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United States Court of Appeals for the Federal Circuit
04-7007
VIOLA M. STOLL,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Daniel D. Wedemeyer, Wedemeyer & Prangley, of Santa Ana, California, argued
for claimant-appellant. On the brief was Robert V. Chisholm, Chisholm Chisholm &
Kilpatrick, of Providence, Rhode Island.
Carolyn J. Craig, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent-appellee. With
her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief were
Richard J. Hipolit, Acting Assistant General Counsel and Martie S. Adelman, Attorney,
United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Retired Judge John J. Farley III
United States Court of Appeals for the Federal Circuit
04-7007
VIOLA M. STOLL,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
_______________________
DECIDED: March 29, 2005
_______________________
Before NEWMAN, LOURIE, and LINN, Circuit Judges.
Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit
Judge NEWMAN.
LOURIE, Circuit Judge.
Viola M. Stoll (“Stoll”) appeals from the decision of the United States Court of
Appeals for Veterans Claims (the “Veterans’ Court”) affirming the decision of the Board
of Veterans’ Appeals denying her claim for dependency and indemnity compensation
(“DIC”) benefits on the ground that her former husband’s death was not service-
connected. Stoll v. Principi, No. 02-0788 (Vet. App. Aug. 21, 2003). We affirm.
BACKGROUND
Stoll was the wife of a deceased army veteran. The veteran, John W. Stoll,
served on active duty in the United States Army from 1942 to 1946. In March 1994, he
filed a claim for service connection for emphysema that he attributed to smoking while in
the Army. On March 11, 1998, a Department of Veterans Affairs regional office (“RO”)
awarded him a thirty-percent disability rating for chronic obstructive pulmonary disease
(“COPD”) secondary to his service-connected nicotine dependence. Service connection
for Mr. Stoll’s disability was given an effective date of March 9, 1994.
On June 10, 1999, Mr. Stoll died from pneumonia caused by COPD. On June
22, 1999, Ms. Stoll submitted a claim for DIC benefits, urging that her husband’s death
resulted from a service-connected disability. In July 1999, the RO denied Stoll’s DIC
claim based on its interpretation of 38 U.S.C. § 1103(a)1 that prohibited service
connection for a veteran’s death attributable to the use of tobacco products during the
veteran’s military service.
Stoll appealed the RO’s decision and, in July 2001, the Board of Veterans’
Appeals granted service connection for the veteran’s death on the ground that he had
previously established service connection for the COPD before his death. On
reconsideration, however, the Board denied the service connection and agreed with the
RO that § 1103(a) and its implementing regulation, 38 C.F.R. § 3.300(a), prohibited
service connection for death attributable to a veteran’s in-service tobacco use.
Stoll appealed the Board’s decision to the Veterans’ Court, arguing that 38 C.F.R.
§ 3.300(a) was not applicable to her claim, that the Board misinterpreted 38 U.S.C.
1
38 U.S.C. § 1103(a) provides as follows:
Notwithstanding any other provision of law, a veteran’s
disability or death shall not be considered to have resulted
from personal injury suffered or disease contracted in the
line of duty in the active military, naval, or air service for
purposes of this title on the basis that it resulted from injury
or disease attributable to the use of tobacco products by the
veteran during the veteran’s service.
04-7007 -2-
§ 1103(a), and that § 1103(a) cannot override the specific instruction to award survivors
of service-connected veterans DIC benefits pursuant to 38 U.S.C. § 1310(a).2
The Veterans’ Court was not persuaded by Stoll’s arguments, and affirmed the
Board’s decision. The court recognized that it had previously held that § 1103(a)
“precludes service connection for purposes of a DIC claim filed after June 9, 1998, that
is based upon a veteran’s service-connected disability or death which is capable of
being attributable to the veteran’s in-service use of tobacco products.” Stoll, slip op. at
3 (citing Kane v. Principi, 17 Vet. App. 97, 102 (2003)). Applying its precedent, the
court determined that Stoll’s DIC claim was filed after June 9, 1998, and that her
husband’s death was attributable to his in-service use of tobacco products. Moreover,
according to the court, a “claim for DIC is generally treated as a new claim, regardless
of the status of adjudications concerning service-connected-disability claims brought by
the veteran before his death.” Id., slip op. at 4. Thus, the court concluded that Stoll
could not benefit from her husband’s prior service-connected status.
Based on its ruling in Kane, the Veterans’ Court also rejected Stoll’s argument
that § 1310(a) requires an award of DIC benefits. Id., slip op. at 5. In Kane, the court
concluded that § 1310(a) did not override the mandate of § 1103(a) prohibiting service
connection for death or disability attributable to a veteran’s in-service tobacco use. Id.
2
38 U.S.C. § 1310(a) provides as follows:
When any veteran dies after December 31, 1956, from a
service-connected or compensable disability, the Secretary
shall pay dependency and indemnity compensation to such
veteran’s surviving spouse, children, and parents. The
standards and criteria for determining whether or not a
disability is service-connected shall be those applicable
under chapter 11 of this title.
04-7007 -3-
(citing Kane, 17 Vet. App. at 102). On the contrary, the Kane court determined that
§ 1310(a) specifically provided that service connection for purposes of DIC must be
based on chapter 11 of Title 38, and § 1103(a) contains the nullifying clause
“[n]otwithstanding any other provision of law.” Id.
Stoll timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C.
§ 7292.
DISCUSSION
We review a statutory interpretation by the Veterans’ Court de novo. Andrews v.
Principi, 351 F.3d 1134, 1136 (Fed. Cir. 2003). We have exclusive jurisdiction to
“review and decide any challenge to the validity of any statute or regulation or any
interpretation thereof brought under [section 7292], and to interpret constitutional and
statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. §
7292(c) (2000). We may not review findings of fact or application of law to the facts,
except to the extent that an appeal presents a constitutional issue. Id. § 7292(d)(2);
Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999).
On appeal, Stoll contends that the Veterans’ Court misinterpreted 38 U.S.C.
§ 1103(a) in denying her claim for DIC benefits. According to Stoll, § 1103 only
precludes DIC benefits for fatal tobacco-related disabilities that were not service-
connected as of the date that that statute was enacted, June 9, 1998. Stoll argues that
§ 1103(a) does not apply to veterans like her husband who established service
connection for disabilities prior to June 9, 1998, or DIC claims of survivors of such
veterans who have previously established service connection, even if the veteran’s
service-connected disability was attributable to tobacco use.
04-7007 -4-
To support her position, Stoll analyzes the language of § 1103(a). Specifically,
she relies upon the absence of the term “service-connected” in the statute. By not using
the term “service-connected,” but instead reciting the predicate finding for service
connection—personal injury suffered or disease contracted in the line of duty—Stoll
asserts that the statute only addresses prospective claims for service connection and
excludes claims from veterans who have already established service connection for
their disabilities. Otherwise, according to Stoll, Congress could have avoided this
ambiguity by simply using the term “service-connected” in the statute. Moreover, Stoll
relies on the legislative history to support her interpretation of § 1103(a). She cites a
congressional conference report stating that veterans currently receiving service-
connected benefits would not be affected by the enactment of § 1103(a). From this
statement, Stoll asserts that § 1103(a) does not affect DIC claims of survivors of such
service-connected veterans.
Stoll also argues that she is entitled to DIC benefits under 38 U.S.C § 1310(a),
which she interprets as mandating payment to the survivors of veterans who die from
service-connected disabilities, including disabilities that are attributable to the veteran’s
use of tobacco products during his service. Stoll asserts that the apparent prohibition of
granting such tobacco-related claims under § 1103(a) is inapplicable. In Stoll’s view,
§ 1310(a) is a more “narrow” statute that takes precedence over the later-enacted, more
“general” prohibition under § 1103(a).
Finally, Stoll argues that the Veterans’ Court’s interpretation of § 1103(a) is
inconsistent with 38 U.S.C. § 11593 and 38 C.F.R. § 3.9574. According to her
3
38 U.S.C. § 1159 provides as follows:
04-7007 -5-
interpretation of that statute and regulation, as of March 2004, Mr. Stoll was service-
connected for ten years. Therefore, she asserts, the veteran’s service connection is
irrevocable, and she is eligible for DIC benefits under § 1310(a), notwithstanding the
Veterans’ Court’s interpretation of § 1103(a). Stoll further contends that because the
veteran’s service connection was not severed in compliance with 38 C.F.R. § 3.105(d),
her husband continued to accrue service-connection years for purposes of fulfilling the
ten-year protection period under §§ 1159 and 3.957 even after his death in 1998.
In supporting the denial of Stoll’s DIC claim under § 1103(a), the Secretary of
Veterans Affairs (the “Secretary”) cites the language of 38 U.S.C. § 101(16)5, which
Service connection for any disability or death granted or
continued under title 38 U.S.C., which has been in effect for
10 or more years will not be severed except upon a showing
that the original grant was based on fraud or it is clearly
shown from military records that the person concerned did
not have the requisite service or character of discharge.
4
38 C.F.R. § 3.957 provides as follows:
Service connection for any disability or death granted or
continued under title 38, United States Code, which has
been in effect for 10 or more years will not be severed
except upon a showing that the original grant was based on
fraud or it is clearly shown from military records that the
person concerned did not have the requisite service or
character of discharge. The 10-year period will be computed
from the effective date of the Department of Veterans Affairs
finding of service connection to the effective date of the
rating decision severing service connection, after compliance
with § 3.105(d). The protection afforded in this section
extends to claims for [DIC] or death compensation.
5
38 U.S.C. § 101(16) provides as follows:
The term “service-connected” means, with respect to
disability or death, that such disability was incurred or
04-7007 -6-
defines the term “service-connected” for purposes of Title 38 of the United States Code.
The Secretary argues that given the substantial similarity in the language of §§ 101(16)
and 1103(a), the latter statute prohibits DIC claims by survivors of service-connected
veterans who have died from injury or disease attributable to tobacco use. The
Secretary also questions the probative value of Stoll’s cited portions of the legislative
history. According to the Secretary, the legislative history of § 1103(a) only discussed
preserving veterans’, not survivors’, rights, and the legislative history did not address
the statute’s applicability to DIC claims.
The Secretary also challenges Stoll’s assertion that her claim for DIC benefits
under § 1310(a) is not prohibited by § 1103(a). The Secretary contends that § 1310(a),
by its own explicit terms, is limited by § 1103(a). The Secretary also disputes Stoll’s
charge that § 1103(a) is the more “general” statute and § 1310(a) is the more “narrow”
statute. According to the Secretary, the opposite is true, and thus § 1103(a) must take
precedence over § 1310(a).
Finally, the Secretary responds to the argument concerning § 1159 by noting that
the veteran did not enjoy service connection for any 10-year period. Instead, the
Secretary argues that the accrual period for Mr. Stoll’s service connection ceased in
1998 when he died. According to the Secretary, because the veteran’s claim for service
connection cannot survive his death, service connection could not be in effect for
purposes of accrual after his death either.
aggravated, or that the death resulted from a disability
incurred or aggravated, in line of duty in the active military,
naval, or air service.
04-7007 -7-
For the reasons that follow, we conclude that the Veterans’ Court properly
affirmed the denial of Stoll’s DIC claim. Under § 1310(a), a surviving spouse is entitled
to receive DIC benefits if the veteran dies from a service-connected disability. In
determining whether a veteran’s death resulted from a service-connected disability,
§ 1310(a) explicitly refers to chapter 11 of Title 38 of the United States Code, which
includes § 1103(a), thus incorporating its service connection preclusion. Moreover, we
cannot ignore the nullifying clause contained in § 1103(a): “Notwithstanding any other
provision of law, . . . .” Thus, § 1103(a) clearly controls over § 1310(a). Finally, Stoll’s
assertion that § 1103(a) is a “general” statute, and therefore should not be given
precedence over § 1310(a), the purportedly more narrowly-tailored statute, is incorrect.
The issue here is not which of the two statutes is broader, but how they relate to each
other, and, under the current facts, § 1103(a) controls. Accordingly, we agree with the
Secretary and the Veterans’ Court that § 1103(a) applies to DIC claims of surviving
spouses of veterans, even if the veterans have previously established service
connection for their disabilities.
We agree, however, with Stoll that § 1103(a) does not apply to veterans
themselves who have established service connection for their disabilities prior to the
enactment date of § 1103(a), June 9, 1998, even if the disability was attributable to
tobacco use during the veterans’ military service. But that is not our case. The
appellant here is the survivor, not the veteran. The intent of § 1103(a) is to address
new claims of service connection, not the claims of living veterans who have already
had adjudicated the issue of service connection. Moreover, statements in the legislative
04-7007 -8-
history indicating that service-connected veterans will not have their benefits abridged
apply to living veterans, but they do not address new claims by survivors.
Although we agree with Stoll that § 1103(a) does not apply to living veterans who
have previously established service connection, it is clear that survivors of such
veterans do not inherit the veteran’s prior service-connection status for purposes of DIC
claims. The veteran’s entitlement and a survivor’s entitlement are two different claims.
As the Veterans’ Court recognized, the RO treats the survivor’s DIC claim as a new
claim for service connection, “regardless of the status of adjudications concerning
service-connected-disability claims brought by the veteran before his death.” Stoll, slip
op. at 4 (citations omitted). Moreover, this court has previously explained that chapter
11 of Title 38 of the United States Code “draws a distinction between disability
compensation, generally payable only to veterans, and death and pension benefits,
payable to survivors.” Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir. 1998).
Stoll’s reliance on §§ 1159, 3.957, and 3.105(d) is also misplaced. The statute
and its implementing regulations preclude severing an otherwise continuing service-
connection status of a surviving veteran. They are inapplicable here to a veteran who
has died. Stoll’s position that a veteran can continue to be considered “service-
connected” even after his death is untenable. Under 38 U.S.C. § 5112(b)(1), a
deceased veteran ceases to receive service-connected payments on the last day of the
month before he dies, and we have previously held that a veteran’s service-connected
disability does not survive his death. Richard v. West, 161 F.3d 719, 720 (Fed. Cir.
1998). If a veteran cannot receive service-connected benefits following his death, it is
inconsistent for a deceased veteran to be able to continue to accrue service connection
04-7007 -9-
to fulfill the ten-year protection period under §§ 1159 or 3.957. Mr. Stoll was not
service-connected for ten years, because the service-connection period of accrual
ceased in 1998 when he died, and thus Stoll’s arguments relating to §§ 1159 or 3.957
are inapplicable.
Stoll makes other arguments to support her position, including a purported
distinction between the words “attributable” and “attributed” as used in the pertinent
statutes. We do not find them to be convincing.
For the reasons explained above, Stoll cannot rely on her husband’s prior service
connection status to save her DIC claim. Instead, her claim for DIC benefits constitutes
a new claim for service connection that is governed by § 1103(a). We accordingly
affirm the Veterans’ Court’s decision that Mr. Stoll’s death was not shown to be service-
connected for purposes of Stoll’s DIC claim. The cause of his death was pneumonia
caused by his service-connected COPD, and neither party disputes that the COPD was
attributable to his in-service tobacco use. Under such circumstances, § 1103(a)
precludes Stoll’s claim.
CONCLUSION
The Veterans’ Court did not err in construing 38 U.S.C. § 1103(a) to preclude Ms.
Stoll’s claim for DIC benefits. Accordingly, the decision of that court is
AFFIRMED.
04-7007 -10-
United States Court of Appeals for the Federal Circuit
04-7007
VIOLA M. STOLL,
Claimant-Appellant,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellee.
NEWMAN, Circuit Judge, dissenting.
The court's opinion categorizes the widow's claim as a "new claim for service
connection" which must be established afresh. However, the veteran's service connection
was already finally established. The widow's entitlement to dependency-and-indemnity
compensation does not require redetermination of the veteran's service-connection after his
death.
There is only one claim of service-connection, the claim of the veteran. Mr. Stoll's
service-connection was "grandfathered" because his entitlement was established before
the statute/rule was changed regarding tobacco-caused disabilities. This entitlement does
04-7007 1
not require -- indeed, it does not permit -- reassessment after his death. The service-
connected disability established during his lifetime determines the widow's entitlement.
It is thus incorrect to hold that the widow must reestablish service-connection after
the veteran dies. The widow's rights to compensation flow from the disability of the
veteran, as established during his life, and on his death his service-connection was beyond
challenge. From my colleagues' ruling that service-connection must now be proven on law
that explicitly did not apply to this veteran, I respectfully dissent.
04-7007 2