Paul W. Hyatt v. James B. Peake

excess of 50% for the period of December III. CONCLUSION 21,1998, 2,1996, to March nor to a disabil- In consideration of the foregoing, the ity rating in excess of period for the 30% 7, 2006, March Board decision is AF- 6, 1999, beginning May adequate. See FIRMED. Gilbert, 1 Vet.App. at 57.

The Court finds Mr. argu- Reizenstein’s respect ment with to the effective date of temporary his disability total rating to be unpersuasive. He contends that the evi-

dence which on the Board grant- relied in ing temporary disability total rating as of 22, 1998,

March correctly supports an ef- HYATT, Paul Appellant, W. fective date for rating of March 1997. He argument bases his on the PEAKE, M.D., James B.

March hospital discharge report that Affairs, Appellee, states that his Global Assessment of Func- tioning score “currently was highest is Hyatt, Julianne Movant. 41.” argues R. 134. He that this state- ment indicates highest that his score in the No. 04-0957.

past year which warrants a 100% United States Court of Appeals disability rating year effective one earlier for Veterans Claims. than the date of his hospi- admission tal. plain reading of that July 2008. statement does not support his argument.

Further, as the explained in its

decision, it assignment based its of a tem- porary total disability rating on Mr. Reiz-

enstein’s admission to the hospital on

March for detoxification, alcohol and noted that it was then that his Global Assessment of Functioning score had be-

come “more severe.” R. at 15. The Board noted that hospital discharge reported primary revealed a diagnosis of dependence,

alcohol gave but Mr. Reizen- doubt, stein the benefit of the May examination, score of 31

at the time of his hospitalization was relat- post-traumatic ed to his stress disorder. Id. The Court concludes that the Board

provided adequate reasons or bases for

assigning March as the effective a temporary total rating. Gilbert, See 1 Vet.App. at 57. According- ly, the Court will affirm the March 2006

Board decision.

212

ORDER

PER CURIAM. 7, 2004, filled

On June April of an Appeal Notice of Veterans’ decision 2007, 6, panel of (Board). August On appeal. this on a decision this issued Court 2007, entered its 29, the Court August On rep On October judgment. movant, Hyatt, notified the resented August Court Hyatt filed 24, 2007; accordingly, Mrs. party and for for substitution motions tunc. re-issued to be 2007, filed On October opposition to responses in to an order response motions. additional Court, parties submitted impact of the briefing regarding on the in Pekular decision Court’s recent Mansfield, v. Pekular pending motions. (2007) (instituting a three- 21 495 substitution govern whether part test to appropriate). veteran’s claim

“[A] v. Richard at death.” benefits terminates (Fed.Cir.1998). West, 722 qualified allows 5121 U.S.C. 38 payment seek the veteran to survivors of that veteran at owed to of accrued benefits Seymour the veteran’s death. the time of F.3d 1379 Principi, v. 245 2001). limits specifically Section only that “to include accrued at death was entitled which individual decisions or ratings or existing under file at on evidence in those based unpaid.” ... 38 due and of death and West, 5121; Haines see (Fed.Cir.1998). When issued that a Hyatt’s appeal, determined could necessary VA remand was so by obtaining duty to its assist comply with member’s court-martial HAGEL, service KASOLD, another Before records, potentially relevant to are which LANCE, Judges. the nature and extent of Mr. statute, an Article I court created has during wounds received his service. adopted jurisdictional “the restrictions of 21 Vet.App. the Article III case or controversy rubric.” beneficiary As Mrs. accrued Derwinski, Mokal v. 1 Vet.App. statutorily (1990). limited to decisions and evi- satisfy To the “irreducible consti- dence in the Hyatt’s file at the date of Mr. tutional minimum of standing,” a litigant death, she asks to be substituted and that must demonstrate three Lujan elements. judgment be pro re-issued nunc tunc in 555, Wildlife, 560, 504 U.S. Defenders of 5121(a) Hyatt’s appeal Mr. so that her 2130, S.Ct. 119 L.Ed.2d 351 may benefit from the Court’s deci- First, the complainant must have suffered Hyatt’s appeal. sion on Mr. “injury in fact” that is both “concrete particularized.” and Id. (quoting Allen v. The U.S. Court of for 737, Wright, 756, 468 U.S. 104 S.Ct. the Federal Circuit held that this Court (1984)). 82 L.Ed.2d 556 “The injury al- may issue nunc pro tunc relief where a leged must ... be distinct palpable, and veteran dies after his case is submitted for ... and not conjectural abstract or or decision, opinion but before the is issued. Allen, hypothetical.” 468 U.S. at (citations omitted). S.Ct. 3315 Second, (Fed.Cir.2007). For the Court to issue there must abe causal relationship be- judgment as of the date of the veteran’s injury tween the and the conduct of the death, (1) the veteran must have died after defendant. Lujan, 504 U.S. at (2) his case decision, was submitted for Third, S.Ct. 2130. it must “likely” be substitution must appropriate in that “ injury will be by ‘redressed a favor- person seeking substitution must have ” able decision.’ (quoting Id. Simon v. E. standing both under Article III of the U.S. Ky. Rights Org., 426 U.S. Constitution Welfare by being and adversely affect (1976)). 48 L.Ed.2d 450 ed Board decision under 7266(a), 38 U.S.C. and the consider In Padgett, the court determined that justice ations of fairness outlined continuing “[t]he relevance preclusive Supreme in Court Mitchell v. Over effect that the issues in Padgett’s decided man, 62, 64-65, 103 U.S. 26 L.Ed. 369 appeal have for Padgett’s] [Mrs. section (1880), Pekular, must be satisfied. 21 Vet. 5121(a) claim are sufficient to meet App. at 500-01. ‘case or controversy’ requirement” pursu- There is no dispute here that Mr. ant to III. Article 473 F.3d at 1370. How- Hyatt’s ever, case was submitted for decision Hyatt’s Mr. in very stands before he died. Mr. died after posture different than that of Padgett. opinion case, issued its in case, but Padgett’s the Court reversed days five judgment before was entered in the Board’s granted decision and second- the matter. At issue instead is ary whether service connection for a right-hip dis- substitution of Mrs. appropri ability. See Issuing id. at 1366. the deci- ate. The argues that pro sion nunc effectively tunc granted Hyatt lacks sufficient Article III standing death, benefits to before his to be properly substituted Mr. which then unpaid” became “due and appeal. III 5121(a) Article purposes Constitution Padgett’s claim. grants jurisdiction This, federal courts course, over continuing relevance “cases” and “controversies.” U.S. Const. to Mrs. Padgett’s claim because III, Court, Art. cl. 1. although This statutorily such a claim is predicated en- that “she reasoned Id. The court due, claim. on decisions

tirely on benefits establishing ei- way from long still was file at the time in the evidence or served husband had Here, her deceased ther that death. veteran’s that his military rele or continuing States the same in the United not have does 5121(a) claim. with such service.” to Mrs. death was connected vance issues not the Court Whether Id. to Mr. day prior tunc to the Hyatt. Our for Mrs. The same is true death, grant imminent no there is acquir- colleague assumes dissenting connection as to service entitlement anoth- certain court-martial ing Additionally, there Padgett. was in there of dispositive would be er service member Board for the to further evidence is no 215, post Dissenting opinion the claim. accrued benefits the because consider events, (“In after course of the normal the limited to evidence explicitly is claim decision, the Secre- of the issuance the of veteran’s the file” at “in rec- the court-martial tary would secure the court not include does death —which rendered.”). be a decision would ords and ordered VA records that the Court martial Pelea, long in Mrs. a as Accordingly, there to on remand. obtain For on her claim. way prevailing from Hyatt’s appeal in Mr. nothing decided was granted, enti- Hyatt’s claim to be thus Mr. requisite “continuing have the would that benefits, even Hyatt to accrued tling Mrs. claim. to Mrs. relevance” tunc, pro nunc a is issued judgment if F.3d at 1370.

Padgett, 473 required to still be opinion medical would in Pe explained As the Federal Circuit in injuries described evaluate whether Nicholson, judg making this Court’s lea in any, report, resulted the court-martial pro nunc in effective tunc ment currently claimed or contributed to death, Pad- prior [Mr.] that to his “meant not affect would disability. Substitution to dis his entitlement gett had established be- Hyatt’s accrued claim Mrs. statutory Under ability benefits. sub- cause, permit were to her even we scheme, recover his widow could those for the and the search court-mar- stitution 1290, 1293 benefits.” successful, there would tial records was 2007). the situation contrasted The court in the record insufficient evidence still be Pelea, in with the who in widow justify to of death at the time Mr. and indem seeking dependency while of benefits. See an award sought whose estate nity compensation and reasons, 5121. For these The Feder place. in to be substituted her appropriate. not holds that substitution denial of affirmed this Court’s al Circuit substituted, Mrs. cannot be As because, although Pelea substitution inappropriate is also pro nunc tunc relief judgment our requested that be not general rule that veteran’s due to prior pro to a date to nunc tunc reissued with his for benefits ends death. death, pointed court out even her at 1370. As Mr. Padgett, 473 F.3d favor were in her made if the no has died and substitution to the date her tunc effective made, Hyatt’s appeal is moot. can be death, not entitled would still to she Therefore, the Court will dismiss this Court had benefits because accrued jurisdiction. As lack of Hyatt’s appeal for the Board should only determined that to his appeal was mooted due ade VA had consider whether further hold that Mrs. we death and because additional evi informed her what quately substituted, cireum- cannot be both support to her she should submit dence KASOLD, voluntary to the Judge, dissenting: stances that are not due parties, justice requires conduct A decision denied Mr. in with- any prior decision the case be disability compensation for his lumbar “ Bancorp Mortg. drawn or vacated. U.S. spine disability because there was ‘no Partnership, Mall Co. Bonner 513 U.S. medical, evidence, lay consistent 130 L.Ed.2d 233 nature and extent of the to wound Mr. (1994) (“A party who seeks review the Hyatt’s back that he in suffered service.” ruling, merits of an adverse but is frustrat- Hyatt v. 21 Vet.App. circumstances, vagaries ought ed in-service wound was acquiesce not in fairness be forced a negligent stabbing by the result of judgment.”). Accordingly, the Court fellow service member who disciplined withdraws its decision and by court-martial. Id. at 392. Because vacates the Board’s October involving injury court-martial records prevent acting from as frequently contain evidence regarding the any a barrier to the success claimant extent and injury, nature of that the Court seeking accrued benefits. held that these records were relevant to claim and that it was error not

Accordingly, it is to secure them. Id. Given the Board’s claim, denying stated basis for ORDERED that the Court’s clearly possible it is the court- 2007, decision is WITHDRAWN. It is martial records reveal the nature and ex- further wound, tent of Mr. the Board January ORDERED that the Court’s might spine disability find that his lumbar 2008, stay is lifted. It is further finding service connected. Such a give would rise to compensation. ORDERED that the October Board decision is with respect events, VACATED In the normal course of after Court; appealed decision, to the matters to the and Hyatt issuance the Secre- tary this is DISMISSED for lack of would secure the court-martial rec- jurisdiction. ords and a decision would be rendered.1 majority my Secretary”); Wagner 1. The and misconstrue statement to the v. United States, (Fed.Cir.2004) apparently my (finding misunderstand dissent. Con 365 F.3d 1358 characterization, trary analysis inapposite to their I do not be harmless error in circum- ap- lieve the addition of the court-martial records stance where decision maker was not Thus, necessarily dispositive pointed by proper authority). will be of the claim. It unlike Pelea, possible appellant that the court-martial records will the situation in where the file, nothing add material to the but it is also could not be awarded benefits based possible very that it will add the information Court's decision that there had been inade- award, case, grant quate the Board to needs an and notice in the merits here, dispositive. possible therefore it could be Who knows it is that Mrs. could be Secretary might what the or Board do if that awarded benefits if the records court-martial part part information is considered of the record? were considered of the claims file. Al- 5103A(d) (medical § though necessarily 38 dispositive, See U.S.C. exam not not was the as it) necessary Padgett, if claim can be decided without case in the situation here is much 5107(b) (claimant Pelea, § Padgett and entitled to benefit of closer than to and under Gober, doubt); Savage v. 10 these circumstances —where cer- Mrs. circumstances, (in tainly 495-96 certain nex will not be awarded benefits if the evidence); may by lay part us be established court-martial records are not considered cf. Sec'y might Disabled Am. Veterans v. of the file and be awarded benefits if (Fed.Cir.2005) Affairs, they personal 419 F.3d 1318 a are—Mrs. has stake in (38 appropriate. ensures "one review on this matter and substitution is instance, however, ceedings before this decision). issued. as to that shortly after the is entitled to Although widow or documents main- records Whether to Mr. any accrued benefits owed by government and held tained any paid, not been determination that have erroneously not to have been ob- regard with to accrued benefits made Secretary might be deemed tained on the file at the time death. See accrued benefits part of the record for 5121(a) (accrued in- benefits 38 U.S.C. shortly appellant dies purposes when which an individual was clude benefits “to issuance of the decision and after Court’s existing ratings under entitled death physically ob- the documents are before in the or those based on evidence decisions decided, yet but Mrs. tained has not been death”). Obviously, file at the date of Hyatt’s personal, non-generalized interest non-generalized in- personal, has a standing and provides in this matter her having terest in the court-martial Raines v. E.g., warrants substitution. when the determination on her considered Byrd, 521 U.S. rendered, her accrued benefits is because (1997) (to standing, L.Ed.2d 849 establish already has been denied husband’s claim allege particularized injury plaintiff must the court-martial on the record without “personal dispute); stake” in the Nicholson, records. See (Fed.Cir.2007) (“It is rea- (2007) (potential accrued benefi- suspect the RO and sonable adversely standing ciaries have affected reject Padgett’s board would also decision). by Board controlling effect of the claim absent majority’s The reliance on Pelea v. Ni En Opinion.”) Banc cholson, seeks to be Accordingly, 2007), misplaced. Pelea involved a case in this case for her deceased substituted in which this Court held that the argument in furtherance of her husband inadequately notified the claimant about that the decision will cause Sec might information that be sub additional retary to consider the court-martial docu claim, support mitted in and the part Appel ments as of the claims file. matter was remanded. Mrs. Pelea died lant’s Motion at If substitution is denied 3. shortly thereafter and the Court denied withdrawn, then there and the case her estate’s motion for substitution. 497 argument is no for consideration of the appeal, at 1291-92. On Federal Secretary. court-martial noted that even if this deci Circuit Court’s hand, On the other should Mrs. sion were issued nunc tunc and substi substituted for her late husband and the no im granted, tution were would have withdrawn, she could Hyatt case not be pact on an because this award (and argument later on present her below merely Court’s decision held that notice necessary) that the court-martial inadequate. Id. at 1293. Other been part claims file virtue records are stated, noth wise the Pelea decision added being rendered be contrast, ing to the record. fore her husband died. Bell v. Derwins Cf. the court-martial rec ki, decision held (per 2 612-13 order) by the ords should have been obtained (holding curiam that documents Secretary and considered. Given the ex generated by were the Secre either plicit for the Board’s denial of Mr. tary prior or submitted to a Board decision basis claim, statutorily part pro- Hyatt’s of the record of these records could indeed were impact have a on Mrs. ac- direct claim, part

crued benefits deemed record. above, I

For the reasons stated dissent denying from the order substi- tution in this matter. HENDERSON, Appellant,

David L. PEAKE, M.D., Secretary James B. Affairs, Appellee. Stoever, Denver, of Veterans Thomas W. Colora- do, for appellant. No. 05-0090. Mayerick, Deputy Richard Assistant

United States Court of Counsel, Hutter, General with Paul J. Act- for Veterans Claims. Counsel; ing General R. Camp- Randall bell, Counsel, Assistant General all of Argued Nov. 2007. D.C., Washington, appellee. July Decided 2008. Mailander, Blauhut, William S. E. Linda Zajac,

and Jennifer A. all Washington, D.C., for Paralyzed amicus curiae of America. GREENE, Judge,

Before Chief SCHOELEN, HAGEL Judges. GREENE, Judge: Chief Before the is Mr. Henderson’s of an decision of (Board) the Board of Veterans’ Department that denied entitlement to (VA) special monthly Veterans Affairs compensation. Henderson’s Notice (NOA) Appeal January was received on days more than 120 after the Board Consequently, decision was mailed. he why was ordered to show cause untimely. should not be dismissed as requested Henderson the time for filing his NOA to the Court be extended

Case Details

Case Name: Paul W. Hyatt v. James B. Peake

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Jul 22, 2008

Citation: 22 Vet. App. 211

Docket Number: 04-0957

Court Abbreviation: Vet. App.