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Richard v. West

November 30, 1998


Before Mayer, Chief Judge, Clevenger, and Bryson, Circuit Judges.

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

Appealed from: United States Court of Veterans Appeals Chief Judge Frank Q. Nebeker

Louis Richard asks us to reverse the Court of Veterans Appeals' dismissal of his deceased brother's appeal for lack of jurisdiction. Richard v. Gober, 10 Vet. App. 431 (1997). Because the Court of Veterans Appeals did not err in determining that Philogene Richard's claim for compensation under 38 U.S.C. * 1110 (1994) was extinguished by his death, we affirm.


In mid-1994, Philogene Richard, a World War II veteran and former prisoner of war, asked that his claim for service connection of ischemic heart disease, originally diagnosed in 1981, be reopened. The Department of Veterans Affairs denied this request in September 1994, and the Board of Veterans' Appeals affirmed in a decision dated February 21, 1997. See In re Richard, No. 94-44 671 (Bd. Vet. App. Feb. 21, 1997). Richard filed a timely notice of appeal to the Court of Veterans Appeals ("CVAO) pursuant to 38 U.S.C. * 7252 (1994).

On June 30, 1997, while his appeal to the CVA was pending, Philogene Richard died. After requesting an extension of time, Louis Richard--the deceased's brother and the estate's representative--sought to have himself substituted as a party to continue the appeal under CVA Rule 43(a), which allows a 'personal representative' of a deceased party to be substituted in a pending appeal. Ct. Vet. App. R. 43(a) (1994). The CVA dismissed the appeal sua sponte on September 22, 1997, holding that the claim for service-connected benefits had become moot at the death of the veteran-claimant, and that therefore the CVA had lost jurisdiction over the action. See Richard, 10 Vet. App. at 432.

Louis Richard, on behalf of the deceased's estate, brings this appeal pursuant to 38 U.S.C. § 7292 (1994), requesting that this court order reinstatement of the CVA appeal.


Because appellant requests this court to interpret statutes relating to veterans' benefits and the rules established for the Court of Veterans Appeals, this court has jurisdiction under 38 U.S.C. * 7292(c) (1994) (granting exclusive jurisdiction to the Federal Circuit 'to review and decide any . . . interpretation [of any statute or regulation under this section]'). Nevertheless, the Secretary of Veterans Affairs ('the Secretary') asserts that jurisdiction is not proper with this court, arguing that Mr. Richard 'challenges only factual findings or the application of established law to the facts.'

The Secretary's argument ignores the nature of the questions placed before this court. To be sure, Mr. Richard endeavors to inform the court of the context of the appeal, including the basis upon which the 1994 claim for service connection was filed. He does not, however, present such issues as being ripe for review on this appeal. Merely painting the factual backdrop of a dispute over statutory interpretation clearly does not place an appeal beyond our jurisdiction. Our inquiry here considers the proper construction of statutory language contained in title 38 of the United States Code, and the import of CVA Rule 43(a). As such, jurisdiction is unquestionably proper. See 38 U.S.C. * 7292.

We review the statutory interpretation of the Court of Veterans Appeals de novo. See Haines v. West, 154 F.3d 1298, 1299-1300 (Fed. Cir. 1998); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir.), cert. denied, 119 S. Ct. 90 (1998).


It is well-established that the Court of Veterans Appeals, although not formally bound by the 'case or controversy' requirement of Article III of the United States Constitution, does not decide cases that do not present an actual case or controversy. See Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed. Cir. 1996), cert. denied, 117 S. Ct. 2478 (1997). There is no dispute that if Louis Richard does not possess standing to pursue his deceased brother's claims, there is no case or controversy over which the CVA may exercise jurisdiction. See id. Further, Louis Richard's qualifications as the personal representative of Philogene Richard's estate are not in dispute. Thus, because Louis Richard's claims are wholly derivative of those of the deceased veteran, the dispositive issue is whether the claims of a veteran for service- connected benefits under 38 U.S.C. * 1110 survive his or her death. We hold that they do not.

Chapter 11 of title 38 makes no provision for the payment of disability compensation to survivors. Haines, 154 F.3d at 1300. Instead, Congress in 1943 established a procedure whereby a limited amount of "accrued benefits" due to the deceased veteran could be recovered by designated individuals. Act of July 13, 1943, Ch. 233, Pub. L. No . 78-144, 57 Stat. 554, 557. This scheme was eventually codified with minor changes at 38 U.S.C. § 5121(a), which allows benefits accrued within two years of the veteran's death to be paid first to the surviving spouse, then to any surviving children, surviving parents, and in some cases to the person who bore the expense of the veteran's last sickness and burial. See 38 U.S.C. § 5121(a) ...

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