Hunter v. Shinseki , 538 F. App'x 904 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ADRIANA HUNTER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7114
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2645, Chief Judge Bruce E.
Kasold.
______________________
Decided: November 6, 2013
______________________
ADRIANA HUNTER, of Vista, California, pro se.
JESSICA R. TOPLIN, Trial Attorney, Civil Division,
Commercial Litigation Branch, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
KIRK T. MANHARDT, Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel and RACHAEL T. BRANT, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
HUNTER v. SHINSEKI 2
______________________
Before LOURIE, DYK, and WALLACH, Circuit Judges.
PER CURIAM.
Adriana Hunter appeals from a decision of the Court
of Appeals for Veterans Claims (“Veterans Court”). The
Veterans Court affirmed a decision of the Board of
Veterans’ Appeals (“Board”) that Ms. Hunter is not
entitled to an effective date earlier than September 25,
1985, for an award of dependency and indemnity
compensation (“DIC”). Hunter v. Shinseki, No. 11-2645,
2013 WL 1668236, at *1 (Vet. App. Apr. 18, 2013). We
affirm.
BACKGROUND
Adriana Hunter is the surviving spouse of Walter R.
Hunter, a Marine Corps veteran who served in the
Vietnam War. Mr. Hunter died on January 24, 1980, from
cancer (metastatic malignant fibrous histiocytoma). This
soft tissue sarcoma most likely resulted from Mr. Hunter’s
exposure to the Agent Orange herbicide while serving in
Vietnam.
In February 1980, Ms. Hunter applied for a
determination of service connection for Mr. Hunter’s
death in order to receive DIC benefits on behalf of herself
and her children. On April 10, 1980, the Department of
Veterans Affairs (“VA”) regional office (“RO”) denied her
claim finding insufficient evidence to connect her
husband’s illness to his service in Vietnam. Ms. Hunter
did not appeal. In 1991, the Agent Orange Act was
enacted and Ms. Hunter filed a new DIC claim based on
the 1991 statute and the implementing regulations. This
statute and accompanying regulations modified the
presumption of herbicide exposure for veterans who
served in Vietnam. Agent Orange Act of 1991, 38 U.S.C. §
1116; 38 C.F.R. § 3.311a. Accordingly, the RO awarded
HUNTER v. SHINSEKI 3
Ms. Hunter DIC benefits, assigning her an effective date
of September 25, 1985. This date was established by the
regulations as the effective date of the 1991 statute.
Claims Based on Exposure to Herbicides Containing
Dioxin (Soft-Tissue Sarcomas), 56 Fed. Reg. 51,651 (Oct.
15, 1991) (codified at 38 C.F.R. § 3.311a)
Ms. Hunter appealed to the Board, arguing that the
effective date of her benefits should be her husband’s 1980
death. On December 28, 1994, the Board denied Ms.
Hunter’s request for an earlier effective date. Ms. Hunter
did not appeal to the Veterans Court, and the Board’s
December 1994 decision became final.
In August 2007, Ms. Hunter filed a new claim with
the RO that renewed her request for an earlier effective
date of DIC benefits. However, the RO denied her claim
for earlier effective date, and both the Board and
Veterans Court affirmed. Ms. Hunter timely appealed to
this court, and we have jurisdiction pursuant to 38 U.S.C.
§ 7292.
DISCUSSION
The amendment to 38 C.F.R. § 3.311a concerning
service connection for soft-tissue sarcomas, like the 1991
statute on which it was based, was a liberalizing
provision. See Spencer v. Brown, 17 F.3d 368, 372 (Fed.
Cir. 1994) (defining a “liberalizing law” as “one which
brought about a substantive change in the law creating a
new and different entitlement to a benefit”). Under 38
U.S.C. § 5110(g), the effective date of an award under a
liberalizing law “shall be fixed in accordance with the
facts found but shall not be earlier than the effective date
of the [liberalizing] Act or administrative issue.” In
Williams v. Principi, 310 F.3d 1374 (Fed. Cir. 2002), we
construed § 5110(g) to mean, “the effective date [of an
award of DIC benefits] cannot be earlier than the
[effective] date of the liberalizing act or issue.” Id. at
1378. Because § 3.311a was a liberalizing provision, Ms.
HUNTER v. SHINSEKI 4
Hunter cannot recover an award of DIC benefits prior to
September 25, 1985, the effective date of the 1991
amendment to § 3.311a. 1
AFFIRMED
COSTS
No costs.
1 In general, requests to reopen claims must be
based on clear and unmistakable error (“CUE”) or new
and material evidence. Cook v. Principi, 318 F.3d 1334,
1339 (Fed. Cir. 2002). Ms. Hunter’s effort to reopen her
1994 appeal fits in neither category. Thus, the Secretary
of Veterans Affairs argues that Ms. Hunter’s appeal
constitutes an unauthorized “freestanding appeal.”
[RB16]. As the Veterans Court affirmed, “Mrs. Hunter’s
current claim for an earlier effective date [indeed]
constitutes an unauthorized freestanding claim.” Hunter
v. Shinseki, No. 11-2645, 2013 WL 1668236, at *1 (Vet.
App. Apr. 18, 2013) (citing Rudd v. Nicholson, 20 Vet.
App. 296, 300 (2006) (dismissing the plaintiff’s re-
initiation of her claim for an earlier effective date because
this claim was not made on appeal from the Board’s
original decision and therefore constituted a “freestanding
claim” that “vitiates the rule of finality”)). Because we
hold that Ms. Hunter presents no viable claim, we do not
reach this issue.