# Petition for Writ of Certiorari — Haines v. West, 119 S. Ct. 1249 (1999) (No. 98-826) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1206%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 ## Text 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 .... = ( 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1206%3A1. Public record. Not legal advice.