PREC 9-00    Effect of Statements in Hix and Pardue v. Gober Concerning Evidence to be Considered in Determinations of “Hypothetical” Entitlement for Purposes of 38 U.S.C. § 1311(a)(2)      Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-00,  VAOPGCPREC 9-00, 2000

Does the decision of the United States Court of Appeals for the Federal Circuit in Hix and Pardue v. Gober, Nos. 99-7094, -7102 (Fed. Cir. Sept. 20, 2000), require the Department of Veterans Affairs (VA) to accept evidence submitted after a veteran’s death to establish, under 38 U.S.C. § 1311(a)(2), that the veteran was "entitled to receive" compensation from VA during his or her lifetime for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding the death?

Under 38 U.S.C. §§ 1311(a)(2) and 1318(b), a survivor’s right to certain dependency and indemnity compensation (DIC) benefits exists if the deceased veteran was "entitled to receive" certain benefits for a specified period prior to his or her death. In a series of precedential decisions, the United States Court of Appeals for Veterans Claims (CAVC) concluded that section 1318(b) authorizes payment of DIC when evidence in the veteran’s claims file or in the custody of the Department of Veterans Affairs (VA) prior to the veteran’s death establishes that the veteran was "hypothetically" entitled to the specified benefits. In Hix v. West, 12 Vet. App. 138 (1999), the CAVC concluded that section 1311(a)(2) must be construed in the same manner as section 1318(b). VA appealed the decision in Hix to the United States Court of Appeals for the Federal Circuit, arguing that entitlement to DIC under section 1311(a)(2) could not be predicated on a veteran’s "hypothetical" entitlement, but could exist only if the veteran’s entitlement were established by decisions during the veteran’s lifetime or by correction of clear and unmistakable error in decisions rendered during the veteran’s lifetime. In Hix and Pardue v. Gober, Nos. 99-7094, -7102 (Fed. Cir. Sept. 20, 2000), the Federal Circuit stated: "[w]e affirm the ruling of the [CAVC] that the ‘entitled to receive’ provision of § 1311(a)(2) requires de novo determination of the veteran’s disability, upon the entirety of the record including any new evidence presented by the surviving spouse." To the extent the Federal Circuit’s decision refers to consideration of new evidence presented by the surviving spouse, it appears to conflict with statements in CAVC decisions indicating that "hypothetical" entitlement is to be determined upon the evidence that was in the veteran’s claims file or in VA custody prior to the veteran’s death. Under the circumstances of this case, however, the Federal Circuit’s statement concerning consideration of new evidence presented by the surviving spouse is obiter dictum and is not binding upon VA or the CAVC. The issue before the Federal Circuit in Hix was whether the CAVC erred in concluding that section 1311(a)(2) authorizes increased DIC in cases where the veteran’s entitlement to benefits is merely "hypothetical". The ancillary issue of whether evidence may be submitted after a veteran’s death to establish the veteran’s "hypothetical" entitlement to certain benefits was not raised or argued by the parties before the Federal Circuit and the Court’s isolated statement concerning that issue was not necessary to its decision on the appeal.

For these reasons, the Federal Circuit’s statement in Hix concerning the consideration of new evidence is dicta, and it is not binding on VA. Thus, the Federal Circuit’s decision in Hix does not require VA to accept evidence submitted after a veteran’s death offered to establish, under 38 U.S.C. § 1311(a)(2), that the veteran was "entitled to receive" compensation from VA during his or her lifetime for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death.