Kernea v. Shinseki
724 F.3d 1374
Fed. Cir.2013Background
- Donald Kernea, a WWII veteran, had service-connected diabetes; his VA disability rating increased over time to 100% effective December 13, 1965; he died February 23, 1969.
- Flora Kernea, the widow, was awarded DIC in 1969 under 38 U.S.C. § 1310 and in 2003 sought enhanced DIC under 38 U.S.C. § 1311(a)(2) (requirement: veteran was rated or "entitled to receive" total disability for a continuous 8 years immediately preceding death).
- Mrs. Kernea advanced two theories: (1) clear and unmistakable error (CUE) in past VA rating decisions, and (2) a hypothetical-entitlement theory (a de novo determination that the veteran would have been rated 100% for the requisite 8 years).
- The Board denied CUE for failure to identify a specific erroneous rating decision, and concluded the VA regulation 38 C.F.R. § 3.10(f)(3) (promulgated 2005) bars hypothetical-entitlement claims and could be applied retroactively to Mrs. Kernea’s 2003 claim.
- The Veterans Court affirmed: it found the Board’s Princess Cruises retroactivity analysis reasonable and held the court lacked jurisdiction to review the factual question whether Mrs. Kernea adequately pleaded a CUE claim.
- The Federal Circuit affirmed, holding (a) § 3.10(f)(3) may be applied retroactively to Mrs. Kernea’s 2003 claim, and (b) it lacked jurisdiction to review the CUE pleading/factual issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 38 C.F.R. § 3.10(f)(3) may be applied retroactively to bar hypothetical-entitlement § 1311(a)(2) claims filed before the rule’s effective date | Kernea: § 3.10(f)(3) changed the law completely and cannot be applied to her 2003 claim; Hix-era law permitted hypothetical claims | Gov.: The law was already moving to prohibit hypothetical claims (NOVA II and regulatory amendments); Princess Cruises factors support retroactivity | Affirmed: All three Princess Cruises factors weigh for retroactive application; § 3.10(f)(3) bars Kernea’s hypothetical-entitlement claim |
| Whether the court can review the Board’s dismissal of Kernea’s CUE claim for failure to identify a specific rating decision | Kernea: Record and pro se status show she raised a valid CUE claim (including 1961 decision where VA found CUE) | Gov.: Review would require resolving factual/claim-content issues outside this court’s jurisdiction under 38 U.S.C. § 7292(d)(2) | Affirmed: Federal Circuit lacks jurisdiction to review the factual/claim-content CUE determination |
Key Cases Cited
- Princess Cruises, Inc. v. United States, 397 F.3d 1358 (Fed. Cir.) (framework for assessing retroactivity of agency rules)
- Landgraf v. USI Film Prods., 511 U.S. 244 (Sup. Ct.) (principles on retroactivity of statutes/rules)
- Hix v. Gober, 225 F.3d 1377 (Fed. Cir.) (held hypothetical-entitlement claims permitted under § 1311 under prior regulatory text)
- Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir.) ("NOVA II": affirmed VA’s reinterpretation of § 1311(a)(2) and remanded for rulemaking)
- Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir.) (applied Princess Cruises and upheld retroactive application of VA rule prohibiting hypothetical-entitlement § 1318 claims)
- Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir.) (applied Rodriguez reasoning to similar § 1318 challenge; supported retroactivity)