DYK, Circuit Judge.
National Organization of Veterans' Advocates, Inc., ("NOVA"), Disabled American Veterans ("DAV"), and Paralyzed Veterans of America ("PVA") (collectively, "petitioners"), challenge the validity of a regulation promulgated by the Department of Veterans Affairs, 38 C.F.R. § 3.22 (2000).
Initially it is useful to briefly review the statutory scheme governing the award of DIC benefits to survivors of deceased veterans.
Under chapter 13 of title 38, United States Code, the Department of Veterans Affairs is authorized to pay DIC benefits to survivors of a deceased veteran whose death is due to a disability incurred during the veteran's military service ("service-connected disability").
38 U.S.C. § 1311(a)(2) (emphasis added). In other words, section 1311 entitles survivors of a veteran (who dies from a service-connected total disability) to receive DIC benefits even if the veteran did not receive compensation for that disability during his or her lifetime.
A different statute is involved here. Section 1318 of title 38 governs the award of DIC benefits when the veteran's death is not service-connected. This statutory prescription is comparatively recent. Before 1978, payment of DIC benefits was limited by section 1310(a) to survivors of service members who died on active duty or veterans who died post-service as a result of service-connected disabilities.
In 1978, however, Congress, by enacting section 1318, provided for the payment of DIC benefits to the survivors of a veteran whose death was not caused by a service-connected disability, but who, at the time of death, "was in receipt of (or but for the receipt of retired or retirement pay was entitled to receive)" compensation for a service-connected disability that was rated 100 percent disabling for 10 years immediately preceding death, or for five years continuously from the date of the veteran's discharge. Veterans' Disability Compensation and Survivors' Benefits Act of 1978, Pub.L. No. 95-479, 92 Stat. 1560, 1564 (1978). That provision was codified in 38
38 C.F.R. § 3.22(a) (1979).
In 1981 the General Counsel of the Department of Veterans Affairs issued an opinion that concluded, in pertinent part, that "38 U.S.C. § 410(b)(1) (1976) does not provide a basis for finding entitlement to survivors' benefits where a veteran, at death, had been in receipt of compensation for total disability but not for the requisite duration solely because of [Department of Veterans Affairs] error in the rating assigned." O.G.C. Prec. Op. 2-81, at 2 (May 21, 1981). In other words, that opinion barred survivors from receiving DIC benefits in cases where the agency's error deprived a totally disabled veteran from receiving his or her statutorily prescribed benefits for the requisite five- or ten-year period.
In response to that General Counsel opinion, Congress in 1982 amended 38 U.S.C. § 410(b)(1). That amended statute (as currently codified at 38 U.S.C. § 1318) states in pertinent part that DIC benefits would be awarded to survivors of a deceased veteran (whose death was not service-connected) where that veteran died:
38 U.S.C. § 1318(b) (Supp. V 1999) (emphasis added). The legislative history accompanying section 1318 made clear that the purpose of the 1982 amendment was "to provide that the requirement that the veteran have been in receipt of compensation for a service-connected disability rated as total for 10 years prior to death (or for 5 years continuously from the date of discharge) is met if the veteran would have been in receipt of such compensation for such period but for a clear and unmistakable error regarding the award of a total-disability rating." Explanatory Statement of Compromise Agreement, 128 Cong. Rec. H7777 (1982), reprinted in 1982 U.S.C.C.A.N. 3012, 3013 (emphasis added).
In sum, sections 1311 and 1318 both prescribe circumstances under which survivors of deceased veterans may receive
The Language and Judicial Interpretations of 38 C.F.R. § 20.1106
As noted above, 38 U.S.C. § 1311 addresses the DIC benefits payable to survivors of a veteran whose death is due to a service-connected disability. Subsection (a)(2) of § 1311 states, in pertinent part, that the DIC benefits may be increased:
38 U.S.C. § 1311(a)(2) (emphasis added). The statute's implementing regulation, 38 C.F.R. § 20.1106, provides in pertinent part that "[e]xcept with respect to benefits under the provisions of 38 U.S.C. § 1318 ..., issues involved in a survivor's claim for [DIC] benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime." 38 C.F.R. § 20.1106.
In Hix v. Gober, 225 F.3d 1377 (Fed.Cir. 2000), the Court of Appeals for Veterans Claims
We affirmed, noting that the requirements of 38 C.F.R. § 20.1106 were "dispositive of the interpretation of 38 U.S.C. § 1311," Hix, 225 F.3d at 1380. We accordingly held that section 1311 required "de novo determination of the veteran's disability, upon the entirety of the record including any new evidence presented by the surviving spouse." Id. at 1380-81. An opposite result is reached by the regulations under section 1318.
The Language and Judicial Interpretations of 38 C.F.R. § 3.22
In 1983, the Department of Veterans Affairs revised 38 C.F.R. § 3.22 in light of the 1982 amendment to section 1318. The revised regulation stated, in pertinent part, that survivors would receive DIC benefits when the veteran "was in receipt of or for any reason (including ... correction of a rating after the veteran's death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation at the time of death" for a totally disabling service-connected disability. 38 C.F.R. § 3.22(a) (1984) (emphasis added).
Following these revisions, the Court of Appeals for Veterans Claims in several cases involving the eligibility of survivors for DIC benefits, broadly interpreted the "entitled to receive" language of section 1318(b) and the corresponding language of 38 C.F.R. § 3.22(a). Before the Court of Appeals for Veterans Claims, the Department
The Court of Appeals for Veterans Claims disagreed, concluding that section 1318 and 38 C.F.R. § 3.22 permitted the award of DIC benefits to survivors in cases where the deceased veteran had never applied for compensation for a service-connected total disability that could have resulted in entitlement to such compensation. As that court explained in Green v. Brown, 10 Vet.App. 111 (1997):
Id. at 118; see also, e.g., Wingo v. West, 11 Vet.App. 307, 311 (1998) ("[S]ection 1318 and its implementing regulation in § 3.22(a) allow the [survivor] to obtain a determination of whether the veteran hypothetically would have been entitled to receive an award of service connection.") (quoting Green, 10 Vet.App. at 119); Carpenter v. West, 11 Vet.App. 140, 145-46 (1998) (reaffirming Green). It is these decisions of the Court of Appeals for Veterans Claims that led the agency to revise the regulation at issue here.
The 2000 Revisions to 38 C.F.R. § 3.22
On January 21, 2000, the Department of Veterans Affairs promulgated a final rule in the Federal Register (that became effective that same day) captioned "DIC Benefits for Survivors of Certain Veterans Rated Totally Disabled at Time of Death." See 65 Fed.Reg. 3,388 (Jan. 21, 2000) ("Final Rule"). This Final Rule is challenged here.
The Final Rule revised 38 C.F.R. § 3.22 in two pertinent respects. First, it struck from subsection (a) of the regulation the language that authorized survivors to receive DIC benefits if the deceased veteran was "for any reason" entitled to receive (at the time of his or her death) compensation for a totally disabling service-connected disability. In other words, the Final Rule revised subsection (a) to provide in pertinent part that the Department of Veterans Affairs would pay DIC benefits to survivors in the same manner as if the veteran's death was service-connected only if: "(1) [t]he veteran's death was not the result of his or her own willful misconduct, and (2)[a]t the time of death, the veteran was receiving, or was entitled to receive, compensation for [a totally disabling] service-connected disability...." 38 C.F.R. § 3.22(a) (emphasis added).
Second, it revised subsection (b) to expressly define "entitled to receive" as effectively limited to a situation where the veteran's failure to receive benefits is "due solely to clear and unmistakable error" by
38 C.F.R. § 3.22(b).
The Department of Veterans Affairs made clear in the explanatory text accompanying the Final Rule that it had revised 38 C.F.R. § 3.22 to respond to the Court of Appeals for Veterans Claims' decisions in Green and its progeny. Pointing to the Court of Appeals for Veterans Claims' decision in Wingo, 11 Vet.App. at 311, for example, the Department of Veterans Affairs stated that "§ 3.22, as interpreted by the [Court of Appeals for Veterans Claims], does not accurately reflect the requirements of the statute [38 U.S.C. § 1318] and [the Department of Veterans Affairs'] intention in issuing that regulation." Final Rule, 65 Fed.Reg. at 3,390. Finally, the Department of Veterans Affairs characterized this Final Rule as solely an "interpretive rule," i.e., a rule that "merely clarifies or explains existing statutes or regulations." Id. The Department of Veterans Affairs accordingly did not publish the proposed Final Rule for notice-and-comment by interested parties.
As noted above, this Final Rule became effective on January 21, 2000. NOVA filed a timely petition for review with this court on March 17, 2000, challenging the validity of 38 C.F.R. § 3.22, as revised. DAV and PVA filed similar timely petitions for review on March 20, 2000, and March 21, 2000, respectively. We sua sponte consolidated these three petitions on March 21, 2000.
We have jurisdiction to directly review the validity of both the rulemaking process and the regulation challenged here pursuant to 38 U.S.C. § 502. "[U]nder 38 U.S.C. § 502, we may review the [Department of Veterans Affairs'] procedural and substantive rules, any amendments to those rules, and the process in which those rules are made or amended." Disabled Am. Veterans v. Gober, 234 F.3d 682, 688 (Fed.Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1605, 149 L.Ed.2d 471 (2001).
We conduct this review, as stated above, in accordance with the standards set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. This review is "highly deferential" to the actions of the agency. Disabled Am. Veterans, 234 F.3d at 691.
Before considering the merits of the statutory construction reflected in the
The petitioners seriously misunderstand the decision in Bankers Trust and, more importantly, the nature of the judicial function. A final decision of an Article III court binds the parties to that particular controversy as a matter of res judicata. Section 34 of the Restatement (Second) of Judgments, for example, makes clear that "[a] party [to an action] is bound by and entitled to the benefits of the rules of res judicata with respect to determinations made while he was a party," subject to certain exceptions not applicable here. Restatement (Second) of Judgments § 34(2) (1982).
But that final judicial decision is not binding on parties in a future case, except in those circumstances where the earlier case would be entitled to collateral estoppel effect. The petitioners here do not assert that the agency in this case is collaterally estopped from re-litigating the issue of statutory construction. Nor could they colorably assert such a claim. Section 28 of the Restatement (Second) of Judgments (1982) makes clear, for example, that "[a]lthough an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment," id., that issue may be re-litigated when it is "one of law and ... the two actions involve claims that are substantially unrelated." Id. at § 28(2). An accompanying comment emphasizes that this rule applies with particular force when the issue to be re-litigated involves, as here, "the formulation or scope" of a statute or applicable legal rule:
Id. at § 28, cmt. b, at 275-76. Thus the only effect of the Court of Appeals for Veterans Claims' decisions in Green and the subsequent cases is as a matter of stare decisis.
But stare decisis is a doctrine that binds courts to follow their own earlier decisions or the decisions of a superior tribunal. As we have previously noted, stare decisis "in essence makes each judgment a statement of the law, or precedent, binding in future cases before the same court or another court owing obedience to its decision." Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1570 (Fed.Cir.1993), cert.
Thus, it was perfectly appropriate for the Department of Veterans Affairs to attempt to re-litigate the Court of Appeals for Veterans Claims' construction of 38 U.S.C. § 1318 in this court. It could do so either by raising the issue in a new case at the Board of Veterans' Appeals or by proceeding through rulemaking. Here it chose the latter course. Neither we nor the Department of Veterans Affairs is bound by the earlier Court of Appeals for Veterans Claims' decisions cited by petitioners.
The petitioners also claim that we should invalidate the regulation because it is a substantive rule (otherwise known as a "legislative rule") that was not promulgated in accordance with the notice and comment rulemaking procedures of the Administrative Procedure Act. In contrast, the Department of Veterans Affairs stated in the explanatory text accompanying that Final Rule that it had "dispensed" with those statutory requirements because it considered the rule to be interpretive rather than substantive. Final Rule, 65 Fed. Reg. at 3,391.
A determination of whether the Final Rule is substantive or interpretive is significant. The APA provides in pertinent part that when an agency proposes to promulgate a substantive rule, it must give notice to interested parties and allow them
5 U.S.C. § 553(b)-(c). Failure to allow notice and comment, where required, is grounds for invalidating the rule. See, e.g., Auer v. Robbins, 519 U.S. 452, 459, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ("A court may certainly be asked by parties ... to disregard an agency regulation ... that appears on the public record to have been issued in violation of procedural prerequisites, such as the `notice and comment' requirements of the APA, 5 U.S.C. § 553"); Chrysler Corp. v. Brown, 441 U.S. 281, 313, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) ("Certainly regulations subject to the APA cannot be afforded the force and effect of law if not promulgated pursuant to the statutory procedural minimum found in that Act.") (internal quotations omitted). Interpretive rules, in contrast, are exempt from these notice and comment requirements. 5 U.S.C. § 553(b)(3)(A); see also Splane v. West, 216 F.3d 1058, 1063 (Fed.Cir.2000).
We have previously explained the distinction between substantive and interpretive rules as follows:
Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed.Cir.1998) (quoting Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C.Cir.1993) (internal citations omitted)). An "interpretive rule," in other words, merely "represents the agency's reading of statutes and rules rather than an attempt to make new law or modify existing law." Splane, 216 F.3d at 1063; see also Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995) (noting that an interpretive rule may be "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers").
Petitioners argue that the January 2001 revisions are substantive because they "modify existing law," id., namely, the decisions of the Court of Appeals for Veterans Claims in Green, Carpenter, and Wingo. We do not agree. Those decisions rested in large part on the Court of Appeals for Veterans Claims' interpretation of the earlier version of 38 C.F.R. § 3.22.
This conclusion finds support in decisions of at least four of our sister courts of appeals, namely, the Second, Seventh and Ninth Circuits and the District of Columbia Circuit.
The Second, Seventh and Ninth Circuits have concluded that an interpretive rule may change or clarify an agency's interpretation of its governing statute. In White v. Shalala, 7 F.3d 296 (2d Cir. 1993), for example, the Second Circuit held that "[i]f the rule is an interpretation of a statute rather than an extra-statutory imposition of rights, duties or obligations, it remains interpretive even if the rule embodies the Secretary's changed interpretation of the statute." Id. at 304. Similarly, in Chief Probation Officers of California v. Shalala, 118 F.3d 1327 (9th Cir.1997), Justice White, sitting by designation, concluded that the rule at issue that terminated federal matching funds for state juvenile justice programs was interpretive not substantive, and rejected the "blanket proposition that that any change in policy constitutes a [substantive] rule." Id. at 1335-36. Finally, in Metropolitan School District of Wayne Township v. Davila, 969 F.2d 485 (7th Cir.1992), cert. denied, 507 U.S. 949, 113 S.Ct. 1360, 122 L.Ed.2d 740 (1993), the Seventh Circuit noted in pertinent part that "an agency's change in its reading of the statute does not necessarily make the rule announcing the change [substantive]." Id. at 492.
To be sure, if the earlier interpretation is contained in a substantive rule, a change may also have to be made in the same manner. In Orengo Caraballo v. Reich, 11 F.3d 186 (D.C.Cir.1993), for example, the District of Columbia Circuit emphasized that a rule that changes or clarifies an agency's interpretation of its governing statute is not necessarily a substantive rule. The court made clear that "[o]nly where a second rule repudiates or is irreconcilable" with a prior [substantive] rule must the second rule "be an amendment of the first," and therefore itself be a substantive rule. Id. at 196 (internal quotations and brackets omitted). The revisions here neither "repudiate" nor are "irreconcilable" with the agency's earlier version of 38 C.F.R. § 3.22, and accordingly are not substantive rules.
In light of the decisions of our sister courts of appeals on this point, we conclude
Turning then to the merits, each side claims that 38 U.S.C. § 1318 is clear; each side claims that it can only be interpreted in accordance with its position. We disagree with both sides. In our view the statute is ambiguous.
As noted above, the statute provides, in pertinent part, that DIC benefits will be awarded to survivors of a deceased veteran where that veteran died:
38 U.S.C. § 1318(b) (Supp. V 1999) (emphasis added).
The phrase "entitled to receive ... compensation," standing alone, provides no guidance as to whether the statute allows a hypothetical claim of total disability.
On the one hand, the legislative history of section 1318 appears to favor resolution of the ambiguity for the government. Thus the Senate report that accompanied the legislation stated in pertinent part that the legislation "would clarify Congressional
Explanatory Statement of Compromise Agreement, 128 Cong. Rec. H7777 (1982), reprinted in 1982 U.S.C.C.A.N. 3012, 3013 (emphasis added). Given the difficulties of adjudicating initial or reopened claims many years after the relevant events, it may be unlikely that Congress intended to adopt the hypothetical claim approach adopted by the Court of Appeals for Veterans Claims in Green, Wingo, and Carpenter.
On the other hand, it is a well-established rule of statutory construction that when a statute is ambiguous, "interpretive doubt is to be resolved in the veteran's favor." Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); see also, e.g., King v. St. Vincent's Hosp., 502 U.S. 215, 220-21 n. 9, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (referring to "the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor"); McKnight v. Gober, 131 F.3d 1483, 1485 (Fed.Cir.1997) ("Certainly, if there is ambiguity in the statute, interpretive doubt is to be resolved in the veteran's favor.") (internal quotations omitted).
Ordinarily at this juncture in the analysis where application of the usual canons of statutory construction push in opposite directions we would resort to the Chevron principle, which mandates that we defer to an agency's reasonable interpretation of an ambiguous statute. Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778. While the parties do not argue the point, the Supreme Court has held that Chevron deference does not normally apply to informal rulemakings. In Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), for example, the Supreme Court noted that agency interpretations of statutes that lack the force of law i.e., that are not the product of formal adjudication or notice-and-comment rulemaking "do not warrant Chevron-style deference." Id. at 587, 120 S.Ct. 1655. This standard was recently clarified in United States v. Mead Corp., ___ U.S. ___, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), where the Supreme Court stated:
Id. at 2171; see also Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (noting that interpretative
It is, of course, true that, while the revised regulation at issue is not entitled to Chevron deference, it is entitled to some deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), given the Department of Veterans Affairs' "specialized experience" here and the "broader investigations and information" available to that agency. Id. at 139, 65 S.Ct. 161. And the degree of deference afforded the revised regulation hinges in turn on its "power to persuade." Id. at 140, 65 S.Ct. 161. But we need not decide whether Skidmore deference would be sufficient to support the government's interpretation, for 38 C.F.R. § 3.22, as revised, must be remanded to the agency for another reason. Without further explanation of § 3.22, it is inconsistent with the agency's interpretation of another virtually identical statute.
As noted above, both section 1311 and its counterpart, section 1318, use the same "entitled to receive" language when discussing a veteran's eligibility for benefits arising from a totally disabling condition and the survivors' corresponding eligibility for DIC benefits upon the veteran's death. In Hix, 225 F.3d at 1380, this court noted that the agency's implementing regulation for section 1311, 38 C.F.R. § 20.1106, provides that survivors' applications for DIC benefits "will be decided without regard to any prior disposition of those issues during the veteran's lifetime." In contrast, the revisions to 38 C.F.R. § 3.22 preclude the survivors from re-litigating the veteran's eligibility for disability benefits except in the case of clear and unmistakable error.
Under these circumstances, the agency is required to explain the rationale for its interpretation of section 1318. Though there are exceptions, see Dewsnup v. Timm, 502 U.S. 410, 415, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), it is a well-established rule of statutory construction that normally "identical words used in different parts of the same act are intended to have the same meaning." Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (quoting Dep't of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332, 342, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994)). That rule applies with equal force where, as here, the words at issue are used in two different sections of a complex statutory scheme and those two sections serve the same purpose, namely, the award of DIC benefits to survivors.
To overcome this presumption that Congress intended the phrase "entitled to
It may be that the agency can provide a reasonable explanation for its decision to interpret the virtually identical language of sections 1311 and 1318 in inconsistent ways. But it has not yet done so. We therefore remand 38 C.F.R. § 3.22 to the Department of Veterans Affairs for further consideration.
We further decide that the regulation will remain in effect during the Department of Veterans Affairs' further consideration of the January, 2001, revisions to 38 C.F.R. § 3.22. As the District of Columbia Circuit has previously noted, "[a]n inadequately supported rule ... need not necessarily be vacated." Allied-Signal, Inc. v. United States Nuclear Regulatory Comm'n, 988 F.2d 146, 150, 151 (D.C.Cir.1993) (remanding rule to agency without vacating "to develop a reasoned" explanation for its action). See also, e.g., Checkosky v. Sec. & Exch. Comm'n, 23 F.3d 452, 462-66, 306 U.S.App.D.C. 144 (D.C.Cir.1994) (separate opinion of Silberman, J.) (stating that agency's failure to provide satisfactory explanation does not necessarily mean that agency has acted contrary to APA; therefore, court has discretion not to vacate agency action pending agency's elaboration of its reasoning).
When "deciding whether to vacate an agency's decision pending further explanation," the District of Columbia Circuit considers "the seriousness of the order's deficiencies ... and the disruptive consequences of an interim change that may itself be changed." A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C.Cir.1995) (internal quotations omitted). The "disruptive consequences" of vacatur in this case lead us to conclude that the better course is to remand without vacating 38 C.F.R. § 3.22. Id. at 1492.
But even though we do not now invalidate the regulation, its validity is at this point open to question. Under these circumstances, we conclude that it would be inappropriate for the agency to further process claims under section 1318 until the validity or invalidity of the regulation is finally established. Accordingly we direct the Department of Veterans Affairs to stay all proceedings involving claims for DIC benefits under section 1318, whose outcome is dependent on the regulation in question, pending the conclusion of an expedited rulemaking in which the Department of Veterans Affairs: (1) will provide a reasonable explanation for its decision to interpret sections 1311 and 1318 in inconsistent
For the foregoing reasons, 38 C.F.R. § 3.22 (2000) is remanded for further consideration.
Even if we were bound by American Mining Congress, we could not agree with petitioners. The rule here merely clarifies 38 C.F.R. § 3.22 and, as the District of Columbia Circuit has noted, "[a] rule does not ... become an amendment merely because it supplies crisper and more detailed lines than the authority being interpreted." Am. Mining Congress, 995 F.2d at 1112.
The government also urges that section 1318 must be read in conjunction with 38 U.S.C. § 5101(a), which requires that "[a] specific claim ... must be filed in order for benefits to be paid or furnished to any individual...." 38 U.S.C. § 5101(a). The government directs our attention to Jones v. West, 136 F.3d 1296 (Fed.Cir.), cert. denied, 525 U.S. 834, 119 S.Ct. 90, 142 L.Ed.2d 71 (1998), wherein we held that section 5101(a) requires that "in order for a surviving spouse to be entitled to accrued benefits [owed the deceased veteran], the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Id. at 1299. Relying on Jones, the government argues that survivors are accordingly ineligible for DIC benefits unless the veteran filed a "specific claim," 38 U.S.C. § 5101(a), for compensation for a totally disabling service-connected injury during his lifetime. We are not convinced. Section 5101(a) does not condition survivors' claims for DIC benefits on the veteran's prior filing of a claim, and Jones does not teach to the contrary.
We do not agree. It is one thing to say that survivors may not pursue CUE claims to obtain a deceased veteran's accrued benefits. It is another to say that survivors lack standing to file CUE claims for new benefits, namely, the DIC benefits explicitly afforded to survivors under 38 U.S.C. § 1318. The government apparently concedes that 38 C.F.R. § 3.22(b)(3) trumps the Board of Veterans' Appeals regulations that would otherwise preclude survivors from filing CUE claims for DIC benefits under 38 U.S.C. § 1318.