Edythe F. Robinson v. Eric K. Shinseki

23 Vet. App. 512, 2010 U.S. Vet. App. LEXIS 1132, 2010 WL 2978174

Opinion

ORDER

PER CURIAM:

On May 17, 2010, the Court issued an order remanding this case based upon the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decision in Robinson v. Shinseki, No.2009-1176, 2010 U.S.App. LEXIS 9434 (Fed.Cir. April 19, 2010). However, the Court issued its order before mandate entered on June 14, 2010. Accordingly, the May 17 order will be withdrawn and this order issued in its stead nunc pro tunc to June 14, 2010.

On April 19, 2010, the Federal Circuit vacated and remanded the Court’s decision in Robinson v. Shinseki, 22 Vet.App. 440 (2009), which affirmed the Board’s denial of the appellant’s claim for disability and indemnity benefits based upon her conviction of manslaughter in her veteran husband’s death. The Federal Circuit instructed the Court to remand this matter to the Board of Veteran’ Appeals (Board) with instructions that: under Florida law intent is not necessarily an element of the crime of manslaughter because manslaughter by act or procurement, or voluntary manslaughter, includes the element of intent, but manslaughter by culpable negligence, or involuntary manslaughter does not; and that a factual determination be made as to whether the appellant intentionally and wrongfully caused the death of her veteran husband based upon the evidence of record and any additional evidence necessary for such a determination.

Upon consideration of the foregoing, it is

ORDERED that the May 17 order is withdrawn. It is further

ORDERED that this matter is REMANDED to the Board for re-adjudication consistent with this order.