Haynes v. Shinseki, 050913 FEDFED, 2013-7027

Docket Nº:2013-7027
Opinion Judge:Per Curiam.
Party Name:THERESA H. HAYNES, Claimant-Appellant, v. Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee.
Attorney:Theresa H. Haynes, Spring, Texas, pro se. K. Elizabeth Witwer, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, J...
Judge Panel:Before Dyk, Bryson, and Reyna, Circuit Judges.
Case Date:May 09, 2013
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

THERESA H. HAYNES, Claimant-Appellant,

v.

Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee.

No. 2013-7027

United States Court of Appeals, Federal Circuit

May 9, 2013

This disposition is nonprecedential.

Appeal from the United States Court of Appeals for Veterans Claims in No. 10-3420, Judge William A. Moorman.

Theresa H. Haynes, Spring, Texas, pro se.

K. Elizabeth Witwer, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Scott D. Austin, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before Dyk, Bryson, and Reyna, Circuit Judges.

Per Curiam.

Theresa Haynes appeals from the decision of the Court of Appeals for Veterans Claims ("Veterans Court"). The Veterans Court affirmed the decision of the Department of Veterans Affairs ("VA") denying her entitlement to dependency and indemnity compensation ("DIC"). We affirm.

Background

Section 1151 of title 38 of the U.S. Code provides for DIC benefits for survivors of veterans whose non-service-connected deaths were "caused by hospital care, medical or surgical treatment, or examination furnished [to] the veteran" by the VA. See 38 U.S.C. § 1151(a)(1). Prior to October 1, 1997, the survivor did not need to show any fault on the part of the VA in order to establish entitlement under section 1151, so long as the medical treatment was the proximate cause of the veteran's death. See 38 U.S.C. § 1151 (1994) (providing DIC benefits to "any veteran . . . suffer[ing] injury . . . as the result of" VA medical care); Brown v. Gardner, 513 U.S. 115 (1994) (holding that the statute, as then in force, contained no requirement of fault). In 1996, however, Congress amended the statute, effective October 1, 1997, to require the survivor to prove that "the proximate cause of the disability or death was . . . carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the [VA] in furnishing the hospital care, medical or surgical treatment, or examination." See 1997 Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act ("VA Appropriations Act"), Pub. L. No. 104-204, § 422(a), (c), 110 Stat. 2874, 2926-27 (1996) (amending 38 U.S.C. § 1151).

Ms. Haynes's late husband, Emil P. Haynes, served in the U.S. Army from April 1968 to April 1970. In January and February 1987, Mr. Haynes was hospitalized at a VA facility for surgical treatment of a service-connected knee disability. The records from that hospitalization do not disclose any complaints of, or treatment for, any gastrointestinal maladies. In March 1987, Mr. Haynes provided a medical history to the VA's medical staff, in which he denied having any gastrointestinal problems. In December 1987, Mr. Haynes was admitted to a private hospital, complaining of abdominal pain, and was diagnosed with colon cancer. According to notes made by the treating physician at the private hospital, Mr. Haynes claimed to have been treated at a VA hospital "approximately a year [earlier]" for severe abdominal pains, and to have undergone medical tests that revealed the presence of "a spot on his intestine." J.A. 47. According to the same notes, Mr. Haynes reported also that the VA did not follow up on these test results. Mr. Haynes underwent a colectomy at the private hospital, but died of colon cancer in April 1990.

After Mr. Haynes's death, his widow, Ms. Haynes, filed a claim for DIC benefits under section 1151, alleging that the VA's failure to diagnose his cancer caused his premature death. The VA regional office denied her claim, and in 1996 the Board of Veterans' Appeals ("Board") affirmed. See In re Hearne-Haynes, No. 89-15 288 (Bd. Vet.App. Nov. 27, 1996). Ms. Haynes did not appeal the Board's decision to the Veterans Court, and it became final.

In January 1999, Ms. Haynes sought to reopen her claim, citing new and material evidence in the form of a copy of the private physician's notes from 1987 and a signed affidavit in which she testified that her husband had sought treatment at a VA hospital for abdominal discomfort and bloody stool prior to his diagnosis of colon cancer. See 38 U.S.C. § 5108 (allowing a claim to be reopened on grounds of "new and material...

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