Zevalkink v. Brown

• Decision Date: 17 December 1996
• Docket Number: Nos. 94-7101,95-7012,s. 94-7101
• Citation: 102 F.3d 1236
• Parties: Ophel H. ZEVALKINK, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee. Eleanor M. HESSE, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1236

102 F.3d 1236

Ophel H. ZEVALKINK, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

Eleanor M. HESSE, Claimant-Appellant, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

Nos. 94-7101, 95-7012.

United States Court of Appeals Federal Circuit.

Dec. 17, 1996.

Michael P. Horan, Paralyzed Veterans of America, Washington, DC, argued, for claimant-appellant Ophel Zevalkink.

Miguel A. Serrano, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for respondent-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and James M. Kinsella, Assistant Director. Of counsel were Richard J. Hipolit, Deputy Assistant General Counsel, and Nicole Sideris, Attorney, Department of Veterans Affairs, Washington, DC.

Christopher Arne Cole, Kirkland & Ellis, Washington, DC, argued, for claimant-appellant Eleanor M. Hesse. With him on the brief were Kenneth W. Starr and Jay I. Alexander.

Andrea I. Kelly, Attorney, Commercial Litigation Branch, Civil Division, Department

of Justice, Washington, DC, argued, for respondent-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, James M. Kinsella, Assistant Director, and Lydia K. Griggsby, Attorney. Of counsel was Bryant G. Snee, Attorney. Of counsel, on the brief were Richard J. Hipolit, Deputy Assistant General Counsel, and Nicole Sideris, Attorney, Department of Veterans Affairs, Washington, DC.

Before ARCHER, Chief Judge, and RICH, and MICHEL, Circuit Judges.

ARCHER, Chief Judge.

The issue in No. 94-7101 is whether a claimant under 38 U.S.C. § 5121 (1994), for a deceased veteran's accrued benefits, must present new and material evidence to reopen the veteran's previously denied claim for benefits, and the issue in No. 95-7012 is whether such a claimant has standing to be substituted for a deceased veteran in the prosecution of the veteran's claim for benefits pending at the date of death before the Court of Veterans Appeals. These cases have been consolidated for purposes of disposition.

We affirm the holding of the Court of Veterans Appeals that new and material evidence is required to reopen a previously denied claim. We also affirm its decision refusing to substitute a claimant under § 5121 for the deceased veteran in a pending proceeding before the Court of Veterans Appeals.

BACKGROUND

A. In No. 94-7101, Mr. Zevalkink, a World War II veteran, had pursued a claim for service connection for a kidney disorder prior to his death. That claim was denied in a decision dated April 19, 1985, by the Board of Veterans' Appeals (BVA or Board).

After the death of her husband, Ophel H. Zevalkink (Mrs. Zevalkink), as surviving spouse, filed a claim with the Los Angeles, California Regional Office (RO) of the now Department of Veterans Affairs (VA) for accrued benefits under 38 U.S.C. § 5121(a). Mrs. Zevalkink asserted that her husband had been entitled, at the time of his death, to an award of service connection for a kidney disorder. ¹

On August 2, 1989, the RO denied Mrs. Zevalkink's claim for accrued benefits on the basis that no new information had been submitted since the last hearing on Mr. Zevalkink's claim. The RO also stated that "[a] review of the evidence in file does not show [service connection] for any of the conditions on appeal, hence the prior denial [sic] are confirmed & continued."

Similarly, in a June 1991 decision, the BVA agreed with the RO's determination that no new and material evidence had been submitted since the 1985 denial of Mr. Zevalkink's claim for service connection for a kidney disorder and that, as a result, the claim could not be reopened. The Board stated that "[i]n order to now establish entitlement to service connection for kidney disability, there must be new evidence which is relevant and material and which establishes a basis for service connection for kidney disease."

Mrs. Zevalkink then appealed to the Court of Veterans Appeals which, in an in banc decision, affirmed the BVA. Zevalkink v. Brown, 6 Vet.App. 483, 488-89 (1994). ² The court agreed with the BVA's determination that Mrs. Zevalkink had to show the presence in her husband's file of "new and material evidence" relating to the kidney disorder in order to pursue her claim for accrued benefits under § 5121 based on that condition. Id. at 489. The court reasoned that Mrs. Zevalkink has appealed the Court of Veterans Appeals' determination that new and material evidence is required for a claimant under § 5121 to reopen a deceased veteran's claim.

this conclusion was required to give meaning to all parts of the statute and to harmonize § 5121 with other statutory provisions such as 38 U.S.C. §§ 7104(b) and 5108 (1994), regarding the finality and reopening of VA benefit claims. Id. at 491.

B. In No. 95-7012, Eleanor M. Hesse's (Mrs. Hesse) claim for accrued benefits under § 5121 is based on the claim of her husband, Burt Hesse, for disability benefits for chronic obstructive pulmonary disease, which was pending before the Court of Veterans Appeals at the time of his death. Mr. Hesse first applied for benefits in 1976. The RO and the BVA denied his claim in decisions dated February 8, 1977 and November 21, 1977, respectively. Mr. Hesse attempted to reopen his claim at least eight times between 1978 and 1988, each time submitting additional documentation or testimony. In 1984, Mr. Hesse submitted and relied on a 1945 letter awarding him service connection and 10% compensation for a "lung condition." In all instances, however, the BVA refused to reopen Mr. Hesse's claim. The BVA's last decision relating to Mr. Hesse's attempts to reopen his claim was on April 17.1990. See Hesse v. Derwinski, 2 Vet.App. 359, 360-61 (1992) (detailing the procedural history of Mr. Hesse's claim for service connection).

Mr. Hesse sought review of this last BVA decision by the Court of Veterans Appeals. ³ While this appeal was pending, however, Mr. Hesse died. After his death, the Court of Veterans Appeals, as was then its practice, see Landicho v. Brown, 7 Vet.App. 42, 47 (1994), substituted Mrs. Hesse as appellant in Mr. Hesse's appeal under Rule 43(a) of its Rules of Practice and Procedure.

With Mrs. Hesse pursuing her husband's claim, the Court of Veterans Appeals found, in a decision dated April 22, 1992, that the BVA had not adequately supported its findings and conclusions, and remanded the case to the BVA. Hesse, 2 Vet App. at 361. The court specifically asked the BVA to consider whether Mr. Hesse was entitled to benefits based on the 1945 letter or why that letter was not probative. On remand, the BVA again determined that no new evidence was present to justify reopening Mr. Hesse's claim. As to the 1945 letter, the BVA stated that its authenticity had not been proven under the best evidence rule and, therefore, refused to consider whether this letter established that the VA had granted Mr. Hesse service connection for a lung disorder rated at 10% disabling.

Mrs. Hesse again appealed to the Court of Veterans Appeals. At this time, however, the Court of Veterans Appeals had pending before it two cases: Zevalkink, discussed above, and Landicho v. Brown, 7 Vet.App. 42 (1994). In Landicho the Court of Veterans Appeals reconsidered its admittedly routine practice of permitting substitution under the court's Rule 43(a).

Rule 43(a)(2) provided:

After Notice of Appeal. If a party dies after a Notice of Appeal is filed or while a proceeding is pending in this Court, any person claiming entitlement to accrued benefits under 38 U.S.C. § 5121(a), the personal representative of the deceased party's estate, or any other appropriate person may be substituted as a party on motion by such person or by any party. If no such person exists, any party may suggest the death on the record and proceedings will then be as the Court directs.

The court decided that a party claiming entitlement to accrued benefits under 38 U.S.C. § 5121(a) could not be substituted for a deceased veteran in a pending proceeding involving the veteran's claim for disability compensation. ⁴ Landicho, 7 Vet.App. at 53-54.

The court reasoned that a veteran's disability compensation claim does not survive the veteran's death because under 38 U.S.C. § 5112(b) (1994), disability compensation is terminated on the last day of the month before the date of death. Id. at 47. As a result, the court concluded that no claim is pending at the time of the veteran's death as to which any party may be substituted. Id. The court pointed out that, although an accrued benefits claim may depend on the veteran's entitlement to unpaid disability compensation, it is a separate claim from the disability claim. Id.

The court then considered, given the separateness of the claims, whether for a claimant under § 5121 there was a continuing "case or controversy" and whether such a claimant would have standing to pursue the pending appeal. Id. at 48-49. The court determined that because there had been no adjudication as to whether the person to be substituted for the deceased veteran would be qualified under § 5121 to receive accrued benefits, any decision the court might render on service connection would be purely hypothetical. Id. The court also determined that a § 5121 claimant would not be "adversely affected" by an outstanding BVA decision because the § 5121 claimant's action is separate and distinct from the deceased veteran's BVA proceeding. Id. at 53.

Thus, in Landicho, the Court of Veterans Appeals decided it did not have jurisdiction to decide the merits of a deceased veteran's disability claim after the veteran's death and that, as a result, an accrued benefits claimant could not be substituted in a proceeding on a deceased veteran's claim. The court then amended its Rule 43(a)(2) so that accrued benefits claimants are not...