*1 whose stem is coated insert- prosthesis construction precluding stems coated ing prosthesis into a canal cement, with bone either before or after charged with bone cement. insertion, satisfying from the “coated stem” limitation.
Finally, court this reaches this conclu- understanding sion with the that the writ- Ill description patent ten of the ’985 includes sum, references to “coated” and this court “uncoated” reverses the district patent stems. The ’985 gen- finding summary discusses two court’s judgment that eral embodiments of the invention—one the claims of ’214 patents and ’985 are embodiment with stems coated before in- indefinite and invalid under 35 U.S.C. sertion and another with stems that are § 112. This court construes the term See, not coated e.g., before insertion. ’985 “transverse sectional dimensions” to refer (stem 4,11. patent, col. 15-30 coated before to the cross-sectional prosthe- area of the (stem insertion), 11.39-50 not coated before along sis the entire length portions of the insertion). The references in the pat- ’985 of the bone specified by the claims. This merely ent to a “coated stem” refer to the court vacates the district grant court’s stem and its coating, not to the naked stem summary judgment of no infringement of See, or the coating e.g., patent, alone. ’985 patent claims of the ’985 in view of its (“In col. preferred 15-21 embodi- erroneous claim construction pre- which stem’s, ment, the base material ais suit- cludes infringement for stems coated with able metal whose transverse sectional di- cement, bone either before or after inser- along its length mensions entire tion. this court remands this case slightly undersized relative to the trans- to the district court for proceed- further verse sectional dimensions of the prepared ings. stem socket. The stem’s base material is fully covered with coating. a thin COSTS transverse sections of the part coated stem party Each shall bear its own costs. are oversized in relation correspond- REVERSED-IN-PART, VACATED- ....”) ing prepared sections of the socket IN-PART, REMANDED added). (emphases In contrast the em- using bodiment an “uncoated” stem re-
quires that “[t]he uncoated stem 18 will implanted
have to be by the use of a bone cement to a cement liner around form 8,11.
stem (emphasis 18.” Id. col. 32-35 added). Indeed, a stem lined with cement STOLL, Claimant-Appellant, Viola M. after insertion satisfies the “coated” limita- v. parties agreed tion. Both placing NICHOLSON, Secretary R. James layer of bone cement on the stem before Affairs, Respondent- Veterans insertion meets the “coated stem” limita- Appellee. tion of claim 1. Because claim 1 is an No. 04-7007. apparatus claim process without limita- tions, this court detects no difference United of Appeals, States Court “coating” for a stem covered with bone Federal Circuit. cement before insertion a stem cov- 29, 2005. March ered with bone cement insertion into Consequently, stem socket. this court vacates the portion of the district court’s *2 Wedemeyer & Wedemeyer, D.
Daniel California, Ana, argued Prangley, of Santa On the brief was claimant-appellant. for Chisholm, Robert Chisholm Chisholm & V. Providence, Rhode Kilpatrick, of Island. Attorney, Carolyn Craig, Trial Com- J. Division, Branch, Civil Litigation mercial Justice, of Department of United States DC, argued respondent- Washington, were Pe- her on the brief appellee. With General, Keisler, Attorney ter D. Assistant Cohen, Director, E. and David M. Robert Kirschman, Jr., Of Assistant Director. Hipol- were Richard J. counsel on brief it, Counsel and Acting Assistant General Adelman, Attorney, United Martie S. Affairs, of Department of Veterans States Washington, DC. LOURIE, NEWMAN, and
Before LINN, Judges. Circuit for the court filed Circuit Opinion Dissenting opinion filed Judge LOURIE. Judge PAULINE NEWMAN. by Circuit LOURIE, Judge. Circuit (“Stoll”) appeals from Viola M. Stoll States Court decision of the United (the Appeals for Veterans Claims “Veter- Court”) the decision affirming ans’ Appeals denying Board of Veterans’ previously established service connection dependency indemnity claim for com- for the COPD before his death. On recon- (“DIC”) pensation benefits on ground sideration, however, the Board denied the that her former husband’s death was not agreed with the RO *3 service-connected. Stoll v. Principi, 18 that and its implementing regu- Vet.App. 417 (Vet.App.2003). We affirm. lation, § 3.300(a), 38 C.F.R. prohibited ser- vice connection for death attributable to a
BACKGROUND veteran’s in-service tobacco use. Stoll was the wife of a army deceased appealed Stoll the Board’s decision to Stoll, veteran. The John W. Court, the Veterans’ arguing that 38 duty served on active in the United States 3.300(a) was not applicable to her Army 1994, from 1942 to 1946. In March claim, that the Board misinterpreted 38 he filed a claim for service connection for U.S.C. and that can- emphysema that he smoking attributed to not specific override the instruction to 11, Army. 1998, while in the On March award survivors of service-connected vet- Department of regional Veterans Affairs erans DIC pursuant benefits to 38 U.S.C. (“RO”) office him awarded a thirty-percent 1310(a).2 disability rating for chronic obstructive The Veterans’ Court persuaded was not (“COPD”) pulmonary disease secondary to by arguments, Stoll’s and affirmed his dependence. service-connected nicotine Board’s decision. The recognized Service connection for Mr. court disability 9, was an that it previously effective date of March had held that “precludes service connection for purposes of a 9, 1998, DIC claim filed after June 10, 1999, On June Mr. Stoll died from that is based a veteran’s service- pneumonia 22, caused COPD. On June disability connected or death which is ca 1999, Ms. Stoll submitted a claim for DIC pable of being attributable to the veteran’s benefits, urging that her husband’s death in-service use of products.” tobacco resulted from a service-connected disabili- 21994702, ty. 1999, In 2003 *2 July (citing WL RO denied Stoll’s Kane v. (2003)). DIC claim interpretation 97, based on its Principi, Vet.App. of 38 102 Ap 1103(a)1 prohibited U.S.C. that service plying precedent, its the court determined connection for a veteran’s death attribut- that Stoll’s DIC was filed after June products able to the use of during tobacco 9, 1998, and that her husband’s death was the veteran’s service. attributable to his in-service use of tobacco products. according to the appealed and, the RO’s decision court, a 2001, “claim for July generally DIC is treat Board of Veterans’ Appeals claim, granted ed as a regardless service connection for the new veter- of the status an’s death ground on the adjudications that he had concerning service-con- 1103(a) provides 1. 38 as provides follows: 2. 38 U.S.C. as follows: law, Notwithstanding any provision 31, any other When veteran dies after December 1956, disability a veteran's or death shall not be from a compen- service-connected or personal considered to have disability, resulted from pay sable shall de- injury pendency suffered or disease indemnity compensation contracted in the naval, military, children, line of in the active surviving spouse, such veteran’s air parents. service for of this title on the The standards and criteria for injury basis that it determining resulted from or disease whether or not products attributable to the use of applicable tobacco service-connected shall be those during veteran the veteran’s service. 11 of this title. that were not service- related disabilities brought by the nected-disability claims Id., of the date that statute connected as death.” WL his veteran before 9, enacted, argues Thus, June 1998. Stoll 21222011, the court concluded was at *4. her hus- from does could not benefit that Stoll established service status. like her husband who service-connected band’s prior to June connection for disabilities Kane, ruling in the Veter on its Based such of survivors of or DIC claims rejected argument ans’ Court previously established who have an DIC requires award if even the veteran’s Id., at *5. 2003 WL benefits. attribut- service-connected Kane, court concluded *4 to tobacco use. able 1103(a) §of the mandate did not override for death or prohibiting analyzes position, her Stoll support To in- 1103(a). to a veteran’s disability attributable Specifically, § she language the of Kane, 17 (citing Id. service tobacco use. of the term “ser- relies the absence 102). contrary, the On the Vet.App. By in not us- vice-connected” the statute. 1310(a) spe § that Kane court determined “service-connected,” in- but ing the term that service connection cifically provided finding for reciting predicate the stead must be based on of DIC injury suf- personal service connection— 1103(a) § con of and chapter 11 Title in line of fered or disease contracted “[njotwithstand- clause nullifying tains the only asserts that the statute —Stoll of law.” Id. ing any provision other prospective claims for service addresses and excludes claims from veter- connection to court. timely appealed this We Stoll ans who have established jurisdiction to 38 U.S.C. pursuant have for their disabilities. Other- connection § 7292. Stoll, wise, could according Congress DISCUSSION by simply us- ambiguity have avoided this in the ing the term “service-connected” by statutory interpretation We review leg- Stoll relies on the statute. de novo. Andrews v. Veterans’ interpreta- history support her islative (Fed.Cir. Principi, 351 F.3d 1136 1103(a). congression- § tion of She cites 2003). jurisdiction to have exclusive We report stating al conference any to the challenge and decide “review currently receiving service-connected ben- regulation any validity any of statute or by not affected the enact- efits would be brought thereof interpretation [sec 1103(a). statement, §of From this ment 7292], interpret tion and to constitutional § does not affect Stoll asserts pre to the extent statutory provisions, of such service- DIC claims of survivors necessary to a decision.” 38 sented and connected veterans. 7292(c) (2000). may not re § We U.S.C. application of fact or of law findings
view argues also that she is entitled Stoll facts, that an except to the to the extent 1310(a), § DIC benefits under 38 U.S.C a constitutional issue. Id. appeal presents mandating pay- interprets which she as 7292(d)(2); West, 179 § Bustos v. F.3d of who die ment to the survivors (Fed.Cir.1999). 1378, 1380 disabilities, includ- from service-connected ing disabilities are attributable that the Veter- appeal, On Stoll contends products during use of tobacco veteran’s misinterpreted 38 U.S.C. ans’ Court appar- his service. Stoll asserts claim for denying § DIC granting of such tobacco- only prohibition § ent According benefits. inapplica- claims under is for fatal tobacco- related precludes DIC benefits view, 101(16) ble. is a more guage 1103(a), the latter precedence “narrow” statute that takes prohibits statute by DIC claims survivors later-enacted, over the more “general” of service-connected veterans who have 1103(a). prohibition under died from injury or disease attributable to Secretary tobacco use. The questions argues Stoll that the Veterans’ probative value of portions Stoll’s cited interpretation Court’s is in- legislative history. According to the consistent with 38 11593 and Secretary, legislative history According 3.9574. to her inter- preserving discussed veter- pretation regulation, of that statute and as ans’, survivors’, rights, legisla- and the of March Mr. service-con- history tive did not address the statute’s Therefore, years. nected for ten she as- applicability to DIC claims. serts, the veteran’s service connection irrevocable, eligible and she is for DIC The Secretary also challenges Stoll’s as- benefits under notwithstanding sertion that her claim for DIC benefits interpretation the Veterans’ Court’s of under prohibited is not 1103(a). Stoll further contends that be- contends that cause the veteran’s service connection was terms, its own explicit *5 1103(a). in compliance § severed with 38 limited Secretary The 3.105(d), § her husband continued to ac- disputes charge § is years crue service-connection purposes for the “general” § more statute and fulfilling ten-year the protection period is the more “narrow” statute. According 1159 and 3.957 even after his Secretary, true, to the opposite in death § thus precedence must take over 1310(a). § In supporting the denial of Stoll’s DIC 1103(a), §
claim under Secretary Finally, the Secretary responds to the (the Veterans Affairs “Secretary”) argument cites concerning § 1159 by noting 101(16)5, the language § of 38 U.S.C. that the veteran enjoy did not service con- which defines the term “service-connected” any 10-year period. Instead, nection for purposes for of Title 38 of the Secretary argues United peri- that the accrual States Code. The argues that od Mr. for Stoll’s service connection ceased similarity the substantial in the lan- in 1998 he According when died. provides 3. 38 U.S.C. 1159 as follows: requisite son concerned did not have the discharge. service or character of The any disability Service connection 10- for or granted year period computed death will be or continued under title 38 from the ef- U.S.C., Department which has been in effect fective date of the for 10 or of Veterans years finding more will not be except severed Affairs of service connection to the showing original grant a that the was based rating severing date of the effective decision clearly connection, military on fraud or it is shown from compliance service after with person records that the 3.105(d). concerned did not protection afforded in this requisite have the service or character of extends to section claims for or death [DIC] discharge. compensation. provides 4. 38 C.F.R. 3.957 as follows: 101(16) provides 5. 38 U.S.C. as follows: any disability Service connection for or means, The term '‘service-connected” granted with death or continued under title death, Code, respect that such dis- United States which has been in ef- ability aggravated, was incurred or years fect for 10 or more or that will not be severed except upon showing original a the death resulted from a in- grant clearly aggravated, was based on fraud or it is curred or in line of in the naval, per- military, shown from records that the active or air service. issue of ser- adjudicated the for had the veteran’s because Secretary, Moreover, in statements connection. his vice cannot connection survive service that ser- history indicating legislative in the death, could not be connection service their will not have his vice-connected accrual after effect for veterans, living abridged apply benefits death either. claims they do not new but address follow, we the reasons For survivors. properly Court that the Veterans’ conclude agree we with Stoll Although claim. of Stoll’s DIC affirmed the denial living does not en surviving spouse is a Under service previously established who' have if the DIC benefits veter titled to receive connection, that survivors of it is clear disability. from a service-connected an dies inherit the veteran’s do not death such veterans a veteran’s determining whether pur status service-cbnnection disabili a service-connected resulted from The veteran’s enti of DIC claims. poses explicitly refers ty, Code, and a survivor’s entitlement tlement the United States of Title 38 of claims. As Veterans’ incorporat two different thus which includes the sur RO treats recognized, preclusion. connection ing its claim for ser DIC claim as new nullifying vivor’s ignore the we cannot 1103(a): of the status “regardless “Notwith vice clause contained ” law, adjudications concerning service-con .... provision of standing any other brought by the nected-disability Thus, over claims clearly controls death.” before his assertion that veteran omitted). (citations *4 statute, and there “general” WL *6 previously has ex this court precedence over fore not be should 11 of Title 38 of the narrowly- plained more purportedly “draws a distinction statute, States incorrect. The issue United Code tailored generally disability compensation, is between which of the two statutes here is not veterans, other, only and death and payable to broader, they relate to each but how benefits, to survivors.” facts, payable and, pension under the current (Fed. West, F.3d the Haines v. agree we with Accordingly, controls. Cir.1998). Secretary and the Veterans’ claims of surviv applies to DIC 1159, 3.957, §§ on Stoll’s reliance veterans, if of even the veter ing spouses 3.105(d) The stat misplaced. is also service previously have established ans regulations pre implementing and. its ute connection for their disabilities. continuing an otherwise severing clude surviving however, of a service-connection status agree, with Stoll that
We veteran, here to a They inapplicable to them does not position that who has have service con veteran died. selves who established considered can to be prior to the a veteran continue for their disabilities nection death is even after his “service-connected” date of June enactment 5112(b)(1), to untenable. Under 38 disability if was attributable even ser a deceased veteran ceases receive during the veterans’ tobacco use day last payments on the not our case. The vice-connected But that service. dies, survivor, and we have the month before he not the vet appellant here is the service- held a veteran’s previously is to ad The intent of eran. not survive his connected does dress new claims service West, 719, 720 v. 161 F.3d have death. Richard living veterans who the claims (Fed.Cir.1998). If a NEWMAN, veteran cannot re- PAULINE Circuit Judge, following ceive service-connected benefits dissenting. death, his it is inconsistent for a deceased opinion categorizes court’s the wid-
veteran to be to continue to able accrue ow’s claim as a “new claim for service to fulfill ten-year connection” which must be established protection period under 1159 or 3.957. However, afresh. the veteran’s service Mr. Stoll was not service-connected for ten connection was finally established. years, peri- because the service-connection The widow’s entitlement to dependency- died, od of accrual ceased in 1998 when he and-indemnity compensation does not re- arguments and thus relating quire redetermination of the veteran’s ser- §§ 1159 inapplicable. or 3.957 are vice-connection after his death. Stoll makes other arguments support There is one claim of service-con- position, including purported distinc- nection, the claim of the veteran. Mr. tion between the words “attributable” and Stoll’s service-connection was “grandfa- pertinent “attributed” as used in the stat- thered” because his entitlement was estab- utes. do not find them We to be convinc- lished before the changed statute/rule ing. regarding tobacco-caused disabilities. above, For the explained reasons This entitlement does not require indeed, — rely cannot on her husband’s it not permit does after his —reassessment connection status to save her DIC claim. death. The service-connected disability Instead, her claim for DIC benefits consti- established during his lifetime determines tutes new claim for service connection the widow’s entitlement. governed by § that is We accord- It is thus incorrect to hold that ingly affirm the Veterans’ Court’s decision widow must reestablish service-connection that Mr. Stoll’s death was not shown to be after the veteran dies. The rights widow’s service-connected for of Stoll’s compensation flow from the DIC claim. The cause of his death was life, as established during his pneumonia caused his service-connected and on COPD, his death his service-connection party disputes and neither that the *7 beyond challenge. my COPD was From col- attributable to his in-service leagues’ circumstances, ruling tobacco use. Under such service-connection precludes proven Stoll’s claim. must now be on law explicitly did not to this I respectfully CONCLUSION dissent. The Veterans’ Court did not err in con-
struing preclude
Ms. Stoll’s claim for DIC benefits. Ac-
cordingly, the decision of that court
AFFIRMED.