NOTE: This disposition is nonprecedential.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 respondentappellee. 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NOTE: This disposition is nonprecedential.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 
2008-7059 5 

with instructions to remand to the Board on this issue, so that the DIC and accrued 

benefits claims can be considered together. 

No costs.