Monday, December 15, 2014

Rusick v. Gibson

Rusick v. Gibson, 760 F.3d 1342 (July 23, 2014)
Held: A CUE determination that results in an award of dependency and indemnity compensation (DIC) benefits cannot be used to receive accrued benefits where the veteran did not have a claim (CUE or otherwise) pending at the time of death.

Veteran was service connected for anxiety disorder and his disability rating was continued at 30% in 1983. In 1996, he was rated 100%. He passed away in 2000. At the time of his death he had no claims or appeals pending. His widow filed a claim for DIC benefits and was denied. Several years later, she filed another claim for DIC, asserting CUE in the 1983 decision. She argued that her husband should have been rated 100% based on evidence showing he was unemployable. The Board agreed and determined that she was entitled to DIC benefits under 38 U.S.C. § 1318, which allows for DIC benefits for a surviving spouse of a veteran who 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.” 760 F.3d at 1344 (quoting 38 U.S.C. § 1318). The RO implemented the Board’s decision, but denied her claim for accrued benefits under 38 U.S.C. § 5121, which, if granted, would have entitled her to the benefits Mr. Rusick would have received (i.e., 100% disability compensation) between 1983 and 1996. The Board affirmed the RO’s denial – and the CAVC affirmed the Board’s decision, holding that because the Board’s CUE determination was made after Mr. Rusick’s death, there was no rating decision when he died on which to base an accrued benefits claim. The Court rejected the argument that the corrected 1983 decision became an “existing decision” for purposes of section 5121, and held that a claimant cannot use the CUE statute to “override the specific provisions of section 5121.” Id.

The Federal Circuit agreed, noting that a surviving spouse can only be entitled to accrued benefits if the veteran had a claim pending at the time of death and that a veteran’s interest in a CUE claim dies with him/her. Id. at 1345-46. The Court added that the statute allowing for substitution, 38 U.S.C. § 5121A, was not applicable in this case because the veteran died in 2000, and section 5121A only applies to veterans who died on or after October 2008. Id. at 1346. The Court stated that even though section 5121A might allow a survivor to substitute on a pending CUE claim, the survivor cannot initiate a CUE claim. Id. The Court distinguished this case from its holdings in Pirkl v. Shinseki, 718 F.3d 1379 (Fed. Cir. 2013), and Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007), because the veterans in those cases had claims pending when they died. Id. at 1347. The Court held that a veteran’s survivor cannot use a CUE determination made for DIC purposes to also receive accrued benefits where the veteran did not have a CUE claim pending at the time of death. Id.

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