United States Court of Appeals for the Federal Circuit 

04-7007 

VIOLA M. STOLL, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

Respondent-Appellee. 

Daniel D. Wedemeyer, Wedemeyer & Prangley, of Santa Ana, California, argued 

for claimant-appellant. On the brief was Robert V. Chisholm, Chisholm Chisholm & 

Kilpatrick, of Providence, Rhode Island. 

Carolyn J. Craig, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, argued for respondent-appellee. With 

her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, 

Director, and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief were 

Richard J. Hipolit, Acting Assistant General Counsel and Martie S. Adelman, Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

Appealed from: United States Court of Appeals for Veterans Claims 

Retired Judge John J. Farley III 
United States Court of Appeals for the Federal Circuit 

04-7007 

VIOLA M. STOLL, 

 Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

_______________________ 

DECIDED: March 29, 2005 

_______________________ 

Before NEWMAN, LOURIE, and LINN, Circuit Judges. 

Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit 

Judge NEWMAN. 

LOURIE, Circuit Judge. 

Viola M. Stoll (“Stoll”) appeals from the decision of the United States Court of 

Appeals for Veterans Claims (the “Veterans’ Court”) affirming the decision of the Board 

of Veterans’ Appeals denying her claim for dependency and indemnity compensation 

(“DIC”) benefits on the ground that her former husband’s death was not serviceconnected. Stoll v. Principi, No. 02-0788 (Vet. App. Aug. 21, 2003). We affirm. 

BACKGROUND 

Stoll was the wife of a deceased army veteran. The veteran, John W. Stoll, 

served on active duty in the United States Army from 1942 to 1946. In March 1994, he 

filed a claim for service connection for emphysema that he attributed to smoking while in 
the Army. On March 11, 1998, a Department of Veterans Affairs regional office (“RO”) 

awarded him a thirty-percent disability rating for chronic obstructive pulmonary disease 

(“COPD”) secondary to his service-connected nicotine dependence. Service connection 

for Mr. Stoll’s disability was given an effective date of March 9, 1994. 

On June 10, 1999, Mr. Stoll died from pneumonia caused by COPD. On June 

22, 1999, Ms. Stoll submitted a claim for DIC benefits, urging that her husband’s death 

resulted from a service-connected disability. In July 1999, the RO denied Stoll’s DIC 

claim based on its interpretation of 38 U.S.C. § 1103(a)1

 that prohibited service 

connection for a veteran’s death attributable to the use of tobacco products during the 

veteran’s military service. 

Stoll appealed the RO’s decision and, in July 2001, the Board of Veterans’ 

Appeals granted service connection for the veteran’s death on the ground that he had 

previously established service connection for the COPD before his death. On 

reconsideration, however, the Board denied the service connection and agreed with the 

RO that § 1103(a) and its implementing regulation, 38 C.F.R. § 3.300(a), prohibited 

service connection for death attributable to a veteran’s in-service tobacco use. 

Stoll appealed the Board’s decision to the Veterans’ Court, arguing that 38 C.F.R. 

§ 3.300(a) was not applicable to her claim, that the Board misinterpreted 38 U.S.C. 

 1

 38 U.S.C. § 1103(a) provides as follows: 

Notwithstanding any other provision of law, a veteran’s 

disability or death shall not be considered to have resulted 

from personal injury suffered or disease contracted in the 

line of duty in the active military, naval, or air service for 

purposes of this title on the basis that it resulted from injury 

or disease attributable to the use of tobacco products by the 

veteran during the veteran’s service. 

04-7007 -2-
§ 1103(a), and that § 1103(a) cannot override the specific instruction to award survivors 

of service-connected veterans DIC benefits pursuant to 38 U.S.C. § 1310(a).2

The Veterans’ Court was not persuaded by Stoll’s arguments, and affirmed the 

Board’s decision. The court recognized that it had previously held that § 1103(a) 

“precludes service connection for purposes of a DIC claim filed after June 9, 1998, that 

is based upon a veteran’s service-connected disability or death which is capable of 

being attributable to the veteran’s in-service use of tobacco products.” Stoll, slip op. at 

3 (citing Kane v. Principi, 17 Vet. App. 97, 102 (2003)). Applying its precedent, the 

court determined that Stoll’s DIC claim was filed after June 9, 1998, and that her 

husband’s death was attributable to his in-service use of tobacco products. Moreover, 

according to the court, a “claim for DIC is generally treated as a new claim, regardless 

of the status of adjudications concerning service-connected-disability claims brought by 

the veteran before his death.” Id., slip op. at 4. Thus, the court concluded that Stoll 

could not benefit from her husband’s prior service-connected status. 

Based on its ruling in Kane, the Veterans’ Court also rejected Stoll’s argument 

that § 1310(a) requires an award of DIC benefits. Id., slip op. at 5. In Kane, the court 

concluded that § 1310(a) did not override the mandate of § 1103(a) prohibiting service 

connection for death or disability attributable to a veteran’s in-service tobacco use. Id.

 2

 38 U.S.C. § 1310(a) provides as follows: 

When any veteran dies after December 31, 1956, from a 

service-connected or compensable disability, the Secretary 

shall pay dependency and indemnity compensation to such 

veteran’s surviving spouse, children, and parents. The 

standards and criteria for determining whether or not a 

disability is service-connected shall be those applicable 

under chapter 11 of this title. 

04-7007 -3-
(citing Kane, 17 Vet. App. at 102). On the contrary, the Kane court determined that 

§ 1310(a) specifically provided that service connection for purposes of DIC must be 

based on chapter 11 of Title 38, and § 1103(a) contains the nullifying clause 

“[n]otwithstanding any other provision of law.” Id.

Stoll timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. 

§ 7292. 

DISCUSSION 

We review a statutory interpretation by the Veterans’ Court de novo. Andrews v. 

Principi, 351 F.3d 1134, 1136 (Fed. Cir. 2003). We have exclusive jurisdiction to 

“review and decide any challenge to the validity of any statute or regulation or any 

interpretation thereof brought under [section 7292], and to interpret constitutional and 

statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 

7292(c) (2000). We may not review findings of fact or application of law to the facts, 

except to the extent that an appeal presents a constitutional issue. Id. § 7292(d)(2); 

Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999). 

On appeal, Stoll contends that the Veterans’ Court misinterpreted 38 U.S.C. 

§ 1103(a) in denying her claim for DIC benefits. According to Stoll, § 1103 only 

precludes DIC benefits for fatal tobacco-related disabilities that were not serviceconnected as of the date that that statute was enacted, June 9, 1998. Stoll argues that 

§ 1103(a) does not apply to veterans like her husband who established service 

connection for disabilities prior to June 9, 1998, or DIC claims of survivors of such 

veterans who have previously established service connection, even if the veteran’s 

service-connected disability was attributable to tobacco use. 

04-7007 -4-
To support her position, Stoll analyzes the language of § 1103(a). Specifically, 

she relies upon the absence of the term “service-connected” in the statute. By not using 

the term “service-connected,” but instead reciting the predicate finding for service 

connection—personal injury suffered or disease contracted in the line of duty—Stoll 

asserts that the statute only addresses prospective claims for service connection and 

excludes claims from veterans who have already established service connection for 

their disabilities. Otherwise, according to Stoll, Congress could have avoided this 

ambiguity by simply using the term “service-connected” in the statute. Moreover, Stoll 

relies on the legislative history to support her interpretation of § 1103(a). She cites a 

congressional conference report stating that veterans currently receiving serviceconnected benefits would not be affected by the enactment of § 1103(a). From this 

statement, Stoll asserts that § 1103(a) does not affect DIC claims of survivors of such 

service-connected veterans. 

Stoll also argues that she is entitled to DIC benefits under 38 U.S.C § 1310(a), 

which she interprets as mandating payment to the survivors of veterans who die from 

service-connected disabilities, including disabilities that are attributable to the veteran’s 

use of tobacco products during his service. Stoll asserts that the apparent prohibition of 

granting such tobacco-related claims under § 1103(a) is inapplicable. In Stoll’s view, 

§ 1310(a) is a more “narrow” statute that takes precedence over the later-enacted, more 

“general” prohibition under § 1103(a). 

Finally, Stoll argues that the Veterans’ Court’s interpretation of § 1103(a) is 

inconsistent with 38 U.S.C. § 11593

 and 38 C.F.R. § 3.9574. According to her 

 3

 38 U.S.C. § 1159 provides as follows: 

04-7007 -5-
interpretation of that statute and regulation, as of March 2004, Mr. Stoll was serviceconnected for ten years. Therefore, she asserts, the veteran’s service connection is 

irrevocable, and she is eligible for DIC benefits under § 1310(a), notwithstanding the 

Veterans’ Court’s interpretation of § 1103(a). Stoll further contends that because the 

veteran’s service connection was not severed in compliance with 38 C.F.R. § 3.105(d), 

her husband continued to accrue service-connection years for purposes of fulfilling the 

ten-year protection period under §§ 1159 and 3.957 even after his death in 1998. 

In supporting the denial of Stoll’s DIC claim under § 1103(a), the Secretary of 

Veterans Affairs (the “Secretary”) cites the language of 38 U.S.C. § 101(16)5

, which 

 

Service connection for any disability or death granted or 

continued under title 38 U.S.C., which has been in effect for 

10 or more years will not be severed except upon a showing 

that the original grant was based on fraud or it is clearly 

shown from military records that the person concerned did 

not have the requisite service or character of discharge. 

4

 38 C.F.R. § 3.957 provides as follows: 

Service connection for any disability or death granted or 

continued under title 38, United States Code, which has 

been in effect for 10 or more years will not be severed 

except upon a showing that the original grant was based on 

fraud or it is clearly shown from military records that the 

person concerned did not have the requisite service or 

character of discharge. The 10-year period will be computed 

from the effective date of the Department of Veterans Affairs 

finding of service connection to the effective date of the 

rating decision severing service connection, after compliance 

with § 3.105(d). The protection afforded in this section 

extends to claims for [DIC] or death compensation. 

5

 38 U.S.C. § 101(16) provides as follows: 

The term “service-connected” means, with respect to 

disability or death, that such disability was incurred or 

04-7007 -6-
defines the term “service-connected” for purposes of Title 38 of the United States Code. 

The Secretary argues that given the substantial similarity in the language of §§ 101(16) 

and 1103(a), the latter statute prohibits DIC claims by survivors of service-connected 

veterans who have died from injury or disease attributable to tobacco use. The 

Secretary also questions the probative value of Stoll’s cited portions of the legislative 

history. According to the Secretary, the legislative history of § 1103(a) only discussed 

preserving veterans’, not survivors’, rights, and the legislative history did not address 

the statute’s applicability to DIC claims. 

The Secretary also challenges Stoll’s assertion that her claim for DIC benefits 

under § 1310(a) is not prohibited by § 1103(a). The Secretary contends that § 1310(a), 

by its own explicit terms, is limited by § 1103(a). The Secretary also disputes Stoll’s 

charge that § 1103(a) is the more “general” statute and § 1310(a) is the more “narrow” 

statute. According to the Secretary, the opposite is true, and thus § 1103(a) must take 

precedence over § 1310(a). 

Finally, the Secretary responds to the argument concerning § 1159 by noting that 

the veteran did not enjoy service connection for any 10-year period. Instead, the 

Secretary argues that the accrual period for Mr. Stoll’s service connection ceased in 

1998 when he died. According to the Secretary, because the veteran’s claim for service 

connection cannot survive his death, service connection could not be in effect for 

purposes of accrual after his death either. 

 

aggravated, or that the death resulted from a disability 

incurred or aggravated, in line of duty in the active military, 

naval, or air service. 

04-7007 -7-
For the reasons that follow, we conclude that the Veterans’ Court properly 

affirmed the denial of Stoll’s DIC claim. Under § 1310(a), a surviving spouse is entitled 

to receive DIC benefits if the veteran dies from a service-connected disability. In 

determining whether a veteran’s death resulted from a service-connected disability, 

§ 1310(a) explicitly refers to chapter 11 of Title 38 of the United States Code, which 

includes § 1103(a), thus incorporating its service connection preclusion. Moreover, we 

cannot ignore the nullifying clause contained in § 1103(a): “Notwithstanding any other 

provision of law, . . . .” Thus, § 1103(a) clearly controls over § 1310(a). Finally, Stoll’s 

assertion that § 1103(a) is a “general” statute, and therefore should not be given 

precedence over § 1310(a), the purportedly more narrowly-tailored statute, is incorrect. 

The issue here is not which of the two statutes is broader, but how they relate to each 

other, and, under the current facts, § 1103(a) controls. Accordingly, we agree with the 

Secretary and the Veterans’ Court that § 1103(a) applies to DIC claims of surviving 

spouses of veterans, even if the veterans have previously established service 

connection for their disabilities. 

We agree, however, with Stoll that § 1103(a) does not apply to veterans 

themselves who have established service connection for their disabilities prior to the 

enactment date of § 1103(a), June 9, 1998, even if the disability was attributable to 

tobacco use during the veterans’ military service. But that is not our case. The 

appellant here is the survivor, not the veteran. The intent of § 1103(a) is to address 

new claims of service connection, not the claims of living veterans who have already 

had adjudicated the issue of service connection. Moreover, statements in the legislative 

04-7007 -8-
history indicating that service-connected veterans will not have their benefits abridged 

apply to living veterans, but they do not address new claims by survivors. 

Although we agree with Stoll that § 1103(a) does not apply to living veterans who 

have previously established service connection, it is clear that survivors of such 

veterans do not inherit the veteran’s prior service-connection status for purposes of DIC 

claims. The veteran’s entitlement and a survivor’s entitlement are two different claims. 

As the Veterans’ Court recognized, the RO treats the survivor’s DIC claim as a new 

claim for service connection, “regardless of the status of adjudications concerning 

service-connected-disability claims brought by the veteran before his death.” Stoll, slip 

op. at 4 (citations omitted). Moreover, this court has previously explained that chapter 

11 of Title 38 of the United States Code “draws a distinction between disability 

compensation, generally payable only to veterans, and death and pension benefits, 

payable to survivors.” Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir. 1998). 

Stoll’s reliance on §§ 1159, 3.957, and 3.105(d) is also misplaced. The statute 

and its implementing regulations preclude severing an otherwise continuing serviceconnection status of a surviving veteran. They are inapplicable here to a veteran who 

has died. Stoll’s position that a veteran can continue to be considered “serviceconnected” even after his death is untenable. Under 38 U.S.C. § 5112(b)(1), a 

deceased veteran ceases to receive service-connected payments on the last day of the 

month before he dies, and we have previously held that a veteran’s service-connected 

disability does not survive his death. Richard v. West, 161 F.3d 719, 720 (Fed. Cir. 

1998). If a veteran cannot receive service-connected benefits following his death, it is 

inconsistent for a deceased veteran to be able to continue to accrue service connection 

04-7007 -9-
to fulfill the ten-year protection period under §§ 1159 or 3.957. Mr. Stoll was not 

service-connected for ten years, because the service-connection period of accrual 

ceased in 1998 when he died, and thus Stoll’s arguments relating to §§ 1159 or 3.957 

are inapplicable. 

Stoll makes other arguments to support her position, including a purported 

distinction between the words “attributable” and “attributed” as used in the pertinent 

statutes. We do not find them to be convincing. 

For the reasons explained above, Stoll cannot rely on her husband’s prior service 

connection status to save her DIC claim. Instead, her claim for DIC benefits constitutes 

a new claim for service connection that is governed by § 1103(a). We accordingly 

affirm the Veterans’ Court’s decision that Mr. Stoll’s death was not shown to be serviceconnected for purposes of Stoll’s DIC claim. The cause of his death was pneumonia 

caused by his service-connected COPD, and neither party disputes that the COPD was 

attributable to his in-service tobacco use. Under such circumstances, § 1103(a) 

precludes Stoll’s claim. 

CONCLUSION 

The Veterans’ Court did not err in construing 38 U.S.C. § 1103(a) to preclude Ms. 

Stoll’s claim for DIC benefits. Accordingly, the decision of that court is 

AFFIRMED. 

04-7007 -10-
04-7007 1 

United States Court of Appeals for the Federal Circuit

 04-7007 

VIOLA M. STOLL, 

Claimant-Appellant, 

 v. 

R. JAMES NICHOLSON, 

Secretary of Veterans Affairs, 

Respondent-Appellee. 

NEWMAN, Circuit Judge, dissenting. 

The court's opinion categorizes the widow's claim as a "new claim for service 

connection" which must be established afresh. However, the veteran's service connection 

was already finally established. The widow's entitlement to dependency-and-indemnity 

compensation does not require redetermination of the veteran's service-connection after his 

death. 

There is only one claim of service-connection, the claim of the veteran. Mr. Stoll's 

service-connection was "grandfathered" because his entitlement was established before 

the statute/rule was changed regarding tobacco-caused disabilities. This entitlement does 
04-7007 2 

not require -- indeed, it does not permit -- reassessment after his death. The serviceconnected disability established during his lifetime determines the widow's entitlement. 

It is thus incorrect to hold that the widow must reestablish service-connection after 

the veteran dies. The widow's rights to compensation flow from the disability of the 

veteran, as established during his life, and on his death his service-connection was beyond 

challenge. From my colleagues' ruling that service-connection must now be proven on law 

that explicitly did not apply to this veteran, I respectfully dissent.