"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Wednesday, October 15, 2014

Roberts: SBP and DIC Offsets and Non-prejudicial Error




Jacqueline S. Roberts v. Robert A McDonald, Case Number 13-1240, decided October 7, 2014 concerns the VAs attempt to offset a DIC award by the amount of SBP benefits a surviving spouse received.
While alive, the veteran had his monthly disability award reduced under the Surviving Benefits Plan (SBP) and after his death, the spouse began to receive SBP payments.  Meanwhile, the spouse also filed a DIC claim  Five years later, DIC was awarded with an effective date of her husband’s death.  Shortly thereafter, the RO was told by the Defense Finance and Accoutning Service that the wife had received approximately $30,000 in SBP payments and the RO decided to withhold that amount from DIC payments (basically withheld the past due DIC benefits) based on 38 C.F.R. Section 3.658.  The spouse appealed.

The Court heard the case and agreed to vacate and remand for a new decision.  By law a survivor cannot receive both SBP and DIC.  However 10 U.S.C. Section 1450 appears to apply to overpayments of SBP, and states a reduction in SBP payment may be made, but not of the DIC.  The statute also allows limited authority for the DoD to recoup SBP payments, but also includes safeguards for the survivor.  The VA conceded to the Court that 38 C.F.R. Section 3.658 did not apply, but argued other statutory and regulatory provisions authorize the VA to deduct SBP payments from a DIC award and therefore there was no prejudicial error.

The Court vacated and remanded for a new decision that takes into account all regulations and statutes.  The Court also rejected the non-prejudicial error argument.  They said the point of a statement of the case as issued by the VA is to give the veteran notice of the authority relied upon and thus give the opportunity to challenge the decision on the correct legal basis or authority.  Id. at *6.

While this case deals with a rather narrow issue, its consideration of non-prejudicial error and rejection of the VA position that failing to address the proper statute or regulation is not important because the point of a Statement of the Case is to give a veteran an opportunity to challenge a decision on the correct legal basis or authority is potentially applicable to a broad number of cases.

Authored by Judge Moorman and joined by C.J. Kasold and Judge Bartley.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/

Wednesday, October 8, 2014

Cacciola: CUE When A Case Has Been Decided by the Court



Thomas F. Cacciola v. Sloan D. Gibson, Opinion Number 12-1824, decided July 22, 2014 concerns a claim for CUE when the case had previously been decided by the Court of Appeals for Veteran Claims.
The veteran had sought a higher rating and an earlier effective date which both been denied in a prior Board decision.  The veteran appealed to the court but the Court found the issue regarding the initial compensable rating was abandoned.  He then filed a CUE claim as to an earlier effective date and a higher initial compensation rate.  Importantly, 38 C.F.R. Section 10.1400(b) states all final Board decision are subject to revision except decisions on issues that have been “appealed to and decided by a court of competent jurisdiction”.

The Court found that a veteran “expressly abandons an issue in his initial brief or fails to present any challenge and argument regarding an issue, the abandoned issue generally is not reviewed by the Court” and thus “an abandoned issue is not decided by the Court for purposes of determining the availability of a collateral attack based on CUE.”  Id. at *2.  “Accordingly, in such instances, a claimant is not barred from bringing a motion to reverse or revise a Board decision on an abandoned issue.”  Id.

“To be clear, the Court notes that abandonment of an issue on appeal, whether express or implied, is different from the situation in which an appellant states that he is appealing the Board’s decision on an issue, but then makes no arguments, or insufficient arguments, challenging the Board’s determination.  In such instances, the Court generally affirms the Board’s decision as a result of the appellant’s failure to plead with particularity the allegation of error and satisfy his burden of persuasion on appeal to show Board error.”  Id. at *15. 

The Court then actually dealt with the issue of CUE in this case and determined there was no error.  The Court stated “the crux of [the veteran’s] argument is that the 2012 Board decision did not adequately weigh the 1985 examination report and that the Board ‘may have’ reached a different conclusion had this evidence been properly considered.”  Id. at *18.  This simply did not rise to the level necessary for a CUE claim.

Authored by Judge Schoelen and joined by Judge Pietsch. Chief Judge Kasold concurred in a separate opinion which expressed his displeasure with the Court’s prior decision in Fagre v. Peake, 22 Vet. App. 188 (2008).  Fagre found it appropriate to delay  a claimant who seeks Board reconsideration of a decision on benefits from appealing another adverse decision in the same Board decision until the request for reconsideration was resolved.  The Chief judge apparently feels there should be no dispute the Court has jurisdiction over a part of a Board decision that denies benefits and sees no reason to delay a decision as to that issue under Fagre.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/