DOROTHY M. MOFFITT, Claimant-Appellant,
ROBERT A. MCDONALD, Secretary of Veterans Affairs, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 10-4078, Judge Lawrence B. Hagel, Judge William Greenberg, Judge William A. Moorman.
DOROTHY M. MOFFITT, of Victorville, California, Pro se.
ALLISON KIDD-MILLER, Senior Trial Counsel, 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, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Acting Assistant General Counsel, and RACHAEL T. BRANT, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before LOURIE, MOORE, and O'MALLEY, Circuit Judges.
O'malley, Circuit Judge.
Dorothy M. Moffitt (" Mrs. Moffitt" ) appeals pro se from a decision of the United States Court of Appeals for Veterans Claims (" Veterans Court" ) affirming the Board of Veterans' Appeals (" Board" ) decision that denied entitlement to enhanced dependency and indemnity compensation under 38 U.S.C. § 1311. Moffitt v. Shinseki, 26 Vt.App. 424 (2014). For the reasons explained below, we affirm.
Mrs. Moffitt is the widow of Douglas A. Moffitt, a veteran of World War II. Mr. Moffitt served on active duty in the United States Army from July 1944 until May 1946, when he was discharged as a result of injuries sustained during service. In
1946, Mr. Moffitt applied for disability benefits and the Department of Veterans Affair's Regional Office (" RO" ) awarded him a combined disability rating of 100%. In a subsequent rating decision, however, the RO reduced Mr. Moffitt's benefits to a combined 60% disability rating, with special monthly compensation, effective March 1953. With the exception of a three-month period in 1958, during which Mr. Moffitt received a temporary disability rating of 100%, his combined rating remained at 60% until his death in 1982.
When a veteran dies from a service-connected or compensable disability, the surviving spouse, children, and parents may qualify for dependency and indemnity compensation (" DIC" ). 38 U.S.C. § 1310. If the veteran's death is not service-connected, 38 U.S.C. § 1318 provides that the surviving spouse and children may qualify for DIC if the veteran received, or was " entitled to receive," benefits for a service-connected disability that was rated totally disabling for the 10-year period prior to the veteran's death. 38 U.S.C. § 1318(b).
After Mr. Moffitt's death, Mrs. Moffitt sought DIC benefits pursuant to 38 U.S.C. § 1151, which provides that, when a veteran suffers an additional disability or death as the result of VA hospitalization, medical or surgical treatment, or examination, disability or DIC benefits shall be awarded in the same manner as if such disability or death were service-connected. In a June 1991 decision, the Board concluded that, " [w]ith the benefit of the doubt being resolved in the appellant's favor, the veteran's death was the result of injury incurred during hospitalization at a VA facility, within the meaning of the pertinent laws and regulations." Appendix (" A" ) 40. Accordingly, the Board granted Mrs. Moffitt's claim for DIC benefits. The Department of Veterans Affairs (" VA" ) also posthumously granted Mr. Moffitt's pending claim for total disability based on individual unemployability (" TDIU" ) and assigned a 1979 effective date.
In July 1999, Mrs. Moffitt filed " a motion to revise a January 1980 rating decision that denied her husband's benefits for post-operative left inguinal hernia and phlebitis on the basis of clear and unmistakable error." Moffitt, 26 Vt.App. at 426. A month later--in August 1999--Mrs. Moffitt applied for enhanced DIC benefits pursuant to 38 U.S.C. § 1311, which applies where the veteran " was entitled to receive" compensation on the basis of a total disability rating for " a period of at least eight years immediately preceding death." 38 U.S.C. § 1311(a)(2). According to Mrs. Moffitt, her husband " should have been rated at  100% [disabled] for 10 or more years [prior to his death]." Moffitt, 26 Vt.App. at 426 (alteration in original).
The RO sent Mrs. Moffitt a letter indicating that it was deferring consideration of her claim for enhanced DIC benefits " pending the completion of litigation in the case of Hix v. West." Id. (citing Hix v. West, 12 Vt.App. 138 (1999)). The issue in Hix was whether the " entitled to receive" language in § 1311 permits an award of enhanced DIC benefits based on
a " hypothetical entitlement theory." A " hypothetical entitlement" claim--like Mrs. Moffitt's--is a new claim that " would permit the Board to adjudicate a claim for DIC benefits on a hypothetical basis, 'without regard to claim filing or claim dispositions during the veteran's lifetime.'" Kernea v. Shinseki, 724 F.3d 1374, 1377 (Fed. Cir. 2013) (quoting Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373, 1377 (Fed. Cir. 2003) (" NOVA II " )). " In other words, the Board could make a ' de novo determination of the veteran's disability, upon the entirety of the record including any new evidence presented by the surviving spouse.'" Id. (quoting Hix v. Gober, 225 F.3d 1377, 1380-81 (Fed. Cir. 2000)).
In the interim, the RO found no clear and unmistakable error (" CUE" ) in the January 1980 rating decision that denied Mr. Moffitt benefits for a hernia and thrombophlebitis. The Board affirmed, and Mrs. Moffitt appealed that decision to the Veterans Court. In May 2002, Mrs. Moffitt-- who was represented by counsel--entered into a joint motion for partial remand for the Board to consider her still-pending claim for enhanced DIC benefits. In the motion, the parties agreed that " the denial of entitlement to accrued benefits on the basis of CUE in a January 18, 1980 rating decision that denied service connection for a hernia and thrombophlebitis should be deemed abandoned." A46.
The Board remanded Mrs. Moffitt's claim for enhanced DIC benefits to the RO. In an April 2004 rating decision, the RO denied her claim on the merits, finding that the evidence of record failed to show that Mr. Moffitt became totally disabled eight years or more before his death. Mrs. Moffitt appealed that decision to the Board.
In an August 2008 decision, the Board denied Mrs. Moffitt's claim for enhanced DIC benefits, finding that the VA's regulations, which were amended while Mrs. Moffitt's claim was pending, precluded her hypothetical entitlement theory. Specifically, " 38 C.F.R. § 20.1106 was amended to clarify that, as with decisions under 38 U.S.C. 1318, decisions under 38 U.S.C. 1311(a)(2) will be decided taking into consideration prior dispositions made during the veteran's lifetime of issues involved in the survivor's claim." A61. And, in 2005, the VA promulgated 38 C.F.R. § 3.10(f), which defined the phrase " entitled to receive" in § 1311(a)(2) to preclude hypothetical entitlement. See Dependency and Indemnity Compensation: Surviving Spouse's Rate, 70 Fed. Reg. 72211, 72212 (Dec. 2, 2005).
The Board explained that, while Mrs. Moffitt's claim was pending, this court upheld VA regulations barring use of the hypothetical entitlement theory to establish entitlement to DIC benefits under either § 1311 or § 1318. See NOVA II, 314 F.3d at 1378-80 (holding that the VA could construe " entitled to receive" in § 1311 and § 1318 to preclude hypothetical entitlement claims). For example, the Board cited this court's decision in Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008), where we held that an amendment to 38 C.F.R. § 3.22 barring hypothetical entitlement as a basis for DIC benefits under section § 1318 could be applied to claims filed prior to the amendment.
Given this precedent, the Board concluded that " the Courts have held that 'hypothetical entitlement' as an additional basis for establishing eligibility to enhanced DIC benefits is prohibited regardless of when the claim is filed." A63. Although the Board recognized that the VA's regulations permit enhanced DIC benefits where the deceased veteran filed a claim during his lifetime and would have received total disability ...