Carpenter v. West

11 Vet. App. 140, 1998 U.S. Vet. App. LEXIS 348, 1998 WL 134007
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 24, 1998
DocketNo. 96-95
StatusPublished
Cited by27 cases

This text of 11 Vet. App. 140 (Carpenter v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carpenter v. West, 11 Vet. App. 140, 1998 U.S. Vet. App. LEXIS 348, 1998 WL 134007 (Cal. 1998).

Opinions

STEINBERG, Judge, filed the opinion of the Court.

IVERS, Judge, filed the concurring opinion.

STEINBERG, Judge:

The appellant, Angeline P. Carpenter, the widow of World War II veteran Bernard W. Carpenter, appeals an October 20, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) that (1) found that a 1983 Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) decision that the appellant asserted had committed clear and unmistakable error (CUE) was subsumed in a March 1984 BVA decision, (2) concluded that the criteria for review of an RO decision based on CUE had not been met, and (3) therefore denied the appellant’s claim for dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. Record (R.) at 5-7. The appellant filed a brief and a reply brief, and the Secretary filed a brief; after oral argument, the Court, on May 2, 1997, ordered supplemental briefing, and the Secretary and the appellant each filed a response. 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 vacate the BVA decision and remand the matter for readjudication.

I. Facts

The veteran served on active duty in the U.S. Army from October 1941 to November 1945. R. at 59. A December 1945 VARO decision granted him a 30% rating for a service-incurred “anxiety state”. R. at 61. That rating was reduced to 10% by a March 1947 RO decision (R. at 63) and to 0% by an April 1952 RO decision (R. at 65). In April 1974, an RO decision restored the rating to 30% (R. at 68), and a June 1975 RO decision increased that rating to 70% (R. at 70). Ultimately, a July 1975 RO decision granted total disability based upon individual unemploya-bility (TDIU), effective from January 1975. R. at 161.

The TDIU rating remained in effect until a February 1983 RO decision concluded, apparently under 38 C.F.R. § 3.105(e) (see R. at 90 (Statement of the Case (SOC))), that the July 1975 RO TDIU award had been the product of CUE and, accordingly, terminated TDIU benefits effective on May 1, 1983. R. at 80-81. That decision concluded:

Rating decision of 7-10-75 is held to be in clear and unmistakable error in the granting of entitlement to individual unemploya-bility benefits without developing further regarding the veteran’s disability retirement examination as there was of record a severe non[-]serviee[-]eonn'ected disability.

R. at 81; see also R. at 91. On appeal to the Board, the veteran’s service representative in his February 1984 written presentation to the Board expressly “disagree[d] with the local rating agency’s most recent determination regarding [CUE in the] rating decision of June 3, 1975” (R. at 104) and argued that “the previous rating decision did not consti[142]*142tute [CUE] in granting the total disability evaluation” (R. at 105). A March 1984 BVA decision confirmed the 1983 RO decision terminating the TDIU rating. The Board there concluded that impairment of the veteran’s ability to work was “encompassed by the 70 percent disability evaluation” and that “the veteran’s service-connected disability, in itself, is not of sufficient severity as to preclude him from obtaining and retaining some relatively nonstressful form of substantially gainful employment, consistent with his high school education and varied prior work experience.” R. at 112. The Board’s decision did not specifically address whether the 1983 RO decision had correctly determined that the 1975 RO decision had been the product of CUE; instead, its conclusions of law were that (1) “[t]he sehedular requirements for a disability evaluation in excess of 70 percent for generalized anxiety disorder have not been met” and (2) the “[t]he veteran is not individually unemployable by reason of service-connected disability.” R. at 113.

In August 1991, the veteran died; the death certificate listed the causes of death as sepsis, due to peptic ulcer disease, due to pneumonia; a cerebral artery stroke was listed as a contributing factor in causing his death. R. at 115. Thereafter, in September 1991, the appellant filed a claim for DIC. R. at 120-23. Although her DIC claim was initially articulated as a section 1310 claim for service-connected cause of death, she eventually withdrew that claim and clarified that her application was for “section 418” (the forerunner of section 1318) DIC. See ibid.; R. at 125. A November 1991 RO decision denied DIC, concluding that “[t]he evidence of record does not show that at the time of the veteran’s death, a total disability evaluation had been in effect for ten continuous years immediately preceding death.” R. at 128. Subsequently, she raised, under 38 U.S.C. § 1318(b), the issue of CUE in the 1983 RO decision. See R. at 149-55. The RO denied that claim (R. at 128-29), and she appealed to the BVA by filing a timely Notice of Disagreement (NOD) (R. at 133) and VA Form 1-9 (Substantive Appeal to BVA) (R. at 144).

In the October 20,1996, BVA decision here on appeal, the Board, relying upon the holding in Smith (William) v. Brown, 35 F.3d 1516 (Fed.Cir.1994), that CUE is not applicable to BVA decisions, found that the 1983 RO decision was subsumed in the 1984 BVA decision and concluded that “the appellant’s claim for restoration of a total rating for the veteran’s compensation retroactive to 1983 based on CUE in the February 1983 RO decision under 38 C.F.R. § 3.105(a) must be denied because of absence of legal merit and lack of entitlement under the law.” R. at 6, 9-10.

II. Analysis

When a qualifying veteran dies from a service-connected disability, the veteran’s surviving spouse is eligible for DIC. See 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a) (1997). Even if a service-connected condition did not cause or contribute to a veteran’s death, the surviving spouse is entitled to receive DIC benefits “as if the veteran’s death were service connected” if a veteran meets the requirements in 38 U.S.C. § 1318 and 38 C.F.R. § 3.22 (1997) as to service connection. Section 1318(b) provides for the payment of DIC, as if the cause of death were service connected, where the veteran has died under the following conditions, inter alia:

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Bluebook (online)
11 Vet. App. 140, 1998 U.S. Vet. App. LEXIS 348, 1998 WL 134007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carpenter-v-west-cavc-1998.