Bonner v. Wilkie, Case Number 18-6927, decided January 13, 2021 involves whether a veteran a CUE claim for service connection for the cause of death.
This involves a veteran with service in WWII, Korea, and Vietnam. He died in 1975 and the autopsy listed Hodgkin’s disease (a malignant lymphoma). The veteran’s spouse filed for DIC due to his death being from cancer and was denied in 1976.
In 1995 she filed a claim with the DOJ under the Radiation Exposure Compensation Act due to her husband’s participation in atomic weapons testing. DOJ sought a medical opinion from the NIH and explained the diagnosis may have simulated Hodgkin’s disease, it favored a non-Hodgkin’s Lymphoma (NHL) diagnosis.
As a result of the misdiagnosis, the spouse filed another claim for DIC, which was granted with an effective date corresponding to the second application date. She filed a NOD and sought an effective date as the date of his death. She ultimately was awarded an effective date of 1 year prior to the second application date. She appealed seeking the date of death as the effective date but lost before the CAVC and Federal Circuit.
In 2008, she sought to revise the 1976 RO decision based on CUE. She argued Section 3.313 should have applied retroactively and the evidence clearly showed his cause of death was misdiagnosed. The RO found not CUE saying the 1976 decision was based on the records available and law at the time.
The wife died and ultimately her son was substituted for the purposes of reimbursement. The Board then affirmed the RO decision saying the 1976 decision was final and she had been properly notified of the decision. The Board also stated that if the 1976 decision was not final it was subsumed by the 1995 RO grant and Board 2001 decision. Additionally, the Board found no CUE saying Section 3.313 had not yet been promulgated and could not serve as a basis for CUE; any argument that Section 3.313 had been misapplied by the RO in 1995 failed because that decision was subsumed by the 2001 Board decision; and, no records in 1976 indicated death was caused by NHL.
Before the Court, the veteran argued:
First, he argues that the Board erred when it determined that the February 1976 decision did not contain CUE because the RO impermissibly narrowed Mrs. Bonner's claim to exclude types of cancer other than Hodgkin's disease. Second, he maintains that the misdiagnosis of the cause of Admiral Bonner's death in 1975 constitutes CUE. Third, he contends that the February 1976 RO decision never became final and it is still pending under the Federal Circuit's decision in Ruel v. Wilkie. 23 Specifically, he asserts that Mrs. Bonner did not appeal the March 1976 RO decision because VA provided insufficient notice that it had denied her claim. In its March 1976 decision, the RO simply placed an "X" in the box labeled "disability or death not due to service" and crossed off the words "disability or." Essentially, he emphasizes that without providing any other information, the RO stated only: "death not due to service.
Finally, the appellant argues that Mrs. Bonner's claim asserting that Admiral Bonner's cause of death was "cancer" was incompletely adjudicated, because instead of addressing the claim for cancer broadly, the RO recharacterized her claim as one for only Hodgkin's disease, without explanation or notice.
Id. at *5-6.
The Court began by focusing on the prior judicial decisions in this case. In 2005, the Veterans Court the effective date provisions of Section 3.144(a) only allowed for a retroactive benefits of 1 year prior to the claim to reopen. It also determined the claim for cancer did not include NHL because the evidence of record at the time of death did not reasonably raise claims related to another form of cancer. It then noted the Federal Circuit in 2007 determined it lacked jurisdiction to address whether a claim for NHL was not supported by the evidence before the RO in 1976 and also the Veterans Court did not err when it determined the original claim was for Hodgkin’s disease.
The Court then considered the finality of the 1976 decision and determined the claimant failed to show insufficient notice of the 1976 RO decision. The Court also noted that even if there had been insufficient notice, that became moot when the RO granted the claim in 1995.
The Court then turned to the question of CUE. The Court noted the only evidence in 1976 was of Hodgkin’s Disease and that Section 3.313 (making NHL presumptive) did not yet exist. Therefore, “[b]ased on the evidence and the law as it existed at the time, we conclude that the Board's determination that there was no CUE in the February 1976 RO decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at *11.
The Court explained:
The Appellant’s arguments are based on evidence and law that did not exist at the time of the 1976 RO decision. Even if § 3.313's retroactive effective date would permit an award of presumptive service connection for NHL back to 1976 for DIC purposes, the record before the RO in February 1976 did not contain evidence of a diagnosis of NHL, because Admiral Bonner was not diagnosed with the condition until 1995. And even if we somehow were free to ignore that point, evidence about Admiral Bonner's cause of death that was before the RO is not undebatable. It is well established that this type of evidence cannot form the basis of CUE.
Id.at *11-12.
Judge Greenberg dissented. His dissent principally argues the Court’s precedents defining CUE are too narrow; “wrongly applied with a misplaced focus on protecting incorrect decisions rather than ensuring the just and correct result for the veteran.” Id. at *12. He also argued that the Court should exercise its equitable powers to ensure the veteran friendly system is justly administered.
This case is a crushing example of how the lack of scientific and medical knowledge in 1976 led to a bad decision that cannot be corrected now through CUE. It thus reveals how CUE does not adequately correct all injustices.
Decision by Judge Allen and joined by Chief Judge Bartley. Dissent by Judge Greenberg.
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