Weiger v. Shinseki

414 F. App'x 282

• Court: Court of Appeals for the Federal Circuit
• Decided: January 13, 2011
• Docket: 2010-7084
• Status: Unpublished

Opinion

PER CURIAM.

Ms. Weiger appeals from the decision of the Court of Appeals for Veterans Claims (“Veterans Court”), affirming the Board of Veterans’ Appeals denial of her claim of dependency and indemnity compensation (“DIC”) for her husband’s service-connected death due to COPD. Ms. Weiger contends that she is entitled to DIC, despite 38 U.S.C. § 1103(a) — which precludes service connection for “any injury or disease attributable to the use of tobacco products by the veteran during the veteran’s service” — because her husband had been granted service connection prior to that statute’s effective date.

This court has held that a widow in an identical situation was not entitled to collect DIC, because “the RO treats the survivor’s DIC claim as a new claim for service connection,” and “the survivors of [veteran’s who have previously established service connection] do not inherit the veteran’s prior service-connection status for purposes of DIC claims.” Stoll v. Nicholson, 401 F.3d 1375, 1380 (Fed.Cir.2005). Because 38 U.S.C. § 1103(a) precludes Ms. Weiger from showing service connection anew, and because her husband’s prior service-connection status does not carry forward to support her present claim, there is no basis for this court to overturn the decision of the Veterans Court.

Ms. Weiger argues that this panel should overrule Stoll. However, a prior panel decision is binding law unless it is overruled by the Supreme Court or this court sitting en banc. Newell Co. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed.Cir.1988). As such, this panel is bound by Stoll.

For the foregoing reasons, the decision of the Court of Veterans’ Appeals is affirmed.

AFFIRMED.

Costs

Each party shall bear its own costs.