*1 the Secretary’s allegation that Mr. Sper-
ry’s attorney first performed had his work rule,
in violation anof ethical it was incum- upon
bent Attorney Twyford to exercise
heightened diligence in representation her See Model Rules Sperry. Mr. (2002) (es-
Prof’l Conduct R. 1.1 and 1.3
tablishing rules ethical behavior for
attorneys regarding competence and dili-
gence).
Despite the Secretary’s arguments,
Court does not find unreasonable Attorney
Twyford’s 8.3 hours to review an 844-page
record or 2.4 her hours to review a 20-
page Board decision. Court does find
it to bill unreasonable 1.6 hours to prepare
a client and representation letter agree-
ment. The will therefore reduce the
EAJA award one hour. Mr. Sperry is
awarded 23.8 hours for Attorney Twyford’s
work, $4,207.13. for a total
III. CONCLUSION
On consideration of foregoing,
May 2009, EAJA application is
GRANTED IN PART in the amount of
$12,761.87.
Charles L. BREEDLOVE, Appellant, Breedlove,
Bre Movant,
v. SHINSEKI, Secretary
Eric K. Affairs, Appellee.
Veterans
No. 08-3059.
United Court Appeals States
for Veterans Claims.
Aug. 2010. *2 (Board) deci- Appeals
Board Veterans’ for entitlement his claim sion denied § 1151 under 38 U.S.C. compensation a door malfunc- injuries resulting from 18, 2009, May hospital. at a On tion appeal, this but during pendency begun, appellant briefing had are not this case The merits of died. we The issue currently panel. before the 5121A, § re- is whether 38 U.S.C. address 2008, ap- to this cently applies enacted a basis for allow- or otherwise forms peal spouse of the veteran’s ing the substitution January appeal. On carry on this argument. heard oral below, we discussed For the reasons directly is not hold that 38 U.S.C. 5121A The enactment to this Court. applicable none Congress of 38 U.S.C. 5121A underpinnings of this theless alters the on substitution and jurisprudence Court’s “zone of no substitu potential creates a claim tion” for Ac appeal. on seeking ants no rationale cordingly, we conclude that creating opportuni a limited now exists for on appeal here based ty for substitution of a veteran. We timing death that, the enactment of hold based on now a dis section 5121 the death of ability claim survives veteran, purpose provid for the veteran, pur to a but ing VA benefits furthering processing poses of claim eligible accrued-benefits claim of an that based on ant. We conclude enactment change in circumstances —the allow substitution on of section 5121 A—to KASOLD, Judge, Chief Before here, require that the longer we no LANCE, MOORMAN, Judges. “submitted,” occurs when be which case filed, filing brief is the time reply ORDER file a right or the reply passed, brief has PER CURIAM: v. Mans waived. Pekular reply brief is (2007). For the field, appel- the Court is the Pending before follow, grant will the Court September reasons lant’s the motion for substitution and 18, 2010, substitute May entitled.” Secre Brenda Breedlove as the appellant this tary’s Amended Response at 1.2 Accord case. ingly, Brenda Mrs. qualifies Breedlove as a *3 person eligible to receive accrued benefits I. BACKGROUND 5121(a) under section because she is the 14, 2009, August On appellant’s spouse and has filed a claim for counsel, on Breedlove, behalf Brenda accrued benefits within year one the asserted surviving spouse of the veter veteran’s death. an-appellant, filed a motion for substitution party, contending that such action is II. PARTIES’ CONTENTIONS appropriate under statutory provisions The appellant’s counsel contends that § of 38 U.S.C. 5121A. See 38 U.S.C. the statutory provisions of section 5121A 5121A(a)(1) (2008) (added § by Pub.L. No. apply to this because Mr. Breedlove 110-389, II, 212(a), § title subtit. died while “an appeal of a decision” with (Oct. 2008)). 10, Stat. 4151 The veteran respect to his claim for section 1151 bene- 18, May on died after the October fits was “pending” and Brenda Breedlove 2008, effective legislation. date this new satisfies requirements all set forth in the 30, 2010, April On in an effort to determine statute for in place of her Brenda whether Breedlove meets the sta (1) deceased husband: appellant The died requirements 5121(a), § tus of 38 U.S.C. May 18, 2009, after the enactment of the Court issued an order directing the (2) 5121A; section Breedlove, Brenda as Secretary to response file a informing the the surviving spouse of the Court deceased veter- as to a decision of the VA Philadel an, is eligible to receive phia Regional accrued Office and Insurance benefits Center (ROIC) 5121(a)(2); (3) under section pertaining to the and the in- status of Mrs. stant motion for Brenda Breedlove an eligible as substitution was filed accrued- “not later year” benefits claimant.1 In than one response, the Sec Mr. Breedlove’s retary informed the Court that death. At oral argument, VA has counsel ex- determined that pressed that, Mrs. Brenda Breedlove the view light the con- recognized has been appellant’s gressional as the wid intent in enacting 5121A, any putative ow “for benefits to she which it would satisfactory not be for this Court 5121(a) 38, U.S.Code, 1. Section of title “Payment entitled of certain accrued benefits upon the beneficiary” death pro- and 5121(a). § 5121(c) 38 U.S.C. pro- Section vides: "Applications vides that for accrued benefits (a) Except provided as in sections and year must be within filed one after the date of 3330 of periodic monetary title 5121(c). death.” 38 U.S.C. (other than insurance and in- servicemen’s demnity) under laws administered 2. Secretary The response attached to his Secretary to which an individual was enti- 7, 2010, letter May from the VA ROIC dated tled at existing death ratings under or deci- which noted its decision on Mrs. Brenda sions or those based on evidence in the file Breedlove's claim for May death benefits. (hereinafter at date of death ... referred to 2010, Secretary Response, Amended Attach- benefits”) as "accrued unpaid, and due and granted ment. ROIC The month one of death shall, upon the death of such individual be (for 2009), pension benefits June denied ac- paid as follows: crued benefits because the veteran was not benefits, entitled to her denied veteran, Upon the death of a to the dependency indemnity compensation. living person listed first below: Id. (A) The spouse. veteran's 5121A). Dur- history for 38 U.S.C. in Peku tive its decision to follow to continue (2007), appeal, in the instant ing argument oral Mansfield, lar v. lan- plain that the Secretary argued result delay that would because of statute, by its essentially demonstrated guage Mrs. Breedlove requiring from provi- its within title 38 and placement claim for benefits VA. to restart authority to the Secre- delegate Pekular, a motion to sions that denied this Court applies that the statute tary, surviving spouse of vet indicates substitute and not to the Court. Agency veteran appellant as the eran should contends of the time expiration died *4 is, for substitution because deny the motion he died before reply his brief —that file in limited only Id. caselaw allows substitution case was submitted decision.” “his this case does meet circumstances and not at 505. Specifically, the Sec- those circumstances. Secretary, opposition in his the Although fits that the instant case retary argues Breedlove, motion for substitution Peku- within the circumstances of squarely recently enacted sub analyze the not did appeal was not the instant lar because A, statute, the section 5121 Secre stitution of Mr. for decision” at the time “submitted in his October tary analyze did the statute death. Breedlove’s 2009, motion for 27, opposition to a substi 08-2631, which Uphoff, No. filed tution III. ANALYSIS prior with to consolidated Breedlove was is question before The Uphoff appeal. The dismissal interpretation a proper whether is lim argues that section 5121A Secretary § statutory 38 U.S.C. 5121 provision, VA and pending matters still before ited to allowed when requires substitution be that appeals pending to before applicable not is pending is a claimant dies while his Vet.App. No. 08- Uphoff, U.S. the Court. or at or either at the Court VA whether (Oct. at 2631, Secretary’s Opposition statutory applies only to VA. provision 2009). 27, The asserts interprets a statute novo. The Court de 5121A(a)(1) regarding of section language 7261(a)(1); Majeed v. Ni 38 See U.S.C. it is unclear as to whether (2006); cholson, 525, 530-31 Vet.App. 19 pending to refers 1331, Principi, v. 339 see also Lane before this appeals pending or also of a (“[I]nterpretation 1339 however, Secretary, maintains Court. question is a regulation statute 5121(a)(1) in the reading that law....”). in relation of the whole statute and context statutes, that apparent it to other becomes Statute, 38 5121A A. The 2008 U.S.C. to the courts. apply does not provision filing of a re- 5121A allows Section addition, that Secretary contends if a claimant dies quest for substitution that the con- legislative history shows “appeal her of a decision” with while his or the “dis- improve intent was to gressional pending. a claim for a benefit is respect to system” processing ability claims provides: Section 5121A clearly are history concepts discussed (1) (a) If a claimant dies pending to a claim before VA applicable Substitution. — benefit under law while a claim province of the Court. within Secretary, 24, by the or an 12-13; Secretary’s see November administered Id. Authorities, respect such 2009, a decision Supplemental Notice of claim, living person who legisla- pending, (Appendix) (containing Appendix
11
would be
552,
receive
ben-
accrued
S.Ct.
(1994);
to make a claim under this section shall
request for substitution to
filed
under
be determined in accordance with sec-
(a)(1)
certain circumstances. Subsection
tion 5121 of this title.
provides:
added).
§
38 U.S.C.
5121A (emphasis
If a claimant dies while a claim any
When this statute was enacted in October
benefit under a law
administered
the
2008, a
regulation
directed the Board
Secretary,
or an
a decision
to dismiss an appeal pending before the
with respect
claim,
to such a
pending,
is
Board when the appellant died. Specifi-
a living person who would be eligible to
cally, §
38,
20.1302 of title
Code Federal
receive accrued benefits due to the
Regulations, provided: “An appeal pend-
5121(a)
claimant under section
of this
ing before the Board of Veterans’ Appeals
may,
title
not later than
year
one
appellant
when the
dies will be dismissed.”
the
claimant,
date
the death of such
(2008).
§
38 C.F.R.
20.1302
file a request
to be substituted as the
Statutory
B.
Interpretation
claimant
the purposes
processing
the
to completion.
“‘Statutory interpretation begins with
5121A(a)(1)
added).
§
38 U.S.C.
(emphasis
language
statute,
the
plain
the
We note that the Board is an administra
meaning of which we derive from text
its
”
tive body
that decides
from denials
and its
Nicholson,
structure.’ Myore v.
of claims for veterans benefits. The stat
1207,
489 F.3d
1211
(quot
ute is silent on the issue of whether “an
ing
MSPB,
McEntree v.
1320,
404 F.3d
appeal of a decision” refers to an appeal
(Fed.Cir.2005));
1328
see Gardner v. Der
that is pending at the
winski,
only
Board
or also to
584,
(1991) (“Deter
1 Vet.App.
586
an
pending
an appellate
mining a
plain
statute’s
meaning requires
court,
Court,
such as this
the U.S. Court of
examining
specific
the
language at issue
Appeals
(Federal
the Federal
Circuit
and the overall structure of the statute.”
Circuit), and the
Supreme
U.S.
Court.
(citing
Bowen,
Bethesda Hosp. Ass’n v.
399,
U.S.
403-05,
However,
S.Ct.
statutory
same
subsection
(1988))),
L.Ed.2d 460
aff'd,
claim to
Secretary”). The
Agency
at the
and the
appellant
events
persons and
cates
appel
chapter
in an
72 is
level,
litigation
to
to “claimants”
parties
reference
7261(a)(4),
means
provides
The term “claimant”
which
court.
found in section
late
for,
submitting
applying
Court,
necessary to
“any individual
the extent
that this
to
the laws
for,
under
any benefit
“in
a claim
shall
presented,
decision and when
its
Secretary.”
administered
fact ad-
finding
of material
the case of
chose to use
Congress
§
U.S.C. 5100.
reaching
made in
to the claimant
verse
chapter
throughout
term
Department
in a case before the
decision
claims and
with
specifically
that deals
under laws admin-
respect
to benefits
example,
obligations
Secretary’s
unlawful
Secretary, hold
istered
—for
assist claim
notify
to
Secretary’s duty
if the
finding
such
aside or reverse
and set
5103, 5103A,
(38
§§
ants
U.S.C.
clearly erroneous.” 38 U.S.C.
finding is
of the doubt
5104),
give
the benefit
7261(a)(4).
to “claimant”
§
The reference
5107),
(38
reopen
§
U.S.C.
the claimant
proceedings
again is associated with
here
(38
5108),
to secure
a claim
U.S.C.
a decision
Agency; specifically,
(38 U.S.C.
opinion
medical
independent
finding of
that contains a
Agency
5109).
addresses effec
Chapter
51 also
adverse to a claimant.
fact that is
(38
§§
U.S.C.
5110-
of awards
tive dates
in sec-
the term “claimants”
As it used
(38
5113)
of benefits
payment
and the
to the Secre-
pertain
title 38 that
tions of
5120-5126).
§§
The use
U.S.C.
*6
to use the
similarly chose
tary, Congress
pro
consistent with the
“claimant” is
term
in, in addition to
claims”
“processing
term
51,
pertain
which
chapter
in
visions
claim”),
(“processing the
section 5121A
Secretary’s obligations.
Secretary
7732A,
per-
another section
section
contrast,
to use the
Congress chose
In
Agency. This sec-
specifically
tains
“claimant,” consis-
“appellant,”
term
77,
chapter
entitled
tion is contained within
72,
is en-
which
tently throughout
Administration,” and
Benefits
“Veterans
Appeals
of
for Veterans
titled “U.S. Court
in
2008 as
to title 38 October
was added
matters.
to Court
pertains
Claims” and
section
the same bill that contained
part of
7263(b)
See,
(“Represen-
§
e.g., 38 U.S.C.
for exami-
provides
7732A
5121A. Section
in accordance
shall be
appellants
tation of
appropriate
of
nations and certifications
by the
prescribed
of practice
with the rules
managers of the Veterans
employees and
title.”); 38
7264 of this
Court under section
respon-
are
“who
Benefits Administration
7264(b)
(providing
§
for service
U.S.C.
compensa-
claims for
processing
sible for
by
address furnished
documents “to the
under the laws
pension
tion and
(de-
7266(b)
§
U.S.C.
appellant”);
38
Secretary.”
administered
shall file a
scribing
appellant
how “[a]n
added).
(emphasis
§
U.S.C. 7732A
(“Af-
§ 7268
appeal”);
38 U.S.C.
notice
in the
used
to the terms
addition
proceed-
in a
of the Court
ter the decision
5121A, the
of section
relevant subsection
final,
may, upon
the Court
ing becomes
structure of
to the overall
looks
Secretary,
or the
appellant
motion of the
determining
in
guidance
section 5121A
enti-
party
permit the withdrawal
the statute. See
meaning of
books,
plain
docu-
originals of
tled thereto of
Secretary
at 273. The
Sharp,
”);
ments,
38 U.S.C.
and records....
struc-
argues that the overall
persuasively
by the Federal
(discussing
§ 7292
review
of section
ture,
and context
placement,
providing for certifications
Circuit and
5121A
show
section 5121A
647,
applies
(1989) (not
S.Ct.
14 contrary to intention pressed legislative Act of (Veterans’ Improvement Benefits ” (quoting Madi statutory language.’ by House and the reached (compromise 2008 States, amended, Galleries, 870 v. 3023, 154 CONG. Ltd. United Senate), as son S. 2008)). (Fed.Cir.1989))); 24, 627, Appendix (Sept. F.2d H9387-01 REC. H.R. 79, (hearing on H.R. 3047 and at of “an meaning plain holdWe on Disabili the Subcommittee 4084 before decision,” the overall within of Affairs of the and Memorial ty Assistance 5121A, to an refers of section structure Affairs, on Veterans’ House Committee only. See at pending that is VA 110-60) (statement Rep. of Cong. 110th note Gardner, at We 586-87. Comm, Hall, Chairman, Veter House on the recent reliance appellant’s the that Affairs) (Nov. 2007) 8, (introducing ans’ in Phil Federal Circuit from the decision that later include of the bill would version Shinseki, 1358, 1363 n. lips v. 4084, referring H.R. section (Fed.Cir.2009), Al persuasive. not “disability processing system”); claims stated, in a the Federal Circuit though 35, (discussing prior Appendix see footnote, of section provisions bill). versions [accrued- substitution of such 5121A “allow as [matter claimants benefits] of sec- plain language Accordingly, course],” expressly the Federal Circuit interpretation an precludes tion 5121A not applying it was stated the word Congress “appeal” intended “inappli were provisions its 5121Abecause appeals before courts—whether apply statute, date The effective cable”: Circuit, Court, or the Federal Supreme provi its is October which this Court. on or claimants who die apply to sions Appeals C. Substitution Federal Cir 2008. The after October Before the Court language of the analyze not cuit did history. legislative its above, statute provisions As discussed apply to claims and section 5121A meaning is plain application possibility and create pending at VA the intent of the drafters. at odds with adjudication claims the VA history Rather, of section legislative eligi- system. During proceedings, plain meaning supports 5121A claimant now re- ble accrued-benefits Congress was to it that the intent shows during one-year pe- quest substitution process- VA claims and modernize improve “a of the veteran on riod after the death Shinseki, Davis v. not the Court. See ing, under a law claim for benefit adminis- (explaining *8 Vet.App. 22 355 Secretary,” negating thus by tered the history plain lan- legislative supported how §in 20.1302 requirement regulatory VA’s 5102(b)); of see also guage 38 U.S.C. any claim the Board must dismiss Quigg, Ltd. v. 894 Operations U.K. Glaxo allowing the In (“[E]ven after the death of veteran.3 392, 396 “any claim for veteran’s substitution statutory meaning of the plain the when benefit,” permits eligible an the statute the question in resolve language would beneficiary to now contin- court, the histo- legislative before the issue adjudication of a veteran’s ue the merits at least ‘to usually be examined ry should under disability compensation clearly claim for there is a ex- whether determine Shinseki, bene- broadly applies to claims for other but 23 162 3. See Loreth v. well). (2009) (noting is not that 38 C.F.R. 20.1302 fits as disability compensation to claims for limited chapter 11 even though the veteran has claims for entitlement to service connec- (for died and longer no would be able to re- tion various conditions for purposes of ceive the benefits. enacting In disability compensation under chapter 11 5121A, Congress 38, U.S.Code) has directly of title addressed were resolved the the treatment of chapter 51 Court. The Court accrued-bene- dismissed the appeals fits claims in jurisdiction, survivors for lack context of of holding that substi- veterans’ chapter tution disability claims for was not proper to carry on the compensation. below, As discussed al- deceased veterans in this though Court section 5121A applies to because a at veteran’s pending claims claim level, under Agency chapter 11 Congress’s action neces- does not survive the sarily affects veteran’s death this Court’s jurisprudence because an accrued- it benefits has altered was not then pending underpinnings certain Court Court. Id. decisions regarding 47-48. The substitu- Court dis- tion and has cussed statutory created a potential scheme of chapter “zone of (DIC chapter no provisions) substitution” for chapter accrued-bene- (accrued-benefits fits claimants. We provisions), now address those noting chapter matters and conclude provision “makes no legisla- new for survivors,” tion change chapter warrants a provides in the Court’s con- sideration award of DIC benefits, survivors appeals before and that provides Court. law for the termination of disability compensation by reason of the
1. The Court’s Current Caselaw
veteran’s death.
Id. at 47. The Court
on Substitution
concluded that
the “overall
statutory
To understand the Court’s
prac
current
scheme thus
creates a
11 disability
substitution,
tice regarding
the Court’s re
compensation benefit that does not survive
cent cases must be
read
the context of
the eligible veteran’s death.” Id.
upon
cases
which they are based. Pri-
Landicho further noted
or to
practice
Court’s
towas
that Congress set
procedure
forth the
routinely permit substitution
parties,
a qualified survivor to carry on a deceased
under its
43(a),
then-current Rule
upon the
veteran’s claim only in the accrued-bene-
death of
appellant
while the case was
provisions
fits
in section 5121:
pending
See,
before the Court.4
e.g., He
It
in the accrued-benefits
lige
provi-
v. Principi,
(1993) (sub
There, U.S.C. in the veterans the consolidated case had filed Notices Appeal Landicho, and had 7 Vet.App. (emphasis at 47 add- subsequently ed). died appeals before their on
4. 43(a)(2) Under then-extant Rule of the representative sonal the party's deceased Procedure, Court’s estate, Rules of Practice and any or appropriate person may other "any person claiming entitlement to accrued party substituted as a by on motion such 5121(a), benefits 38 under U.S.C. the per- person by any party.” or added). Court determined considered, (emphasis The the given
The Court then moot, claims, had become appeals for a the whether that because separateness was a to vacate the 5121 there course was appropriate under section the claimant (and Ar- controversy” underlying under continuing “case or Board decision appealed decision) (RO) and whether the Court ticle III before so as regional office “ standing to have a claimant would spawn- such ‘from the Board decision prevent ” The Court appeal. pending the pursue at 53-54 consequences.’ Id. ing any legal controversy no case or that there held was Munsingwear, v. (quoting United States relief the Court there was no because L.Ed. 36 S.Ct. U.S. veterans the deceased provide to could (1950)). 11 died under their claims because Brown, the Federal In v. Cir- Zevalkink them, provided no relief could be upheld this Court’s decision expressly cuit they any “because claims to the survivors for service con- in that a claim Landicho Id. the Court.” are not before may have a veteran’s death does not survive nection Furthermore, held the Court at 49. appropriate was not claimants accrued-benefits the section 5121 claimant the because accrued-benefits veterans’ pursue standing no had appeal. standing pursue lacked “adversely not they were claims because (Fed.Cir.1996). appeal. decisions by the Board affected” that the determined sur- Federal Circuit 7266(a) Id.; (providing see 38 U.S.C. “adversely not affected” spouse was viving adversely affected” person that “a her to to allow Court’s refusal this must file a Notice Board decision final for her deceased hus- herself substitute days in within Appeal this Court band, that a claim for accrued emphasizing mailed). The notice decision from the separate a claim benefits was injury was no that there determined disability benefits. compensation claimants accrued-benefits potential benefits that “an accrued Id. It observed because by the Board decisions
caused veteran’s under- separate from the claim is in the two decisions of the Board each connection and lying claim for service dis- nullity. had been rendered a at 102 F.3d 1243. ability compensation.” nullity been rendered Each had noted The Federal Circuit further effect) (i.e., because without force claim has its separate in a were state Board decisions nonfi- and its requirements own procedural own of the veterans’ deaths nality at the date adjudication, procedures administrative (Board decisions became nonfinal that “an accrued NOA) including requirement timely filing of an and because a separate file claimant must benefits no serve longer “could Board decisions appellate initiate NOD with the RO to veter- adjudicatory purpose since the at The Federal Id. 1243-44.5 him.” Id. 53 review.” claims had died with an’s addition, separately her from hus- accrued benefits this more 5. noted Court’s as Pekular, part her status as claim in Cir- band’s decision in the Federal recent adjudicat- been appropriate claimant not juris- had Zevalkink cuit's decision altered that this Court Zev- ed. The Federal Circuit stated aspect of Landicho because dictional question perhaps “could remand did conclude Circuit alkink Federal person] qualifies as an accrued [a whether that dismissal of was RO," Pekular, but the claimant to Federal at 499. possible result. grant a require that this Court did not noted that Circuit in Zevalkink The Federal Circuit Zevalkink, 102 case. remand accrued- limited Court had determined that the this *10 at 1244. pursue claim F.3d must her benefits claimant Circuit date, concluded that a “after veteran’s tive and the Court was subsequently death, the claim longer is no one for dis- informed that appellant had died more ability compensation but rather one for than six months earlier. Despite Zevalk accrued benefits.” Id. at 1244. Regard- analysis ink’s describing the nature of an ing standing, Federal Circuit ex- accrued-benefits claim as being separate plained: from a veteran’s underlying claim for ser connection, vice the Federal Circuit in
The administrative and appellate proce-
Padgett
found that
dures
accrued-benefits
available to [an accrued-benefits
claimant did have standing
permit
sub
separate
claimant] on her
claim ensure
stitution on the
veteran’s
service
she
not
injury by
will
suffer
connection,
473 F.3d at
first, conclud
Court of
Appeals’
Veterans
decision to
ing that
continuing
“[t]he
deny
relevance and
Any
substitution.
delay inherent
preclusive effect that the
issues
in
pursuing
claim,
decided
her own
when this
Padgett’s appeal have for her
procedure
statute,
is established
does
5121(a) claim are sufficient to meet
constitute the kind of actual or
‘case or controversy’ requirement,” id.
injury
threatened
that confers standing.
Second, the Federal Circuit concluded that
Zevalkink,
Subsequently, the Federal Circuit fur- opinion reversing banc the Board decision ther refined its view of Landicho and Zev- would be improper because “it would dis- that, alkink and held in certain circum- regard the final otherwise determination of stances, an accrued-benefits claimant relating issues to the accrued-benefits be substituted for the deceased veteran on claim.” Id. at Again, 1369. the Federal the disability benefits claim in order to in Padgett Circuit emphasized that substi- protect the accrued-benefits claimant’s le- tution of the accrued-benefits claimant on gal Padgett, interests. the Federal Cir- and the entry judg- cuit distinguished Zevalkink and reversed pro ment nunc tunc as of the time of the this Court’s denial of Padgett’s Mrs. mo- judicial veteran’s death “furthers and ad- tion to be substituted on her deceased ministrative economy by not requiring re- husband’s appeal based on its determina- litigation and readjudication of al- issues tion that she had standing pursue his ready decided by the veterans Court.” Id. (Fed.Cir.2007). claim. 473 F.3d added). 1370 (emphasis The Federal Padgett involved a case where this Court thus recognized Circuit similarity had issued an en opinion, banc reversing a adjudication the merits of the claims of an Board decision and remanding for the as- underly- claimant and the signment of disability rating and ing effec- claims of the veteran. *11 ap- the and dismissed tion to substitute in Octo- this Court Padgett, on
Relying Id. to Landicho. Pekular, pursuant peal, in its decision 2007 issued ber in this allowed holding that substitution the Federal cases next from The two briefing only if a veteran died di- Court not Phillips and Hyatt —do Circuit — was completed. merits addressing on the the the case in of this Court rectly assist of appropriateness adher- held continued the Court’s The Court whether issue upon is war- based and is determined Zevalkink to Landicho substitution ence “sub- of section had been the enactment light in of the veteran’s case ranted whether Shinseki, F.3d Hyatt v. the veteran’s See before 5121A. for decision” mitted (affirming three-part established The Court death. substitution, where of denial this Court’s permit to sub- be satisfied that must test had the Court died after the veteran had merits as on the adjudication and stitution it decision but a favorable issued dis- and than vacatur Padgett, rather concluding the judgment, entered had “First, the matter in Landicho: as missal standing; lacked claimant accrued-benefits for decision submitted have been must merits decision this Court’s of withdrawal Second, appellant’s death]. [prior the adversely affect accrued- not would is, appropriate must be substitution —that the decision because claimant benefits have must substitution seeking party the prose- her in materially assist not would Third, justice of the interests standing. at claim); Phillips, 581 her cuting substitution.” support must and fairness judgment this Court’s (reversing If the test is Pekular, at 502. (1) cases, the holding that consolidated the deny is to satisfied, the then Court to be standing Davis had daughter of Mr. dismiss, as in and and vacate substitution him, pre- assuming she substituted specifi- Pekular The Court Landicho. as an rights her served a via- remains “Landicho noted that cally on claimant, this Court’s decision set test subject the we to precedent, ble veteran’s claim—remand- merits of the Pad- from opinion in this derived forth exami- medical on an erroneous based ing explained The Court Id. 501. gett.” significant report nation “remove[d] — substitution, a motion faced with when obtaining ac- to path from her roadblock” Ei- applicable: will be of two routes one this benefits, vacating Court’s crued Padgett applies. or applies Landicho ther an effect” have “adverse opinion would that a “is case further held The Court Id. (2) sub- her; daughters, veterans’ both “upon completion the Court to submitted” rep- proper to be being determined ject to when which occurs period, briefing of the estates, were the veterans’ resentatives of happens: events following three of one of purposes entitled brief, (1) reply appellant’s of the filing The claims be- fathers’ EAJA their prosecuting reply (2) to file a of the time expiration death “an EAJA survives cause brief, filing waiver veteran, of whether regardless 505. Id. at reply file a brief.” right actually filed was application EAJA that “substitution Court held death.”). his prior to veteran-claimant is warranted claimant accrued on Caselaw Section 5121A Impact 2. prior events occurs if one of these Applying Id. With enactment appellant.” death re- now, in some critical Congress Mr. has test, determined this legislated previously spects, altered the submission prior to had died Pekular disability- a veteran’s therefore, mo- between and, denied the distinction case of his *12 benefits claim and an accrued-benefits enactment of section 5121A claim discussed analyzed by and this Court claim for VA benefits no longer necessarily and the Federal Circuit in Landicho and dies with the veteran. The legislation ex- By Zevalkink. recognizing that an ac- pressly recognizes that an accrued-benefits crued-benefits claimant pursue the claimant, in cases, appropriate can contin- claim, Congress has decided to ue the veteran’s By claim. expressly al- change the distinction that glean- had been lowing substitution throughout the admin- ed as congressional intent from the statu- process, istrative including the substantive tory schemes of chapter 11 51. appeal of a veteran’s VA, claim within Pekular stated Padgett created two Congress has largely altered the distinc- (1) routes for this Court to follow follow— tion previously drawn Landicho and Landicho and vacate the underlying Board Zevalkink between the deceased veteran’s decision, appeal, dismiss the and the ac- claim and that of the surviving eligible begins crued-benefits claim anew at VA accrued-benefits claimant. Any remaining adjudication of the merits of the claim distinction has been reduced to the admin- benefits, follow Padgett and allow requirement istrative filing of an accrued- substitution on the Court. benefits claim and the determination of light of new section there are still eligibility for accrued benefits. routes, two but the first route has become more narrow and the second route wider. 3. Elimination “Zone No Substi- of of Congress has now indicated that the con- on Appeal tution” gressional intent to treat a veteran’s claim as an entirely We conclude that no separate statutory rationale entity now exists from a for foreclosing survivor’s the opportunity accrued-benefits claim no for substi- longer Thus, exists. tution on essential statuto- at this Court based on the ry analysis i.e., timing of statutory the death of the veteran. Our Landicho — legislated scheme distinctions existing between practice an permits substitution after accrued-benefits claim and a veteran’s “was case submitted” to the Court— claim and required a separate adjudicative i.e., where the death occurred after the proceeding on the accrued-benefits claim briefing was completed. With the enact- to provide the sought relief eligible 5121A, ment of section Congress legislated accrued-benefits claimant—is no longer option up date applicable and Landicho is inconsistent the Board decision. The legislation there- clearly the now expressed congres- potential created a “zone of no substitu- sional intent underlying the legisla- new tion” accrued-benefits claim- tion. consequently We hold that the Lan- ants who wished to substitute themselves dicho imperative to dismiss a case pending for the deceased veteran where the veter- Court, before this despite the existence of an had died issuance of the Board a person who meets require- status decision but the expiration of the 5121(a) ments is, of section therefore, time filing a reply brief in this Court. eligible to benefits, receive accrued is now If this Court continued to follow Pekular largely inapplicable. subsequent to the enactment this legis-
The common lation, foundation for we Landicho would be denying substitution and Zevalkink and this practice Court’s where veterans had died during this win- dismissing appeals is the doctrine that a dow of time. This “zone of no substitu- veteran’s claim dies with the veteran. tion” between issuance of the Board deci- This foundation now has shifted with the sion and “submission” of the case would be has Congress claimant. Since because, as benefits no rational distinction
based an accrued- an avenue for created enacting now has indicated Congress *13 a pursue to claimant to continue benefits benefits 5121A, disability the veteran’s the veter- and the claim within VA the veteran veteran’s not die with claim does death, will con- no henceforth by a survivor an’s Court claim accrued-benefits substitution, in all cases requested, interest that if separate a sider represents longer regardless from the pursued apart before the Court separately pending must be a veteran’s claim for at the time of underlying stage briefing benefits. veteran’s claim- eligible An accrued-benefits death. of section the enactment With appealed “adversely by affected” ant is Landicho, considered circumstances claim denying a veteran’s Board decision changed. To Zevalkink, have and Pekular pursue standing to and has for benefits dismissing apply those cases to continue claim because on the veteran’s substitution there is though even at the Court adjudica- by the VA or she is affected he claimant, accrued-benefits eligible an in the same the veteran’s claim tions on ap- briefing on solely incomplete on based at the time was affected way the veteran a statuto- inconsistent with would be peal, Appeal. Notice of 38 U.S.C. he filed his includes the recent- analysis which now ry 7266(a) (“In review order to obtain Congress statute. substitution ly enacted of the Board a final decision Court] of [this statute, section the substitution enacted ..., by such adversely affected person a delay, 5121A, the concern to address ”). appeal.... file a notice of decision shall unfairness, inefficiency. Appendix See 17) 110-789, (July (H.R.Rep. No. at 166 a clear, effect of the adverse To be 2008) (Committee Affairs on Veterans’ by apply- can be removed Board decision 5892). To con- accompany Landicho, H.R. to report remedy established ing be- in this Court tinue bar i.e., Board decision by vacating the supra; (before early his died too cause a veteran such dismissing appeal. When (after filed) late or too final brief was taken, claim- the accrued-benefits action is decision) and there- of the Board issuance processed his or her claim may ant have begin an survivors to by require eligible novo, effect from any preclusive without de adjudi- at VA to entirely proceeding new decision, now vacated. previous Board already essence of the same cate the Thus, two claimant has an accrued-benefits with the is inconsistent Court request is to substitu- option One options. legislative in the scheme. change of a carry on the tion and thus to is process to the VA administrative change judicial pro- through the deceased veteran And, congressional prerogatives. within of no the “zone now without cess—and Court, logic applicable to the while not is, re- by not The other substitution.” approach a different now dictates substitution, permit the Board questing subsequent passage claim to veteran’s decision on deceased legislation. new vacated, the accrued- pursue and to claim anew. benefits that,
Therefore, we now hold
Court, it
5121A,
sought in this
If substitution is
the enactment of section
based on
the Court’s discretion
remains within
disability
benefits
first
veteran,
The Court must
substitution.
permit
the death of the
claim survives
Secretary a determination
from the
bene
obtain
purpose
providing
not for
is an
movant
particular
to whether
veteran,
as
purpose
but for the
fits to a
claimant. This
eligible
eligible
of an
accrued-
furthering the claim
that,
a factual determination
unless con
fairness to the parties) (citing Mitchell v.
ceded
appeal,
Overman,
must be
62, 64-66,
103 U.S.
within a
period set
time. See Zevalk
gett,
(“Absent
ed. claim is derivative accrued-benefits of the Court that the Clerk ORDERED refusal and that automatic veteran’s claim this case to caption of change the shall permit now the Breedlove is that Brenda reflect in the delay causing an unwarranted was further It is appellant. many accrued-benefits adjudication of not later appellant, ORDERED Zevalkink, F.3d at claims. See order, date of this days after the than 60 (“[A]n claim is derivative accrued benefits principal brief. file her for service connec- of the veteran’s i.e., tion, claimant’s entitlement KASOLD, Judge, concurring: Chief entitlement.”); the veteran’s based on of 38 U.S.C. that enactment agree I Nicholson, 1364, 1369 473 F.3d Padgett v. of no substitu- creates “zone 5121A (“[A]n *15 of our revaluation that warrants the tion” any adjudications prior ‘incorporates requirements existing substitution issue on claims of the service-connection crite- of the strict substitution elimination veteran, it derives brought by the today’s that in Pekular ria established veteran’s service-connection from the however, agree, I do not opinion reflects. Peake, ”); Padgett also v. claim.’ see majori- in the much of the discussion with (2004) (Kasold, J., dis- C., ante under section ty’s opinion senting). Court). (Substitution Appeals Before a claim- good reason for There stated, reflects section 5121A Succinctly vet- a deceased ant to seek substitution statu by Congress not an alteration claim, or, alternatively, begin eran’s dis the veteran’s tory between distinction adjudication of an the vacatur anew with accrued claim and an ability compensation filing of a claim and on the veteran’s claim; remains: that distinction claim; claim is entitled e.g., a new new benefits, the veteran’s claim One is below. Disabled novo decisions two de in duty to assist that Affairs, the attendant Sec’y with v. Veterans Am. Veterans etc., (Fed.Cir.2003) evidence, while the gathering cludes beneficiary’s other is an the two-administrative-re- (holding limit benefits, a much more necessitates generally requirement claim for view new, initial adjudication Board for a duty to assist and ed remand at the is submitted as it existed when new evidence on the record decision is based Board, by the claim- Compare waiver death. to the absent time of the veteran’s ant). Shinseki, scope the full of the Secre- Although 590 F.3d Golz v. seen, I (“VA remains to be tary’s regulations ‘make rea required to on our they can have no effect agree that relevant records efforts to obtain sonable records) fully I concur jurisdiction and that the claim (including private by enact- created of no substitution” “zone adequately ant identifies ” the dis- warrants of section 5121A ment Secretary to obtain’ and authorizes limiting substitution rigid and mantling of 5103A(b)(1))), with Ral (citing 38 U.S.C. Court. criteria on West, Vet.App. v. ston (“[Entitlement must to accrued benefits that was evidence based on
be determined constructively in the physically
either death.”). time of file at