Viola M. Stoll, Claimant-Appellant v. R. James Nicholson, Secretary of Veterans Affairs , 401 F.3d 1375 ( 2005 )

PAULINE NEWMAN, Circuit Judge,

dissenting.

The court’s opinion categorizes the widow’s claim as a “new claim for service connection” which must be established afresh. However, the veteran’s service connection was already finally established. The widow’s entitlement to dependency- and-indemnity compensation does not require redetermination of the veteran’s service-connection after his death.

There is only one claim of service-connection, the claim of the veteran. Mr. Stoll’s service-connection was “grandfathered” because his entitlement was established before the statute/rule was changed regarding tobacco-caused disabilities. This entitlement does not require — indeed, it does not permit — reassessment after his death. The service-connected disability established during his lifetime determines the widow’s entitlement.

It is thus incorrect to hold that the widow must reestablish service-connection after the veteran dies. The widow’s rights to compensation flow from the disability of the veteran, as established during his life, and on his death his service-connection was beyond challenge. From my colleagues’ ruling that service-connection must now be proven on law that explicitly did not apply to this veteran, I respectfully dissent.