Sandra K. Hupp v. Eric K. Shinseki , 2009 U.S. Vet. App. LEXIS 1555 ( 2009 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 03-1668
SANDRA K. HUPP, APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Chief Judge, and HAGEL and SCHOELEN, Judges.
ORDER
Before the Court is Sandra K. Hupp's appeal, through counsel, of a July 14, 2003, Board of
Veterans' Appeals (Board) decision that denied her claims for accrued benefits under 38 U.S.C.
§ 5121 and service connection for the cause of her veteran-husband's death for the purpose of
38 U.S.C. § 1310 dependency and indemnity compensation (DIC) benefits. On July 18, 2007, the
Court affirmed the Board's denial of Mrs. Hupp's accrued benefits claim after concluding that Mrs.
Hupp had abandoned her appeal of that claim because she had raised no specific assertion of error
regarding the matter. Hupp v. Nicholson, 21 Vet.App. 342, 356 (2007). The Court also vacated that
portion of the Board's 2003 decision that had denied Mrs. Hupp's claim for VA service connection
for the cause of her husband's death for the purpose of DIC benefits and remanded that matter for
readjudication. Id. at 355-56. The Court noted that at the time of his death from intracranial
hemorrhage due to or as a consequence of chronic myelogenous leukemia (CML), Mr. Hupp had a
pending claim for service connection for "residuals of exposure to Agent Orange." Id. at 346. With
regard to Mrs. Hupp's claim for DIC benefits, the Court determined that the Board had erred by
failing to provide an adequate statement of reasons or bases for rejecting a May 1995 VA physician's
opinion linking Mr. Hupp's CML to Agent Orange exposure in service.
On appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit)
reversed this Court's decision affirming the Board's denial of Mrs. Hupp's accrued benefits claim.
Hupp v. Shinseki, No. 2008-7059, 2009 WL 1386056, at *2 (Fed. Cir. May 19, 2009). The Federal
Circuit concluded that under the facts of this case there was "no legal basis" to distinguish the
accrued benefits and DIC claims and ordered that the accrued benefits matter be "remand[ed] to the
Veterans Court with instructions to remand to the Board . . . so that the DIC and accrued benefits
claims can be considered together." Id. at *1, *2.
Accordingly, it is
ORDERED that that part of the July 2003 Board decision that denied Mrs. Hupp's claim for
accrued benefits is VACATED and the matter is REMANDED to the Board for readjudication
consistent with the reasoning set forth in the Court's July 18, 2007, decision remanding Mrs. Hupp's
claim for DIC benefits. See Hupp, 21 Vet.App. at 355-56.
DATED: August 31, 2009 PER CURIAM