is not section 5109A,

which does not mention survivors. The language of the

CUE claim provision is in sharp contrast to the accrued

benefits provision, which explhcitly provides for payment

of certain veterans benefits to certain survivors. The

absence of such language from the CUE claim provision

precludes adoption of Haines's proposed interpretation.

See Brown v. Gardner, 513 U.S. 115, 120 (1994) (“[W]here

Congress includes particular lenguage in one section of a

statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally

App. 4

and purposely in the disparate inclusion or exclusion.”).

The CUE claim provision provides nothing more than a

procedure for a claimant to seek reconsideration of a

limited type of error in a prior decision. It cannot be read

as providing a procedure for adjudication or payment of

veterans benefits to survivors. The only statutory basis

providing such a remedy is section 5121

CONCLUSION

rhe Court of Veterans Appeals properly determined

that a veteran’s CUE claim under section 5109A asserting

clear and unmistakable error in a disability determination

of the Secretary under Chapter 11 does not survive the

veteran’s death. Accordingly, the Court of Veterans

Appeals dismissal of Haines’s claim is

PF

AFFIRMED

App. 10

UNITED STATES COURT

OF APPEALS FOR THE FEDERAL CIRCUIT

NOTICE OF ENTRY OF

JUDGMENT ACCOMPANIED BY OPINION

OPINION FILED AND JUDGMENT ENTERED:

08/24/98

The attached opinion announcing the judgment of

the court in your case was filed and judgment was

entered on the date indicated above. The mandate will be

issued in due course.

Information is also provided about petitions for

rehearing and suggestions for rehearing in banc. The

questions and answers are those frequently asked and

answered by the Clerk’s Office.

Costs are taxed against the Appellant(s) in favor of

the Appellee(s) under Rule 39. The party entitled to costs

is provided a bill of costs form and an instruction sheet

with this notice.

The parties are encouraged to stipulate to the costs. A

bill of costs will be presumed correct in the absence of a

timely filed objection.

Costs are payable to the party awarded costs. If costs

are awarded to the government, they should be paid to

the Treasurer of the United States. Where costs are

awarded against the government, payment should be

made to the person(s) designated under the governing

statutes, the court’s orders, and the parties’ written settle-

ment agreements. In cases between private parties, pay-

ment should be made to counsel for the party awarded

costs or, if the party is not represented by counsel, to the

nt

App. 11

party pro se. Payment of costs should not be sent to the

court. Costs should be paid promptly.

If the court also imposed monetary sanctions, they

are payable to the opposing party unless the court’s

opinion provides otherwise. Sanctions should be paid in

the same way as costs

Exhibits and visual aid shall be promptly retrieved

1

by the party that lodged them with this court.

TAN HORBALY

( lerk

( Kenneth M. (¢ arpenter

Leslie Ohta

HAINES V DVA, 98-7014

_ > =

( VA-9 -~5®QO

APPENDIX B

mn SS

App. 12

UNITED STATES COURT OF VETERANS APPEALS

No. 97-589

BARBARA Haines, APPELLANT,

V.

Herse. W. Goser,

ACTING Secretary Or VereraANs AFFAIRS, APPELLEE.

Before KRAMER, FARLEY, and, IVERS, Judges.

ORDER

On April 18, 1997, counsel for the appellant submit-

ted a Notice of Appeal (NOA) that identified the date of

the Board of Veterans’ Appeals (Board or BVA) decision

as December 23, 1996. On June 20, 1997, counsel for the

Secretary advised the Court that no BVA decision dated

December 23, 1996, existed regarding the appellant. On

July 3, 1997, counsel for the appellant responded by

attaching a December 23, 1996, BVA order dismissing the

appeal of Victor E. Haines, the appellant’s deceased hus-

band, because of Mr. Haines’ death. Counsel for the

appellant asserted that she had a right to appeal the

BVA’s order dismissing her deceased husband's claim of

clear and unmistakable error (CUE) ina prior termination

of his total disability benefits. Counsel for the appellant

asserted that where a cause of action is based upon a

statute having a remedial purpose, for example the cor-

rection of CUE in a prior rating decision, the cause of

action should be held as having survived the death of a

party. Counsel for the appellant also requested that the

Court accept the BVA decision attached to his response as

being in compliance with Rule 4(c) of this Court’s Rules

of Practice and Procedure.

App. 13

Although the veteran died prior to the filing of the

NOA in this case, the Court has held that Landicho v.

Brown, 7 Vet.App. 42 (1994), is controlling as far as the

remedy is concerned. The Court held in Landicho that

substitution of an appellant is not permissible in this

Court where the appellant is a veteran who dies while the

denial by the BVA of the veteran’s claim for disability

compensation under chapter 11 of title 38, U.S.Code, is

pending here on appeal. See Landicho, 7 Vet.App. at 44;

Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996);

Smith v. Brown, __ Vet.App. __, No. 95-898, slip op. at

6-7 (June 13, 1997). It would appear that the deceased

veteran’s CUE claim was derived from a claim for disabil-

ity compensation under chapter 11. In Landicho, the Court

held that under such circumstances the appropriate rem-

edy is to vacate the Board cecision from which the appeal

was taken and to dismiss the appeal. Landicho, 7 Vet.App.

at 54. In this case, the BVA applied Landicho and dis-

missed the appeal for lack of jurisdiction after learning of

the veteran’s death. This was done to ensure that any

Board decision and the underlying regional office (RO)

decision(s) would have no preclusive effect in the adjudi-

cation of any accrued-benefits claims derived from the

veteran’s entitlements. Id.

The appellant attempts to distinguish the surviv-

ability of a CUE claim from “claims for accrued benefits

and/or pending claims for an entitlement to benefits.”

Appellant’s Response to Appellee’s Notice, dated July 3,

1997, at 3. However, absent a claim filed by the appellant

for accrued benefits or dependency and indemnity com-

pensation, a CUE adjudication with respect to the appel-

lant’s deceased husband would not involve a case or

App. 14

controversy with respect to the appellant, but rather an

advisory opinion not capable of providing any relief to

the appellant. The Court in Landicho stated:

eae mathe! alg ntti the bls ae tanh Hs

In Waterhouse [v. Principi], 3 Vet.App. [473,]

474-76 [ (1992) ], the Court made clear that it

will not adjudicate hypothetical claims. Quoting

from the Supreme Court's decision in Aetna Life

Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct.

461, 464, 81 L.Ed. 617 (1937), as to what consti-

tutes a “controversy”, the Court stated that it

“must be a real and substantial controversy

admitting of specific relief though a decree of a

conclusive character, as distinguished from an

opinion advising what the law would be upon a

hypothetical state of facts.” Waterhouse, 3

Vet.App. at 474.

Landicho, 7 Vet.App. at 49.

On consideration of the foregoing, it is

ORDERED that this appeal is DISMISSED for lack of

jurisdiction.

DATED: SEP 15 1997 PER CURIAM.

ptr EM.

AEF re Nt,

APPENDIX C

App. 15

EXHIBIT A

(SEAL) BOARD OF VETERANS’ APPEALS

DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, DC 20420

IN THE APPEAL OF C 6 879 379

VICTOR E. HAINES

DOCKET NO. 94-04 672. ) DATE DEC 23 1996

)

)

On appeal from the

Department of Veterans Affairs Regional Office

in Wichita, Kansas

THE ISSUES

1. Whether there was clear and unmistakable error

(CUE) in a rating decision of March 29, 1982, terminating

the veteran’s total rating, based on individual unem-

ployability, due to service-connected disabilities.

2. Entitlement to an increased rating for schizophrenia,

residual type, evaluated as 50 percent disabling.

3. Entitlement to an increased rating for bilateral pes

planus, evaluated as 10 percent disabling.

4. Entitlement to a total rating, based on individual

unemployability, due to service-connected disabilities.

REPRESENTATION

Appellant represented by: Kenneth M. Carpenter, Attor-

ney

App. 16

ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel

INTRODUCTION

The veteran served on active duty from August 1944 to

February 1946.

This case was most recently before the Board of Veterans’

Appeals (BVA or Board) in January 1996, at which time

the veteran’s entitlement to service connection for hyper-

tension, secondary to service-connected schizophrenia,

was denied, and issues involving clear and unmistakable

error in a decision entered in March 1982 by the Depart-

ment of Veterans Affairs (VA) Regional Office (RO) in

Wichita, Kansas, entitlement to increased ratings for

schizophrenia and pes planus, and entitlement to a total

rating based on individual unemployability, due to ser-

vice-connected disabilities, were remanded to the RO for

further procedural and evidentiary development. BVA

was notified in November 1996 of the veteran’s death on

October 7, 1996.

DECISION OF THE BOARD

~

BVA, in accordance with the provisions of 38 U.S.C.A.

§ 7104 (West 1991 & Supp. 1996), has reviewed and con-

sidered all of the evidence and material of record in the

veteran’s claims file(s). Based on its review of the rele-

vant evidence in this matter, and for the following rea-

sons and bases, it is the decision of BVA that dismissal of

the issues on appeal is warranted.

App. 17

FINDINGS OF FACT

1. Received by BVA on November 22, 1996, was notice

from the RO that the veteran had died on October 7, 1996.

2. At the time BVA was notified of the veteran’s death,

this appeal was under active consideration on the merits

by a Member or a panel of Members of the Board.

CONCLUSION OF LAW

Because of the death of the veteran during active consid-

eration of the merits of the veteran’s appeal, BVA lacks

jurisdiction to enter a decision on the merits of the appel-

late issues presented. 38 U.S.C.A. § 7104(a) (West 1991 &

Supp. 1996); 38 C.F.R. § 20.1302 (1995).

REASONS AND BASES FOR

FINDINGS AND CONCLUSION

As a matter of law, veterans’ claims do not survive their

deaths. Vda de Landicho v. Brown, 7 Vet.App. 42, 47 (1994).

Unfortunately, the veteran died during the pendency of

the appeal and the claims advanced by him are now

moot. Inasmuch as this appeal was under active consider-

ation on the merits at the time of the veteran’s death and

at the time BVA was advised thereof, BVA is without

jurisdiction of the certified issues and must dismiss the

appeal. 38 C.F.R. § 20.1302 (1995).

In reaching this determination, BVA intimates no opinion

as to the merits of this appeal or to any derivative claim

brought by any survivor of the veteran. 38 C.F.R.

§ 20.1105 (1995). It is observed that the death certificate

indicates that the veteran was married at the time of his

App. 18

death and that he was survived by his spouse. A surviv-

ing spouse is a qualified survivor to carry on, to the

limited extent provided for by law, a deceased veteran’s

claim for VA benefits, by submitting an application for

accrued benefits within one year after the veteran’s

death. 38 U.S.C.A. § 5121 (West 1991).

ORDER

The appeal is dismissed.

/s/ Bruce Kannee

BRUCE KANNEE

Member, Board of Veterans’ Appeals

The Board of Veterans’ Appeals Administrative Pro-

cedures Improvement Act, Pub. L. No. 103-271, § 6, 108

Stat. 740, 741 (1994), permits a proceeding instituted

before the Board to be assigned to an individual member

of the Board for a determination. This proceeding has

been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A.

S 7266 (West 1991 & Supp. 1995), a decision of the Board

of Veterans’ Appeals granting less than the complete

benefit, or benefits, sought on appeal is appealable to the

United States Court of Veterans Appeals within 120 days

from the date of mailing of notice of the decision, pro-

vided that a Notice of Disagreement concerning an issue

which was before the Board was filed with the agency of

original jurisdiction on or after November 18, 1988. Vet-

erans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102

Stat. 4105, 4122 (1988). The date which appears on the

face of this decision constitutes the date of mailing and

A pp. 19

the copy of this decision which you have received is your

notice of the action taken on vour appeal by the Board of

Veterans’ Appeals.