Weiger v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court Of Appeals
For The Federal Circuit
__________________________
CHARLOTTE WEIGER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7084
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-4314, Judge Ronald M.
Holdaway.
__________________________
Decided: January 13, 2011
__________________________
VIRGINIA A. GIRARD-BRADY, ABS Legal Advocates,
P.A., of Lawrence, Kansas, for claimant-appellant.
JAMES R. SWEET, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
2 WEIGER V DVA
F. HOCKEY, JR., Assistant Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and MARTIE S. ADELMAN, Staff Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before LINN, SCHALL, and DYK, Circuit Judges
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 situa-
tion 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 S-
toll. However, a prior panel decision is binding law unless
it is overruled by the Supreme Court or this court sitting
WEIGER V DVA 3
en banc. Newell Co. v. Kenney Mfg. Corp., 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.