Seymour v. Principi

• Citation: 245 F.3d 1377
• Parties: (Fed. Cir. 2001) CARLTON F. SEYMOUR, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee. 00-7074 DECIDED:
• Decision Date: 12 April 2001
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1377

245 F.3d 1377 (Fed. Cir. 2001)

CARLTON F. SEYMOUR, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

00-7074

United States Court of Appeals for the Federal Circuit

DECIDED: April 12, 2001

Appealed from: United States Court of Appeals for Veterans Claims Judge Ronald M. Holdaway

Thomas J. Reed, Widener University School of Law, Delaware Volunteer Legal Services, Inc., Veterans Assistance Program, of Wilmington, Delaware, argued for claimant-appellant.

Brian S. Smith, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director; and Harold D. Lester, Jr., Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and Michelle Doses Bernstein, Attorney, Department of Veterans Affairs, of Washington, DC.

Before RADER, SCHALL, and DYK, Circuit Judges.

DYK, Circuit Judge.

DECISION

This case presents the question whether a veteran's disability claim under 38 U.S.C. § 1151 survives the veteran's death. We hold that it does not and therefore that the Court of Appeals for Veterans Claims properly dismissed this appeal for lack of jurisdiction.

I

Carlton F. Seymour enlisted in the United States Army in July 1948. On December 2, 1950, he was wounded in the right thigh by North Korean machine gun fire. On December 12, 1952, Mr. Seymour was awarded an 80 percent combined disability rating as a result of this wound. Mr. Seymour became disabled and unable to work in 1979, and he was awarded a 90 percent combined disability rating in 1981.

In August 1984, Mr. Seymour underwent surgery at a VA hospital to relieve pain in his right toes. During routine blood work associated with this surgery, the laboratory reported an elevated platelet count. Between 1984 and 1989, VA physicians did not diagnose or treat Mr. Seymour for this condition. In 1989, Mr. Seymour's blood condition was diagnosed as myeloproliferative disorder, a disease involving excess production of certain kinds of blood cells (platelets, in Mr. Seymour's case).

In May 1990, Mr. Seymour initiated a claim for disability under 38 U.S.C. § 1151 for failure to diagnose, treat, and warn him of myeloproliferative disorder. He argued that but for the failure of VA physicians to timely diagnose or treat him for the myeloproliferative disorder, he would not have developed, or he would have developed with lesser severity, a myocardial infarction, hearing loss, and his myeloproliferative disorder.

Mr. Seymour's pursuit of his section 1151 claim proved to be a decade-long endeavor that ended only with his death. Although the circuitous course of these proceedings has little bearing on the outcome of this case, we nevertheless briefly outline them here. The VA Regional Office denied Mr. Seymour's claim on August 17, 1990. Mr. Seymour appealed to the Board of Veterans' Appeals ("Board"). The Board instituted a stay on all section 1151 claims from February 1992, through January 1995, during which this court and the Supreme Court upheld the Court of Appeals for Veterans Claims' ruling that section 1151 included no requirement of governmental negligence, despite a sixty-year-old agency regulation to the contrary. See Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994). Subsequently, on remand from the Board, the VA Regional Office again denied Mr. Seymour's claim for compensation. Mr. Seymour appealed again, and the Board for the second time remanded the case to the Regional Office. The Regional Office then rejected Mr. Seymour's claim for the third time. The Board affirmed on April 20, 1998, ruling that Mr. Seymour had not shown by competent evidence that he had suffered any additional disability resulting from VA treatment between 1984 and 1989. Mr. Seymour filed a timely notice of appeal to the Court of Appeals for Veterans Claims.

Mr. Seymour died on July 16, 1999, during the pendency of his appeal to the Court of Appeals for Veterans Claims. Constance A. Seymour, Mr. Seymour's surviving spouse, moved to be substituted as the party appellant. The Court of Appeals for Veterans Claims, citing Landicho v. Brown, 7 Vet. App. 42 (1994), held that Mr. Seymour's claim for disability compensation did not survive his death. It vacated the Board's April 1998 decision and dismissed Mr. Seymour's appeal for lack of jurisdiction. Mrs. Seymour appealed to this court.

II

The question of whether a veteran's disability claim under 38 U.S.C. § 1151 survives the veteran's death is a question of statutory interpretation, over which this court has jurisdiction under 38 U.S.C. § 7292(c). We review without deference the statutory interpretation of the Court of Appeals for Veterans Claims. See Richard v. West, 161 F.3d 719, 721 (Fed. Cir. 1998).

Section 1151 is found in chapter 11 of Title 38 of the United States Code, which provides disability benefits for qualifying veterans and death benefits for qualifying survivors. This court has not previously addressed whether a disability claim under 38 U.S.C. § 1151 survives the death of a veteran. However, it has previously determined that disability claims under other provisions of chapter 11 do not survive a veteran's death. See Richard v. West, 161 F.3d 719, 720 (Fed. Cir. 1998) (seeking compensation for service-connected disability under 38 U.S.C. § 1110); Haines v. West, 154 F.3d 1298, 1302 (Fed. Cir. 1998) (seeking to pursue claim under 38 U.S.C. § 5109A); Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed. Cir. 1996) (seeking compensation under 38 U.S.C. § 1110). These decisions are based on this court's determination that "the clear intent expressed by the structure and language of the statutory scheme . . . [is] that a veteran's claim to disability benefits terminates at death." Richard, 161 F.3d at 722.

In our previous decisions holding that disability claims do not survive a veteran's death, we explained that under chapter 11's statutory scheme, disability compensation is generally payable only to veterans, while death benefits are payable to survivors. See Richard, 161 F.3d at 722; Haines, 154 F.3d at 1300. Death benefits for service-connected post-1956 deaths are payable to survivors under 38 U.S.C. § 1310. In contrast, a veteran's entitlement to disability payments ends on the last day of the month before the veteran's death. See 38 U.S.C. § 5112(b)(1). The statute does allow certain survivors to seek payment of accrued benefits owed to a veteran at the time of the veteran's death. See 38 U.S.C. § 5121. However, the scope of this accrued-benefits provision is limited: it applies only to benefits "due and unpaid" at the time of the veteran's death, and benefits are limited to "a period not to exceed two years" prior to the veteran's death. Id. Moreover, a claim for accrued benefits under section 5121 is separate from a veteran's claim for disability payments "because it is based on a separate statutory entitlement for which an application must be filed to receive benefits." Zevalkink, 102 F.3d at 1241. We have previously held in the context of service-connected disability claims that the result of this statutory scheme is that "survivors may not pursue disability compensation claims of a veteran, even as heirs to the veteran's estate." Haines, 154 F.3d at 1300.

III

We turn now to section 1151 itself. Mrs. Seymour argues that the principles of Richard, Haines, and Zevalkink are not applicable to claims arising under section 1151. We begin our analysis with the language of the statute. Section 1151 provides, in relevant part:

Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, . . . and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded in the same manner as if such disability, aggravation, or death were service connected.

38 U.S.C. § 1151 (1994).¹

The plain language of section 1151 forecloses Mrs. Seymour's claim that Mr. Seymour's action survives his death. While the appellant urges that "claims under section 1151 are not based on service connection . . . [and should not] be precluded," Congress has specifically provided that disability compensation under section 1151 is "awarded in the same manner as if such disability . . . were service connected." Service-connected disability compensation is awarded under section 1110, and we have previously determined that a veteran's claim under section 1110 is extinguished by the death of the veteran. See Richard, 161 F.3d at 723. Therefore, it follows directly from the language of section 1151 that a claim for disability under section 1151 is extinguished by a veteran's death.

In contrast to a veteran's disability claim, a death benefit claim under section 1151 is not extinguished by a veteran's death. Sections 1310 (for post-1956 deaths) and 1141 (for pre-1957 deaths) make clear that a death benefit claim for a service-connected death is never a claim by the veteran, but rather a claim by the survivors. Thus, there is no anomaly in recognizing the continued existence of the death benefit claim under section 1151 while extinguishing the veteran's disability claim.

In an attempt to distinguish claims under section 1151 from other claims under chapter 11, the appellant asserts that section 1151 is historically linked to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). In a suit under the Federal Tort Claims Act, Mr. Seymour's pending action would not have lapsed at his death, and Mrs. Seymour would have been substituted in his place. See Richards v. United States, 176 F.3d 652, 657 (3rd Cir. 1999). According to Mrs. Seymour, she should therefore be allowed to continue Mr....