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Haines v. West

August 24, 1998

BARBARA HAINES, CLAIMANT-APPELLANT,
v.
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Before Rich, Lourie and Bryson, Circuit Judges.

The opinion of the court was delivered by: Lourie, Circuit Judge.

Appealed from: United States Court of Veterans Appeals United States Court of Appeals for the Federal Circuit

Barbara Haines appeals from the decision of the United States Court of Veterans Appeals dismissing her appeal 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 Veterans' 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 decision 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 adjudication 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 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 Veterans 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 Veterans Appeals' ruling that a CUE claim under section 5109A alleging clear and unmistakable error in a disability compensation determination does not survive a claimant'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.

Section 5109A provides as follows:

(a) A decision of the Secretary under this chapter is subject to revision on the grounds [sic] of clear and unmistakable error. If evidence establishes 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 instituted by the Secretary on the Secretary's own ...


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