DESIGNATED FOR PUBLICATION ON AUGUST 17, 1992

**UNITED STATES COURT OF VETERANS APPEALS**

No. 90-1571

[Charlotte H. Conary, Appellant,]{.smallcaps}

and

No. 91-473

[Betty D. Coxey, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Edward J. Derwinski,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

Before MANKIN, HOLDAWAY, and STEINBERG, *Associate Judges*.

**O R D E R**

These cases were consolidated by order of the Court dated April 14,
1992. Oral argument was heard on June 26, 1992. At oral argument,
counsel for the parties each expressed the view that a remand for
readjudication would be appropriate, although neither party had so
moved. On June 18, 1992, the Secretary of Veterans Affairs (Secretary)
submitted a motion for leave to file a response to appellants\' reply
brief (filed on June 15, 1992) and lodged a response. On June 22, 1992,
appellants filed an opposition to the Secretary\'s motion. On July 20
and 27, 1992, respectively, the Secretary and the appellants filed
supplemental memoranda pursuant to an order of the Court at oral
argument on June 26, 1992.

On consideration of the foregoing and the Court\'s May 22, 1991, order
of remand in *Arnett v. Derwinski*, U.S. Vet. App. No. 90-241 (May 22,
1991), it is

ORDERED that the decisions of the Board of Veterans\' Appeals (of
September 25, 1990, in *Conary* and of November 27, 1990, in *Coxey*)
are vacated and remanded to the Board for full readjudication, in light
thereof, with the right of appellants to submit further argument and
evidence. *See Fletcher v. Derwinski*, 1 Vet.App. 394, 397 (1991). It is
further

ORDERED that the Secretary\'s motion for leave to file a response is
granted and the response will be filed as of the date of this order.

DATED: August 14, 1992 PER CURIAM.

STEINBERG, *Associate Judge*, concurring, issued the following
statement: I write to provide some background and context for the
Court\'s action in remanding the case.

**I. Background**

Both Mr. Conary and Mr. Coxey, veterans who served during World War II,
received needs-based non-service-connected pension from the Veterans\'
Administration (now Department of Veterans Affairs) (VA) for several
years (approximately eight years and twelve years, respectively) before
their deaths. During the four years prior to his death, in 1990, Mr.
Conary accrued unreimbursed medical expenses between \$2,273 and
\$4,415, annually, and he submitted annually an Improved Pension
Eligibility Verification Report (EVR) in order to receive an upward
adjustment in his pension. During the three years prior to his death, in
1989, Mr. Coxey accrued unreimbursed medical expenses between \$3,474
and \$4,053, annually, and he, too, submitted EVRs for each of those
years in order to receive an upward adjustment in his pension. The
records on appeal do not contain EVRs for the years preceding those
discussed above.

Entitled \"Pension for Non-Service-Connected Disability or Death or For
Service\", chapter 15 of title 38 of the United States Code sets forth
the factors governing VA\'s determination of the needs-based pensions
that the deceased veterans in these cases had received. Under 38 U.S.C.
§ 1521 (formerly § 521), veterans who have served on active duty during
a period of war, as defined in the statute, and who are disabled in the
various ways described in the provision are entitled to receive a VA
pension, to be adjusted according to the amount of the veteran\'s annual
income. Under 38 U.S.C. § 1503(a)(8) (formerly § 503), annual income for
purposes of pension calculation under chapter 15 includes payments of
any kind and from any source except, inter alia, the amount equivalent
to payments for unreimbursed medical expenses to the extent that they
exceed five percent of the maximum annual rate of pension. *See* 38
C.F.R. § 3.272(g) (1991). The submission of the EVR, thus, is designed
to ensure that annual unreimbursed medical expenses will be deducted
from annual income in the calculation of veterans\' pensions.

If a VA pension recipient submits an EVR each year within an annual
reporting period established by VA, certain unreimbursed medical
expenses may be excluded from the annual income reported by the
recipient and used by VA to calculate or adjust the amount of pension
received. Consequently, a veteran\'s submission of an EVR may result in
a retroactive upward adjustment of pension for the prior year. *See* 38
U.S.C. §§ 1503(a)(8), 1521; 38 C.F.R. § 3.272(g)(1) (1991). Mr.
Conary\'s annual EVR reporting period spanned March 1 through February
28 of each year. He died on February 24, 1990, four days prior to the
end of his annual EVR reporting period. Mr. Coxey\'s annual reporting
period spanned September 1 through August 31 of each year. He died on
June 8, 1989, less than three months before his annual EVR reporting
period expired.

Shortly after their veteran husbands\' deaths, each appellant filed an
application for \"accrued benefits\" (explained below) to receive upward
adjustments in the veterans\' pensions, for the year preceding death,
based on the unreimbursed medical expenses for that year as reflected on
the EVR each had submitted before the respective deadlines for annual
filing of those forms but after the veterans\' deaths. VA denied each
surviving spouse\'s application. The Board of Veterans\' Appeals (BVA or
Board) concluded in each case that, although a \"regrettable\" result,
the appeal could not be granted because the practice of reporting
unreimbursed medical expenses at the end of the annual reporting period
was not sufficient to trigger entitlement to accrued benefits after the
veteran\'s death; the right to accrued benefits could be secured only by
\"existing ratings or decisions\" at the date of the veteran\'s death,
or by \"evidence in the file at \[the\] date of death\", and, because
the EVRs had not been submitted by the date of death in either case, the
Board concluded that neither alternative requirement was met. 38 U.S.C.
§ 5121(a); *Jimmie L. Coxey*, BVA 90-\_\_\_, slip op. at 4-5 (Nov. 27,
1990); *Everett M. Conary*, BVA 90-\_\_\_, slip op. at 4 (Sept. 25,
1990).

**II. Analysis**

**A.**

If a veteran, who receives VA pension and who typically submits an EVR
at the close of each annual reporting period, expecting that the pension
amount will be adjusted to compensate for unreimbursed medical expenses,
dies before submitting the EVR covering the annual reporting period
immediately preceding death, the surviving spouse, under the
interpretation of the applicable statutory provision by the Secretary of
Veterans Affairs (Secretary), may not be able to recover as accrued
benefits the full amount of unreimbursed medical expenses for the year
preceding death. The applicable statutory provision regarding accrued
benefits, 38 U.S.C. § 5121(a) (formerly § 3021), provides, in pertinent
part, that accrued benefits shall be paid upon a veteran\'s death only
if that individual was either (1) \"entitled \[to the periodic monetary
benefits\] at death under existing ratings or decisions\", or (2) there
existed \"evidence in the file at \[the\] date of death . . . \[of
periodic monetary benefits\] due and unpaid for a period not to exceed
one year\". The Secretary has argued that the plain meaning of the
language in section 5121(a) precludes the appellants here from
recovering the full amount of accrued benefits because the veterans, by
the dates of their deaths, had not submitted their EVRs, and, thus, in
each case no existing rating or decision or evidence was in the file at
the date of death from which an award of accrued benefits could be
determined.[^1]

The appellants have argued, and the BVA\'s decisions in *Arnett* (the
December 7, 1989, initial decision and the December 18, 1991,
supplemental decision (appended to appellants\' reply brief in this
case) on a remand ordered by the Court) demonstrate that the BVA has
previously interpreted section 1521(a) in a way that would have afforded
at least partial relief to the appellants here. *See Warren G. Arnett*,
BVA 91-\_\_\_ (Dec. 18, 1991); *Warren G. Arnett*, BVA 89-\_\_\_ (Dec.
7, 1989). In *Arnett*, the BVA interpreted the statute\'s requirement
that there be \"evidence in the file at \[the\] date of death\" to be
satisfied where a surviving spouse was able to establish that the EVR
submitted after death reflected unreimbursed medical expenses that were
reasonably estimable because previously submitted EVRs showed them to be
recurring and, therefore, predictable. These types of expenses,
concluded the Board in *Arnett*, constitute prima facie annual-income
evidence on file at the date of death. Consequently, the claimant there
was awarded accrued benefits in connection with private medical
insurance and Medicare premium payments made during the previous year.

**B.**

The task of the Court in interpreting the statutory provisions at issue
\-- subsections 5121(a) and (c) \-- is \"to give effect to the will of
Congress, and where that will has been expressed in reasonably plain
terms, \'that language must ordinarily be regarded as conclusive\'\".
*Griffin v. Oceanic Contractors, Inc.*, 458 U.S. 564, 571 (1982)
(quoting *Consumer Product Safety Commission v. GTE Sylvania, Inc.*, 447
U.S. 102 (1980)). \"In rare cases \[, however,\] the literal application
of a statute will produce a result demonstrably at odds with the
intentions of its drafters, and those intentions must be controlling.\"
*Ibid*. This \"\'absurd result\' exception to the plain meaning rule is,
however, narrow and limited to situations \'where it is quite impossible
that Congress could have intended the result      . . . and where the
alleged absurdity is so clear as to be obvious to most anyone\'\".
*Gardner v. Derwinski*, 1 Vet.App. 584, 587 (1991) (quoting *Public
Citizen v. U.S. Department of Justice*, 491 U.S. 440, 471 (1989)
(Kennedy, J., concurring)).

\"\[I\]n ascertaining the plain meaning of the statute, the court must
look to the particular statutory language at issue, as well as the
language and design of the statute as a whole.\" *K Mart Corp. v.
Cartier, Inc.*, 486 U.S. 281, 291 (1988). Here, with respect to
subsection 5121(a), the appellants could receive accrued benefits only
if the veterans were \"entitled at death\" to periodic monetary benefits
under \"existing ratings or decisions\" or there existed \"evidence in
the file at \[the\] date of death . . . \[regarding periodic monetary
benefits\] due and unpaid\". The terms \"ratings\", \"decisions\", and
\"evidence\" are not explicitly defined in chapter 51 of the statute.
However, the intended meanings of \"ratings\" and \"decisions\" may be
gleaned from reading the statute as a whole and harmonizing its parts
into a coherent mandate. \"It \[is\] fundamental that a section of a
statute should not be read in isolation from the context of the whole
act, and that in fulfilling our responsibility in interpreting
legislation, \'we must not be guided by a single sentence or member of a
sentence, but \[should\] look to the provisions of the whole law, and to
its object and policy.\'\" *Richards v. United States*, 369 U.S. 1, 11
(1962) (citations omitted).

It is reasonably clear from the statute as a whole that, with regard to
all of the benefits sought by the appellants, there were no ratings or
decisions in the veterans\' files at their deaths upon which VA could
determine with precision the benefits owed. The term \"ratings\",
although not explicitly defined in chapter 51, is used elsewhere in the
statute to refer to the \"average impairments of earning capacity\"
resulting from diseases and injuries encountered as a result of or
incident to military service. 38 U.S.C. § 1155 (formerly § 355); *see*
38 C.F.R. § 4.1 (1991) (percentage ratings represent, as far as can
practicably be determined, average impairment in earning capacity
resulting from diseases and injuries resulting from or incident to
military service). Thus, a \"rating\" could not have entitled appellants
here to accrued benefits for the unreimbursed medical expenses since the
degree of the veterans\' disabilities was not at issue.

In addition, the term \"decisions\", although not explicitly defined in
chapter 51, is elsewhere discussed in the statute as the resolution of
\"all questions of law and fact . . . that affect\[\] the provision of
benefits\". 38 U.S.C. § 511(a) (replaced § 211). Thus, a \"decision\" as
to the adjustment in pension sought by the appellants was not in the
veterans\' files upon their deaths, since questions of fact regarding
the amount owed by VA for unreimbursed medical expenses remained, and
their resolution depended on the information supplied on the EVRs that
were submitted after the veterans\' deaths.

The requirement that there be \"evidence in the file at \[the\] date of
death\" is also not explicitly defined in title 38; nor is its meaning
implied elsewhere in the statute. \"Where, as here, the statute contains
no definition of the words \'in controversy\' . . . the . . . popular or
received import of words furnishes the general rule for interpretation
of public laws.\" *Mercantile Bank & Trust Co. v. United States*, 441
F.2d 364, 366 (8th Cir. 1971) (citations omitted). Since \"evidence\" is
used throughout the statute without mention of any specialized
definition, it would be reasonable to ascribe to it a common definition,
such as that set forth in Black\'s Law Dictionary:

> Any species of proof, or probative matter, legally presented at the
> trial of an issue, by the act of the parties and through the medium of
> witnesses, records, documents, exhibits, concrete objects, etc., for
> the purpose of inducing belief in the minds of the court or jury as to
> their contention. . . . Testimony, writings, or material objects
> offered in proof of an alleged fact or proposition. . . . Testimony,
> writings, material objects, or other things presented to the senses
> that are offered to prove the existence or nonexistence of a fact. . .
> . All the means by which any alleged matter of fact, the truth of
> which is submitted to investigation, is established or disproved.

[Black\'s Law Dictionary]{.smallcaps} 555 (6th ed. 1990); *see
Richards*, 369 U.S. at 9 (in interpreting meaning of word \"place\" in
Federal Tort Claims Act, Court first \"assum\[ed\] that the legislative
purpose is expressed by the ordinary meaning of the words used\"). Under
such an approach, any information in a veteran\'s file upon his or her
death, which persuades VA that it has in its possession facts sufficient
to determine the amount of accrued benefits owing, could reasonably be
considered \"evidence in the file at \[the\] date of death\".

The Board\'s interpretation of this provision in *Arnett*, a decision
not, of course, before the Court in these appeals,[^2] was not facially
inconsistent, on the facts presented there, with the ordinary meaning of
\"evidence in the file at \[the\] date of death\", since there the Board
looked at the proof before it \-- the EVRs submitted prior to death \--
and was able to deduce certain facts from that proof.[^3] Even so,
section 5121(a), whether interpreted to preclude an award of accrued
benefits where an EVR has been submitted after the veteran\'s death, or
to allow accrued benefits only for those expenses that were reasonably
estimable and recurring, as deduced from EVRs in a veteran\'s file at
the date of death, may very well not provide complete relief for
claimants in the position of these appellants (for example, if VA were
to conclude, upon readjudication, as the BVA did in *Arnett*, that
certain expenses listed were not reasonably estimable and recurring).

Nevertheless, it seems dubious that, in light of the absence of a
clearly expressed contrary legislative intent, the interpretation urged
by the appellants could fairly be ascribed to the words chosen by
Congress in section 5121(a). *See Public Citizen*, 491 U.S. at 454;
*Griffin*, 458 U.S. at 571. In addition, the interpretation taken by the
BVA in *Arnett* would be likely to be sustained, in the words of the
Supreme Court, \"given the importance we have consistently attached to
interpreting statutes to avoid deciding difficult constitutional
questions where the text fairly admits of a less problematic
construction.\" *Public Citizen*, 491 U.S. at 455.

**C.**

The appellants have also argued that subsection (c) of section 5121
should be interpreted to provide them relief. The design of section 5121
as a whole and its legislative history negate the validity of such an
interpretation. That provision requires, inter alia, that applications
for accrued benefits be filed within one year after the date of the
veteran\'s death. 38 U.S.C. § 5121(c). The appellants have argued that
that requirement is the only one they must have fulfilled in order to
receive accrued benefits. Their argument, however, ignores the structure
of section 5121. Subsections (a), (b), and (c) do not present
requirements in the alternative; they are independent requirements, each
of which must be fulfilled, to the extent applicable to a particular
claimant, before accrued benefits may be paid.

The legislative history of section 5121 supports this interpretation of
its structure. In Executive Order 6230 of July 28, 1933, the current
subsection (c) was then encompassed in paragraph (1)(f), and paragraph
(1) was equivalent to the current subsection (a) of section 5121.
Paragraph (1) stated that, upon meeting the \"existing ratings or
decisions\" or \"evidence in the file\" requirements, a claimant had to
meet a list of additional requirements, which were listed following a
colon. Among the additional requirements was subparagraph (f) which
stated: \"Payment of benefits authorized by this paragraph will not be
made unless claim therefor be received in the Veterans\' Administration
within one year from the date of death\". The placement of subparagraph
(f) within paragraph (1) and the language employed in subparagraph (f)
demonstrate that the Executive intended that the fulfillment of the
application filing requirement alone would not be sufficient to trigger
entitlement to accrued benefits.

That Executive Order supplied the text for Vet. Reg. No. 2(a) which was
codified in 1943 during the 78th Congress. *See* 57 Stat. 577 (July 13,
1943). Although today subsection (c) of section 5121 is no longer part
of subsection (a), there is no legislative history to suggest that the
intention of Congress has changed or that fulfillment of the timely
filing requirement alone would trigger entitlement to accrued benefits
in the absence of satisfaction of the requirements in subsection (a).
The structure of the statute and the legislative history do not,
therefore, support the appellants\' interpretation.

**D.**

The Court has made the only equitable and fair disposition of these
appeals. However, several aspects of the cases bear further illumination
and clarification. The first is the inequity resulting from the
Secretary\'s interpretation of section 5121(a). Under the interpretation
of the accrued benefits statute put forward by the Secretary in these
cases, veteran pension recipients and their survivors are placed in an
impossible \"Catch-22\" position if 38 U.S.C. § 1521(a) does, indeed,
require that, in order for the surviving spouses in such cases to be
entitled to an accrued pension benefit unpaid to their husbands at the
time of their deaths and consisting of the full amount of unreimbursed
medical expenses for the preceding year, the husbands would have had to
have filed (or had filed for them) prior to death specific evidence of
medical bills or expenses (such as insurance premiums) paid prior to
death or an \"estimate based on a clear and reasonable expectation that
unusual medical expenditure will be realized\". 38 C.F.R. § 2.272(g).
Veterans in such circumstances would have to anticipate that their
deaths would occur at a precise point in time in order to comply fully
with the statute as to all of their unreimbursed medical expenses.

The Secretary\'s regulations, instructions, and forms, nowhere
specifically advise a veteran pension recipient of any such onerous
requirement. If so advised, a veteran could choose to file evidence of
payment for unreimbursed medical expenses as they are incurred and, for
each year, an advance estimate for anticipated \"unusual medical
expenditure\". Of course, to expect a veteran or a spouse to have the
foresight to take such a step in order to create entitlement to an
accrued benefit for the surviving spouse for the full amount of
unreimbursed medical expenses, should the veteran die before the filing
of the annual EVR, is to expect a great deal of a family in the throes
of a devastating illness or injury. In addition, the claimant who knows
of the impending death of his or her veteran spouse is still forced to
choose between spending time with the veteran during his or her last
days or taking care to pay all bills and file numerous EVRs to ensure
their submission prior to the veteran\'s death.

Nevertheless, veterans submitting EVRs should be specifically advised by
VA about the requirements of the law as interpreted by the Secretary, in
the same way as the current EVR Form 21-0516 provides information to the
pension recipient, as follows, regarding the annual due date for
submission of the EVR: \"[If You Do Not Return The Completed Form To The
VA By Nov. 1, 1987 Your Benefits Will Be Discontinued]{.smallcaps}.\"
*Conary*, R. at 20, 22, 25; *but see Coxey*, R. at 21. At least with
such notice, veteran pension recipients may try to ensure that, despite
the cruel \"Catch 22\" created by the statute, their surviving spouses
receive (through their accrued benefits) some upward pension adjustment
for unreimbursed medical expenses. The Secretary did not provide such
notice here and apparently does not do so as a general matter. The
seemingly anomalous and inequitable nature of the results that may arise
under the statute does not negate the Secretary\'s obligation to provide
notice of the onerous requirements of the accrued benefits provisions of
section 5121.

Thus, the second aspect of these cases worth illuminating is the failure
of the Secretary to carry out the individualized duty here to provide
\"aid and assistance\" to the two veteran husbands of the appellants
\"in the preparation and presentation of \[their\] claims\" during their
time as recipients of pension from VA. 38 U.S.C. § 7722(d) (replaced §
241(3)). Just as in *Smith (Edward F.) v. Derwinski*, 2 Vet.App. \_\_,
\_\_, No. 90-64, slip op. at 6-7 (U.S. Vet. App. May 21, 1992), where
the Secretary had a statutory obligation, under section 7722(d), during
the one-year retroactive pension application period under 38 U.S.C. §
1510(b)(3)(B) (formerly § 510), to advise a pension applicant of the
one-year period in which to make specific application for retroactive
pension, so here the Secretary was statutorily obliged to give the
veterans \"the information \[they\] needed\" in order to make timely and
effective application for an upward adjustment of pension based on
unreimbursed medical expenses under 38 U.S.C. § 1503(a)(8) (*see* 38
U.S.C. § 5121(a); 38 C.F.R. § 3.272(g) (1991); *Smith*, 2 Vet.App. at
\_\_, slip op. at 6) in the event that the veteran were to expire prior
to the date on which the annual EVR was due.

However, this case\'s similarity to the *Smith* case stops with the
imposition of the obligation imposed by 38 U.S.C. § 7722(d). In *Smith*,
the Court held that the appropriate remedy for the Secretary\'s
violation of his duty toward the appellant was equitable tolling
(suspension) of the running of the one-year limitation period for the
pension applicant to make specific application for retroactive pension.
*Smith*, 2 Vet.App. at \_\_, slip op. at 10. Here, the statutory
requirement in 38 U.S.C. § 5121(a), with respect to \"evidence in the
file at \[the\] date of death\", is not a \"statutory time period for
filing a claim against the U.S. Government\", such as is the case with
section 5121(c), which requires that application for accrued benefits
\"must be filed within one year after the date of death\"; rather, the
subsection (a) temporal requirement here is part and parcel of \"the
underlying statutory eligibility requirements for the benefits sought\",
payment of which has not been provided for by law unless that basic
requirement is met. *Smith*, 2 Vet.App. at \_\_, slip op. at 8. In this
latter situation, as recognized in *Smith*, \"no equities, no matter how
compelling, can create a right to payment out of the United States
Treasury which has not been provided for by Congress.\" *Smith*, *supra*
(citing *Office of Personnel Management v. Richmond*, \_\_ U.S. \_\_,
110 S. Ct. 2465 (1990); *cf. Irwin v. Veterans Admin.*, \_\_ U.S. \_\_,
111 S. Ct. 453 (1990).

Third, the appellants have essentially argued that if the Court were to
find that, in order to receive as accrued benefits the full amount of
allowable unreimbursed medical expenses, the appellants or the veterans
should have submitted prior to the veterans\' deaths the EVRs listing
those expenses, such an application of section 5121(a) has deprived them
of the Constitutional guarantees of the due process and equal protection
clauses. In light of the Court\'s remand disposition, it has not reached
the Constitutional questions. Moreover, if the statutory requirement
that there be evidence in the file at the date of death may fairly be
interpreted so that \"evidence\" is given a broad construction, the
Constitutional issues pressed by the appellants may well be similarly
avoided. Where statutory construction, which preserves the validity of
the statutory provision in question, is \"fairly possible\", the Supreme
Court has avoided overturning such statutes on constitutional grounds,
\"even if a serious doubt of constitutionality is raised\". *Public
Citizen*, 491 U.S. 465-66 (quoting *Crowell v. Benson*, 285 U.S. 22, 62
(1932)).

Consequently, in light of the Court\'s inability to provide the
appellants a remedy by striking the relevant statutory provision or by
imposing an equitable remedy for the Secretary\'s violation of his
section 7722(d) duty to their deceased husbands, and thus ensure that
the appellants and others similarly situated receive the full amount of
their unreimbursed medical expenses for the year prior to the veterans\'
deaths, Congress may wish to consider whether it intended to create the
seemingly anomalous, inequitable, and harsh result which the
Secretary\'s construction of section 5121(a) may require; or, whether,
as the appellants have contended here, they should each be afforded a
fixed period (here section 5121(c)\'s one-year, post-death provision
would seem instructive) from their husbands\' deaths to file the medical
expense information necessary to secure their rights to accrued benefits
through an adjustment of those benefits to reflect the unreimbursed
medical expenses incurred and paid prior to the veterans\' deaths.
Correction of the potential for unintended, almost inhumane results in
such cases, under the Secretary\'s construction of the applicable
statutory provisions in these appeals, is the province, as the Court
said in another context recently, not of the Court but of \"possible
future legislative action\". *Jones v. Derwinski*, 2 Vet.App. 231, 233
(1992) (en banc).

Copies to:

David L. Nash, Esq.

Legal Services of South Piedmont

9 Union Street North, #302

Concord, NC 28055

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, N.W.

Washington, D.C. 20420

[^1]: The Secretary\'s representatives have argued in their brief and at
    oral argument (although they did retreat, somewhat, when pressed)
    that the appellants are not entitled to receive as accrued benefits
    any portion of their unreimbursed medical expenses. They have also
    argued that this result is consistent with long-standing agency
    interpretation of the applicable statutory provision. However, the
    appellants were the first party to call to the Court\'s attention
    that in *William G. Arnett*, BVA 91-\_\_\_ (Dec. 18, 1991), and
    *William G. Arnett*, BVA 89-\_\_\_ (Dec. 7, 1989), the BVA had
    awarded partial relief to an appellant with a claim nearly identical
    to the appellants\' claims, and that the Secretary had proposed a
    remand on that basis for only one of the appellants here (Mrs.
    Coxey, before the cases were consolidated). Since the *Arnett* case
    contradicts the argument that the Department has consistently
    interpreted 38 U.S.C. § 5121(a), the appellant argues persuasively
    in his July 27, 1992, supplemental memorandum that the Secretary\'s
    representatives had an obligation to call the BVA\'s decisions in
    *Arnett* to the Court\'s attention. *See Jones (Joseph L.) v.
    Derwinski*, 1 Vet.App. 596, 605-07 (1991) (\"\[T\]he Court must be
    able to rely upon the representations of those who practice before
    it and there is an inherent professional obligation to correct
    misstatements.\" (1 Vet.App. at 606); the Court held that judicial
    process had been abused and sanctions were warranted where
    representatives of the Secretary failed to correct a statement which
    they learned was false).

[^2]: Prior decisions of the BVA are not considered precedential by this
    Court. *See* *Hillyard v. Derwinski*, 1 Vet.App. 349, 351 (1991); 38
    C.F.R. § 19.197 (1991) (reformulated in 57 Fed. Reg. 4,127 (1992)
    (to be codified at 38 C.F.R. § 20.1303)). Normally, the Court would
    not, therefore, take cognizance of a prior BVA decision. Here,
    however, the Secretary had offered appellant Coxey a remand to the
    Board for readjudication in light of the Board\'s prior decision in
    *Arnett*, and all parties agreed that the facts of *Arnett* were
    basically indistinguishable from the facts in the instant appeals.

[^3]: *See Warren G. Arnett*, BVA 89-\_\_\_, at 5 (\"in the case of a
    running award of improved disability pension, prima facie evidence
    of the payment of such expenses may be confirmed after death by the
    submission of additional evidence\"; \"\[w\]hen prima facie evidence
    of annual income was submitted before death, additional confirmatory
    or explanatory income evidence submitted after death may be
    accepted\"); *Warren G. Arnett*, BVA 91-\_\_\_, at 4 (\"\[p\]rima
    facie proof\" of expenses for private health insurance and Medicare
    premiums for income reporting period prior to veteran\'s death was
    \"of record at the date of death\" and confirmatory information
    regarding such recurring expenses was accepted after death in
    support of claim for accrued benefits).