538 F. App'x 904
Fed. Cir.2013Background
- Hunter is the surviving spouse of Vietnam veteran Walter R. Hunter who died January 24, 1980 from cancer likely caused by Agent Orange exposure.
- In 1980 the VA denied service-connection for her husband’s death; she did not appeal the decision.
- The Agent Orange Act of 1991 created liberalizing provisions and the RO awarded DIC benefits with an effective date of September 25, 1985.
- The Board denied an earlier effective date in 1994, a decision that became final.
- In 2007 Hunter renewed her request for an earlier DIC effective date; the RO, Board, and Veterans Court denied, and she appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the liberalizing Act 1991 sets a floor for the DIC effective date. | Hunter argues for an earlier date than 1985. | Shinseki contends the date cannot be earlier than the liberalizing act’s effective date. | Cannot be earlier than September 25, 1985. |
| Whether Hunter's current claim constitutes a viable freestanding appeal. | N/A (not explicitly stated here beyond procedural posture). | The freestanding appeal is unauthorized and not viable. | Not reached. |
Key Cases Cited
- Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994) (liberalizing law defined by substantive change creating new entitlement)
- Williams v. Principi, 310 F.3d 1374 (Fed. Cir. 2002) (effective date of liberalizing act governs earliest award date)
- Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (CUE/new and material evidence standards not met for reopening)