Rusick v. Gibson , 760 F.3d 1342 ( 2014 )


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  •   United States Court of Appeals
    for the Federal Circuit
    ______________________
    BONNIE J. RUSICK,
    Claimant-Appellant,
    v.
    SLOAN D. GIBSON,
    Acting Secretary of Veterans Affairs,
    Respondent-Appellee.
    ______________________
    2013-7105
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 11-3773, Judge William A. Moor-
    man.
    ______________________
    Decided: July 23, 2014
    ______________________
    KENNETH M. CARPENTER, Carpenter Chartered, of To-
    peka, Kansas, argued for claimant-appellant.
    MICHAEL P. GOODMAN, Trial Attorney, Commercial
    Litigation Branch, Civil Division, United States Depart-
    ment of Justice, of Washington, DC, argued for respond-
    ent-appellee. With him on the brief were STUART F.
    DELERY, Assistant Attorney General, BRYANT G. SNEE,
    Acting Director, and FRANKLIN E. WHITE, JR., Assistant
    Director. Of counsel on the brief were DAVID J. BARRONS,
    Deputy Assistant General Counsel, and LARA K.
    2                                         RUSICK   v. GIBSON
    EILHARDT, Staff Attorney, United States Department of
    Veterans Affairs, of Washington, DC.
    ______________________
    Before PROST, Chief Judge, BRYSON and DYK, Circuit
    Judges.
    BRYSON, Circuit Judge.
    Bonnie J. Rusick appeals from a decision of the Unit-
    ed States Court of Appeals for Veterans Claims (“the
    Veterans Court”), which upheld a ruling of the Board of
    Veterans’ Appeals denying Mrs. Rusick’s claim for ac-
    crued benefits allegedly due to her deceased husband.
    Because the Veterans Court did not misinterpret 38
    U.S.C. § 5121(a) or 38 U.S.C. § 5109A(b), we affirm.
    I
    Mrs. Rusick is the surviving spouse of veteran George
    W. Rusick. Mr. Rusick served on active duty in the Unit-
    ed States military from January 1942 until December
    1943. In February 1983, a regional office of the Veterans
    Administration issued a decision continuing a 30-percent
    rating for Mr. Rusick’s service-connected anxiety disorder.
    Together with a service-connected hearing loss rated at 40
    percent, Mr. Rusick’s combined rating was 60 percent. In
    1996, the regional office increased the rating for his
    anxiety disorder to 100 percent. Mr. Rusick died in April
    2000. At that time, he had no pending claims for benefits
    from the Department of Veterans Affairs (“DVA”).
    In May 2000, Mrs. Rusick filed a claim with the DVA
    seeking dependency and indemnity compensation (“DIC”)
    and accrued benefits. The DVA denied both claims in
    October 2000, and Mrs. Rusick did not appeal. In Sep-
    tember 2006, Mrs. Rusick filed another claim with the
    DVA asserting entitlement to DIC based on a clear and
    unmistakable error (“CUE”) in Mr. Rusick’s February
    1983 rating decision. Mrs. Rusick asserted that Mr.
    RUSICK   v. GIBSON                                          3
    Rusick would have received a 100 percent rating in 1983
    because the evidence showed that he was unemployable
    as of that time. The Board of Veterans’ Appeals agreed
    with Mrs. Rusick that the regional office’s failure to
    assign Mr. Rusick a 100 percent rating in 1983 constitut-
    ed CUE. Based on that error, the Board determined that
    Mrs. Rusick was entitled to DIC benefits under 38 U.S.C.
    § 1318, which provides that a surviving spouse shall
    receive DIC if the veteran was “entitled to receive . . .
    compensation at the time of death for a service-connected
    disability rated totally disabling if . . . the disability was
    continuously rated totally disabling for a period of 10 or
    more years immediately preceding death.” 38 U.S.C.
    § 1318(b).
    The regional office implemented the Board’s decision
    by awarding DIC, but it denied Mrs. Rusick’s further
    claim for accrued benefits under 38 U.S.C. § 5121. That
    claim, if granted, would have entitled Mrs. Rusick to the
    additional benefits Mr. Rusick would have received be-
    tween 1983 and 1996 if he had been awarded a 100 per-
    cent rating in 1983. Mrs. Rusick appealed that decision,
    and the Board affirmed. The Board held that the CUE
    decision had the limited effect of rendering Mrs. Rusick
    eligible for DIC; it did not have the further effect of mak-
    ing her eligible to receive accrued benefits for which her
    deceased husband would have been eligible if he had filed
    a CUE claim under 38 U.S.C. § 5109A.
    On Mrs. Rusick’s appeal of the Board’s decision, the
    Veterans Court affirmed. It rejected Mrs. Rusick’s argu-
    ment that, based on the Board’s CUE determination, she
    was entitled to the periodic monthly benefits to which Mr.
    Rusick was allegedly “entitled at death under existing
    ratings or decisions” and that were “due and unpaid,” 38
    U.S.C. § 5121(a). The court explained that because the
    Board’s CUE determination was made after Mr. Rusick’s
    death, “there was no ‘existing’ rating decision at the time
    of his death in 2000” that would allow Mrs. Rusick to
    4                                           RUSICK   v. GIBSON
    receive accrued benefits under section 5121. Rusick v.
    Shinseki, No 11-3773, slip op. at 6 (Vet. App. Mar. 29,
    2013).
    The Veterans Court rejected Mrs. Rusick’s argument
    that the corrected 1983 rating decision became an “exist-
    ing . . . decision” for purposes of section 5121, the accrued
    benefits statute, by virtue of the retroactivity provision in
    section 5109A, the veterans’ CUE claim statute. The
    court held that under this court’s decision in Haines v.
    West, 
    154 F.3d 1298
    (Fed. Cir. 1998), “a veteran’s CUE
    claim under section 5109A . . . does not survive the veter-
    an’s death.” Rusick, slip op. at 6. The court further
    explained that “[b]ecause section 5109A does not contain
    any language regarding the payment of veterans benefits
    to survivors, the appellant cannot use the language in the
    CUE statute to override the specific provisions of section
    5121,” which limit a survivor to receiving benefits that
    were “awarded but unpaid” at the time of the veteran’s
    death. 
    Id. at 6-7.
    Because the benefits sought by Mrs.
    Rusick were not “benefits that were awarded but unpaid
    to her husband at the time of his death,” the court ruled
    that she was not entitled to those benefits under section
    5121.
    II
    On appeal to this court, Mrs. Rusick argues that the
    Veterans Court misinterpreted the accrued benefits
    statute, 38 U.S.C. § 5121(a), and the CUE claim statute,
    38 U.S.C. § 5109A. At the time of Mr. Rusick’s death in
    2000, section 5121 provided:
    [P]eriodic monetary benefits . . . to which an indi-
    vidual was entitled at death under existing rat-
    ings or decisions, or those based on evidence in
    the file at date of death . . . and due and unpaid
    for a period not to exceed two years, shall, upon
    the death of such individual be paid as follows:
    RUSICK   v. GIBSON                                         5
    ***
    (2) Upon the death of a veteran, to the living per-
    son first listed below:
    (A) The veteran’s spouse . . .
    38 U.S.C. § 5121(a) (2000). 1 Mrs. Rusick argues that
    when the Board revised the 1983 rating decision based on
    CUE, that decision became an “existing rating[] or deci-
    sion[]” under section 5121, thereby entitling her to ac-
    crued benefits. That is so, according to Mrs. Rusick,
    because of section 5109A’s retroactivity provision. That
    provision states that “[f]or the purposes of authorizing
    benefits, a rating or other adjudicative decision that
    constitutes a reversal or revision of a prior decision on the
    grounds of clear and unmistakable error has the same
    effect as if the decision had been made on the date of the
    prior decision.” 38 U.S.C. § 5109A(b).
    Mrs. Rusick’s argument is foreclosed by our decisions
    in Jones v. West, 
    136 F.3d 1296
    (Fed. Cir. 1998), and
    Haines v. West, 
    154 F.3d 1298
    (Fed. Cir. 1998). In Jones
    we held that “in order for a surviving spouse to be entitled
    to accrued benefits, the veteran must have had a claim
    pending at the time of his death for such benefits or else
    be entitled to them under an existing rating or 
    decision.” 136 F.3d at 1299
    . The court foreclosed a broad view of an
    “existing rating or decision” that would include revised
    ratings or decisions by noting that “a surviving spouse’s
    ‘accrued benefits claim is derivative of the veteran’s
    claim.’” 
    Id. at 1300
    (quoting Zevalkink v. Brown, 
    102 F.3d 1
     Section 5121 was amended in 2003 to remove the
    two-year limitation on the payment of accrued benefits.
    See Veterans Benefits Act of 2003, § 104(a), Pub. L. No.
    108-183, 117 Stat. 2651, 2656. That change, however,
    does not apply to veterans who died before December 16,
    2003. 
    Id. § 104(d).
    6                                          RUSICK   v. GIBSON
    1236, 1241-42 (Fed. Cir. 1996)). Therefore, if the veteran
    does not have a claim pending at the time of his death, or
    otherwise have money due to him but unpaid, then “the
    surviving spouse has no claim upon which to derive his or
    her own application” for accrued benefits. 
    Id. For that
    reason, Mrs. Rusick may not seek accrued benefits in this
    case: When Mr. Rusick died, he had not been awarded
    increased benefits during the relevant period that were
    unpaid, nor did he have a pending claim to correct the
    1983 decision.
    In Haines, the veteran had a CUE claim under section
    5109A pending before the Board when he died. After the
    Board dismissed the claim due to the veteran’s death, the
    surviving spouse appealed to the Veterans Court, chal-
    lenging the Board’s dismissal of the deceased veteran’s
    claim. The court dismissed the appeal for lack of standing
    because “the veteran’s interest in his CUE claim termi-
    nated at the time of his death.” Accord 
    Haines, 154 F.3d at 1299
    .
    Even though the veteran in Haines had a CUE claim
    already pending at death, we held that “a survivor has no
    standing to request review of a decision affecting the
    disability benefits of a veteran on the ground of 
    CUE.” 154 F.3d at 1301
    . And, contrary to Mrs. Rusick’s view, we
    drew a sharp distinction between section 5109A, which
    provides a procedure for veterans to seek benefits errone-
    ously withheld, and section 5121, which governs the
    rights of survivors. See 
    id. at 1301-02.
    Haines ultimately
    held that section 5109A “provides nothing more than a
    procedure” for a veteran “to seek reconsideration of a
    limited type of error in a prior decision. It cannot be read
    as providing a procedure for adjudication or payment of
    veterans benefits to survivors.” 
    Id. at 1302.
        Section 5109A’s retroactivity provision therefore ap-
    plies to reversals and revisions of prior decisions when the
    corresponding CUE determination is made pursuant to a
    RUSICK   v. GIBSON                                        7
    CUE claim filed under section 5109A. It does not apply to
    CUE determinations made pursuant to other remedial
    schemes, such as the regulatory scheme under 38 C.F.R.
    § 3.22, which provides for the award of DIC benefits to a
    surviving spouse in some situations where CUE is estab-
    lished, see 38 C.F.R. § 3.22(a), (b)(1). Thus, Mrs. Rusick
    cannot use the retroactivity provision of section 5109A to
    enlarge the scope of what it means for there to be an
    “existing rating[] or decision[]” under section 5121.
    Mrs. Rusick argues that Haines was “implicitly over-
    ruled” by the enactment of 38 U.S.C. § 5121A in 2008.
    That provision allows a survivor “who would be eligible to
    receive accrued benefits” due to a veteran under section
    5121 to be substituted on the veteran’s claim if the veter-
    an dies “while a claim for any benefit . . . is pending.” 38
    U.S.C. § 5121A(a)(1). Section 5121A, however, applies
    only to veterans who die on or after October 10, 2008.
    Veterans’ Benefits Improvement Act of 2008, Pub. L. No.
    110-389, § 212(c), 122 Stat. 4145, 4151. Therefore, even if
    section 5121A superseded part of our holding in Haines, it
    would not affect the applicability of Haines to this case,
    because Mr. Rusick died in 2000. Furthermore, the
    portion of section 5121A on which Mrs. Rusick relies did
    not undercut the critical portion of the decision in Haines.
    Even though section 5121A might now allow a survivor to
    substitute on a pending CUE claim that the veteran had
    filed before his death, Haines still stands for the proposi-
    tion that a survivor cannot initiate a freestanding CUE
    claim under section 5109A if the veteran had not already
    filed such a claim. See 
    Haines, 154 F.3d at 1301
    .
    Mrs. Rusick argues that section 5121A was enacted to
    give survivors the option to continue a veteran’s pending
    claim in addition to the already existing option of “start-
    ing anew” by filing an independent request for revision of
    a prior DVA decision under section 5121 after the veter-
    an’s death. According to Mrs. Rusick, even under Haines
    a qualifying survivor has always had the right to file a
    8                                          RUSICK   v. GIBSON
    fresh claim for revision under section 5121. That conten-
    tion, however, is directly contrary to our holding in Jones
    v. West that “without the veteran having a claim pending
    at time of death, the surviving spouse has no claim upon
    which to derive his or her own application” for accrued
    
    benefits. 136 F.3d at 1300
    .
    The legislative history of section 5121A confirms that
    Congress did not enact that statute under the impression
    that survivors had a preexisting right to pursue free-
    standing CUE claims under section 5121. Section 5121A
    was meant to address the problem of survivors who were
    not allowed to substitute on a veteran’s pending claim,
    and were thereby forced to “restart the claim ‘at the back
    of the line’” no matter how far up the adjudicative chain
    the veteran had pursued his claim by the time of his
    death. H.R. Rep. No. 110-789, at 17 (2008); see also
    “Helping Those Left Behind: Are We Doing Enough for
    Parents, Spouses, and Children of Veterans?”: Hearing
    Before the Subcomm. on Disability Assistance and Memo-
    rial Affairs of the H. Comm. on Veterans’ Affairs, 110th
    Cong. 29-33, 60-63 (2007) (statements of Christine Cote,
    Staff Attorney, National Veterans Legal Services Pro-
    gram). If a veteran had never filed a claim, however,
    there would be nothing to “restart,” and the perceived
    injustice Congress sought to remedy with the enactment
    of section 5121A would not exist. See Legislative Hearing
    on H.R. 1137, H.R. 3047, H.R. 3249, H.R. 3286, H.R.
    3415, H.R. 3954, and H.R. 4084 Before the Subcomm. on
    Disability Assistance and Memorial Affairs of the H.
    Comm. on Veterans’ Affairs, 110th Cong. 31 (2007)
    (statement of Bradley Mayes, Director, Compensation and
    Pension Service, Veterans Benefit Administration) (indi-
    cating, without correction, that he understood the intent
    of the proposed legislation that led to section 5121A as
    allowing for the DVA to adjudicate a claim that “is pend-
    ing at the time the claimant passes away . . . [b]ut only if
    that claim is pending at the time that the veteran dies.”).
    RUSICK   v. GIBSON                                        9
    Finally, Mrs. Rusick relies on our decisions in Padgett
    v. Nicholson, 
    473 F.3d 1364
    (Fed. Cir. 2007), and Pirkl v.
    Shinseki, 
    718 F.3d 1379
    (Fed. Cir. 2013). According to
    Mrs. Rusick, Pirkl “negated the rationale . . . that Mrs.
    Rusick could not benefit” from the Board’s 2009 CUE
    determination because the CUE determination was made
    after Mr. Rusick’s death. Pirkl, however, does not help
    Mrs. Rusick, because it involved a veteran whose CUE
    claim was pending at the time of his death and whose
    spouse was able to substitute on that claim after the
    veteran’s death, which occurred after the enactment of
    section 5121A. See Pirkl v. Shinseki, 
    2011 WL 5429156
    ,
    at *1 n.1 (Vet. App. Nov. 10, 2011). Likewise, Pirkl’s
    holding that “the finding of CUE can change the legal and
    factual background” against which subsequent rating
    decisions were made, such that those subsequent rating
    decisions could also contain 
    CUE, 718 F.3d at 1384
    , does
    not help Mrs. Rusick. In this case there are no subse-
    quent ratings or decisions that could be impacted by the
    revision of Mr. Rusick’s 1983 rating.
    In Padgett a surviving spouse sought to substitute on
    a veteran’s appeal to the Veterans Court. The court had
    recalled an en banc decision in the veteran’s favor upon
    learning of the veteran’s death, which occurred after the
    appeal had been submitted to the en banc 
    court. 473 F.3d at 1366-67
    . This court allowed substitution and distin-
    guished Haines, in which substitution was not allowed, by
    noting that Mr. Padgett’s case was in a state of finality at
    the time of his death that was not present in Haines. 
    Id. at 1369.
    In both Padgett and Haines, however, the veter-
    an had a claim pending at the time of death. Because Mr.
    Rusick did not have a claim pending when he died,
    Padgett’s distinction based on the degree of finality asso-
    ciated with the adjudication of the veteran’s claim cannot
    help Mrs. Rusick.
    In short, our precedents dictate that Mrs. Rusick can-
    not use a CUE determination made for the purpose of
    10                                     RUSICK   v. GIBSON
    awarding DIC to also receive accrued benefits, because
    Mr. Rusick did not have a CUE claim pending under
    section 5109A at the time of his death.
    AFFIRMED
    

Document Info

Docket Number: 2013-7105

Citation Numbers: 27 Vet. App. 1342, 760 F.3d 1342, 2014 U.S. App. LEXIS 13960, 2014 WL 3611141

Judges: Prost, Bryson, Dyk

Filed Date: 7/23/2014

Precedential Status: Precedential

Modified Date: 11/16/2024