Citation Nr: 0004997	
Decision Date: 02/25/00    Archive Date: 03/07/00

DOCKET NO.  98-00 495A	)	DATE
	)
	)


THE ISSUE

Whether there was clear and unmistakable error (CUE) in the 
Board of Veterans' Appeals' August 26, 1997 decision.


REPRESENTATION

Appellant represented by:	Kern County Veterans Service 
Department


ATTORNEY FOR THE BOARD

Solomon J. Gully, IV, Associate Counsel


INTRODUCTION

The veteran served on active duty from September 1948 to 
April 1970.  He died on October [redacted], 1996.  The moving 
party is the veteran's widowed spouse.  

This case comes before the Board of Veterans' Appeals (Board) 
on motion by the moving party alleging CUE in an August 26, 
1997 Board decision.


FINDINGS OF FACT

1.  The veteran died on October [redacted], 1996.

2.  On August 26, 1997, before learning of the veteran's 
death, the Board denied the veteran's claim of entitlement to 
service connection for an eye disorder.

3.  The moving party is the veteran's surviving spouse.


CONCLUSION OF LAW

There is no entitlement under the law for review of the 
Board's August 26, 1997 decision on the basis of CUE.  38 
U.S.C.A. §§ 5109, 5112(b), 7111 (West 1991 & Supp. 1999); 
38 C.F.R. §§ 20.1400-20.1411 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a matter of law, veterans' claims do not survive their 
deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. 
Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); 
Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  

In Haines v. Gober, 10 Vet. App. 446 (1997) (per curiam), the 
United States Court of Appeals for Veterans Claims (Court) 
dismissed an appellant/widow's claim of CUE in a Board 
decision, in which, the Board dismissed an appeal due to the 
veteran's death.  The veteran died while his claim was 
pending before the Board.  The Court concluded that the 
veteran's interest in his CUE claim terminated at the time of 
his death and that the appellant was statutorily precluded 
from pursuing her deceased husband's claim as heir to his 
estate.  Haines, 10 Vet. App. at 446-447.  

In affirming the dismissal action on appeal, the United 
States Court of Appeals for the Federal Circuit held that a 
veteran's CUE claim under 38 U.S.C.A. § 5109A asserting error 
in a disability determination under chapter 11 of title 38, 
United States Code, does not survive the veteran's death.  In 
reaching this conclusion, the Federal Circuit noted that the 
language of 38 U.S.C.A. § 5109A makes clear that a CUE claim 
is not a conventional appeal, but rather is a request for 
revision of a decision by the Secretary.  Haines v. West, 
154 F.3d 1298, 1300 (Fed. Cir. 1998).  The Federal Circuit 
held that a claim of CUE is a means for correction of a 
clearly and unmistakably wrong decision, compared with an 
appeal to the Board, which permits review of decisions that, 
while in error, do not meet the CUE tests.  Id.  The Federal 
Circuit also held that the substantive compensation 
provisions found in chapter 11 of title 38 clearly 
distinguish between disability compensation, generally 
available only to veterans, and death and pension benefits, 
payable to survivors.  Id.  
The Federal Circuit concluded that a veteran's CUE claim 
under 38 U.S.C. § 5109A asserting error in a disability 
determination does not survive the veteran's death, and a 
veteran's death limits the recipients, amounts, and processes 
of recovery of disability compensation to those provided in 
section 5121.  Id. at 1300-1301.  

In the present case, the Board denied the veteran's claim of 
entitlement to service connection for an eye disorder on 
August 26, 1997, before being advised that he died on October 
[redacted], 1996.  Consequently, as a matter of law, the moving 
party has no legal entitlement under the law for review of the 
Board's August 26, 1997 decision on the basis of CUE.  38 
U.S.C.A. §§ 5109, 5112(b), 7111 (West Supp. 1999); 38 C.F.R. 
§§ 20.1400-20.1411 (1999). A CUE adjudication with respect to 
the appellant's deceased husband would not involve a case or 
controversy with respect to the appellant, but rather an 
advisory opinion not capable of providing any relief to the 
appellant. In Waterhouse v. Principi, 3 Vet. App. 473, 474-76 
(1992), the Court made clear that it will not adjudicate 
hypothetical claims. Quoting from the Supreme Court's 
decision in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 
241, 57 S. Ct. 461, 464, 81 L. Ed. 617 (1937), as to what 
constitutes a "controversy", the Court stated that it "must 
be a real and substantial controversy admitting of specific 
relief though a decree of a conclusive character, as 
distinguished from an opinion advising what the law would be 
upon a hypothetical state of facts." Waterhouse, 3 Vet. App. 
at 474. 
 
In reaching this determination, the Board expresses no 
opinion as to the merits of this appeal or to any derivative 
claim brought by a survivor of the veteran.  38 C.F.R. 
§ 20.1106 (1999).


ORDER

The appeal is dismissed.



		
	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals