Kernea v. Shinseki

Flora is the widow of Donald, a World War II veteran, honorably discharged in 1945 after being diagnosed with diabetes mellitus. At that time the VA found his diabetes to be service-connected and gave him a disability rating of 40%. Beginning in 1950, Donald was hospitalized at various times for complications and declining health as a result of his diabetes and repeatedly, unsuccessfully, requested increases in his disability rating. In 1961, the Director of the Compensation and Pension Service found “clear and unmistakable error” and increased the rating to 60%, effective 1961. Ultimately, Donald’s disability rating was increased to 100%, effective 1965. Donald died in 1969, from complications of diabetes. Flora was granted dependency and indemnity compensation, 38 U.S.C. 1310, and filed a claim under 38 U.S.C. 1311(a)(2), which provides that a surviving spouse may qualify for increased benefits if the veteran received “or was entitled to receive . . . compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death.” The VA denied the claim in 2003. Flora pursued appeals, which were ultimately rejected by the Board of Veterans’ Appeals. The Veterans Court and Federal Circuit affirmed. View "Kernea v. Shinseki" on Justia Law