                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                        2008-7059

                                     SANDRA K. HUPP,

                                                           Claimant-Appellant,

                                           v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                           Respondent-Appellee.


      Sandra W. Wischow, Goodman, Allen & Filetti, of Richmond, Virginia, argued for
claimant-appellant.

        Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief was Jeanne E. Davidson, Director. Of counsel on the
brief were David J. Barrans, Deputy Assistant General Counsel, and Martin J. Sendek,
Staff Attorney, Office of the General Counsel, United States Department of Veterans
Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                         2008-7059

                                    SANDRA K. HUPP,

                                                                   Claimant-Appellant,

                                              v.

                                   ERIC K. SHINSEKI,
                               Secretary of Veterans Affairs,

                                                                   Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims
in 03-1668, Chief Judge William P. Greene, Jr.


                             ___________________________

                             DECIDED: May 19, 2009
                             ___________________________



Before LOURIE, DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

      Sandra K. Hupp appeals a decision of the Court of Appeals for Veterans Claims

(“Veterans Court”) affirming-in-part and reversing-in-part a decision by the Board of

Veterans’ Appeals (“Board”). The Veterans Court reversed and remanded Mrs. Hupp’s

Dependency and Indemnity Compensation (“DIC”) claim, finding that the Board had

failed to provide an adequate statement of the reasons and bases for its decision to

discount favorable medical evidence concerning the issue of service connection. Hupp

v. Nicholson, 21 Vet. App. 342, 356 (2007). However, the Veterans Court affirmed the
denial of her accrued benefits claim. Id. at 356–57. Because there is no legal basis to

distinguish the two claims on the issue of service connection, we reverse and remand.

                                    BACKGROUND

      The facts pertinent to this appeal are not in dispute. The veteran, Billy Hupp,

served on active duty in the U.S. Army from November 1965 to October 1966 and from

June 1969 to November 1971. In January 1993, Mr. Hupp was diagnosed with chronic

myelogenous leukemia (“CML”). Mr. Hupp filed an application for VA disability benefits

for CML, claiming that the CML was service connected, resulting from exposure to

dioxin in Agent Orange while he was on duty. In August 1993, the regional office (“RO”)

awarded a non-service-connected pension, but denied service connection for CML. In

August 1994, the RO issued a second decision denying service connection for CML.

Mr. Hupp filed a Notice of Disagreement.

      In May 1995, Mr. Hupp submitted an opinion from a VA physician which stated

that the physician believed that “because of the quantity, consistency[,] and duration of

exposure to [A]gent [O]range . . . there is relations [sic] between the exposure and [Mr.

Hupp’s] diagnosis of [CML]”. Hupp, 21 Vet. App. at 346 (alterations in original). The

RO sent a Supplemental Statement of the Case to Mr. Hupp in July 1995 continuing to

reject this claim. On appeal in September 1996, the Board determined that service

connection was not warranted for CML. The Board concluded that “the absence of

objective medical evidence demonstrating a causal connection between [Mr. Hupp’s

CML] and his exposure to chemicals far outweighs speculations made by [Mr. Hupp]

and the VA physician.” Id. (second alteration in original). Mr. Hupp appealed, and the

Veterans Court granted a joint motion for remand to the Board in order to allow the




2008-7059                               2
Board to provide reasons and bases for its decision. The Board then remanded to the

RO for it to collect further evidence and conduct a hearing. Mr. Hupp died in April 1999,

due to his CML, before the RO decided the matter. In June 1999, Mrs. Hupp, the

veteran’s spouse, filed claims for accrued benefits and DIC benefits. In November

1999, the RO denied these claims. Mrs. Hupp appealed.

      In March 2003, the Board remanded to the RO for further development and

readjudication in light of the Veterans Claims Assistance Act of 2000. In May 2003, the

RO denied the claims. Mrs. Hupp appealed to the Board.

      In July 2003, the Board upheld the RO’s denial of Mrs. Hupp’s claims. Mrs. Hupp

appealed to the Veterans Court. On July 18, 2007, the Veterans Court vacated and

remanded the DIC claim to the Board on the issue of service connection because the

Board had failed to provide an adequate statement of the reasons and bases for its

decision to discount the 1995 favorable medical nexus opinion, stating:

      Although the Board is free to choose one medical opinion over another,
      the Board must provide an adequate statement of reasons or bases for
      that decision. Mrs. Hupp argues persuasively that, if the Board is going to
      find Dr. McCall’s July 2000 opinion more probative, then the Board is
      required to provide an adequate statement of reasons or bases to
      discount the May 1995 favorable medical nexus opinion. That statement
      must clearly explain why “a fair preponderance of the evidence is against
      the claim for service connection,” when no evidence has been cited
      specifically disproving the claimed nexus. Without such discussion, Mrs.
      Hupp cannot understand the precise basis for the Board’s decision nor
      can we effectively review the Board’s decision. Accordingly, the Board’s
      decision denying service connection for the cause of Mr. Hupp’s death will
      be vacated and the matter remanded for readjudication.

Hupp, 21 Vet. App. At 356 (citations omitted).       Nevertheless, the Veterans Court

affirmed the denial of the accrued benefits claim without discussing the service




2008-7059                               3
connection issue. 1 Mrs. Hupp timely appealed the denial of accrued benefits. The

decision as to the accrued benefits claim is final for the purposes of our review. See

Elkins v. Gober, 229 F.3d 1369, 1373–74 (Fed. Cir. 2000).

                                      DISCUSSION

       We have authority to review a decision by the Veterans Court regarding “the

validity of any statute or regulation or any interpretation thereof . . . and to interpret

constitutional and statutory provisions, to the extent presented and necessary to a

decision.” 38 U.S.C. § 7292(c). We review the interpretation of legal determinations

without deference. Rodriguez v. Peake, 511 F.3d 1147, 1152 (Fed. Cir. 2008).

       Mrs. Hupp argues on appeal that the Veterans Court made a legal error when it

failed to remand the accrued benefits claim to the Board, as it did with the DIC claim, for

failure to provide an adequate statement of the reasons and bases for its discounting

the favorable 1995 medical nexus opinion.

       The parties agree that they are unable to determine any factual or legal basis

that would distinguish the two claims. At oral argument, both parties also agreed that

some type of remand is appropriate, though they disagreed as to whether we should

vacate or reverse. We agree that the failure of the Board to provide reasons and bases

for discounting the 1995 medical opinion affects the accrued benefits claim in exactly

the same way it affects the DIC claim. We reverse and remand to the Veterans Court




       1
              As to this accrued benefits claim, the Board did address the contention
that the VA’s notice to Mrs. Hupp was defective. The Board found this contention to be
inadequately briefed and declined to address the issue. Mrs. Hupp does not pursue the
notice issue on appeal to this court.



2008-7059                                4
with instructions to remand to the Board on this issue, so that the DIC and accrued

benefits claims can be considered together.

      No costs.




2008-7059                              5
