Mrs. Julianne Hyatt is the widow of Mr. Paul Hyatt, a veteran who died on August 24, 2007, while his claim for disability compensation was pending. On July 22, 2008, the United States Court of Appeals for Veterans Claims (“Veterans Court”) issued an order denying two motions filed by Mrs. Hyatt. The first motion requested that the court substitute her as a party in Mr. Hyatt’s case. The second asked the court to give nunc pro tunc effect to the Veterans Court’s decision on an appeal taken by Mr. Hyatt for which a decision was issued but judgment was not yet entered prior to his death. Because we conclude that Mrs. Hyatt lacks standing to be substituted as a party, we affirm the Veterans Court’s disposition of both motions.
I. BACKGROUND
Mr. Hyatt served in the United States Marine Corps from December 1958 to September 1962. In 1959, Mr. Hyatt was injured when a member of his military unit negligently struck him in the back with a bayonet during a ceremony at the Tomb of the Unknowns at Arlington National Cemetery. The serviceman responsible for Mr. Hyatt’s injury was disciplined by court martial.
In 1983, Mr. Hyatt filed a claim for disability compensation for a lower-back *1366 condition, which he alleged resulted from the 1959 bayonet injury. Along with his application, Mr. Hyatt submitted lay statements describing the circumstances surrounding the bayonet incident. The statements disclosed that the serviceman had been court-martialed, but the court martial records were not submitted and the Department of Veterans Affairs (“VA”) did not attempt to acquire them. In December 1983, a VA regional office denied his claim and Mr. Hyatt did not appeal.
In 1998, the VA reopened Mr. Hyatt’s case in response to newly submitted evidence. After his claim was again denied, Mr. Hyatt suggested that the Board of Veterans’ Appeals (“Board”) retrieve the court martial records. The Board declined to do so. Although the Board found that the 1959 bayonet incident had occurred and that Mr. Hyatt currently suffered from a back disability, it also found that a nexus between the two had not been established because there was “no medical, or consistent lay evidence, of the nature and extent of [the bayonet] wound.” Accordingly, the Board denied his claim for service connection.
On appeal to the Veterans Court, Mr. Hyatt argued that the VA had failed to satisfy its statutory duty to assist him in obtaining the evidence and information necessary to substantiate his claim. On August 6, 2007, the Veterans Court issued its decision, which reversed the Board’s finding that the duty to assist had been satisfied and remanded for further proceedings. The Veterans Court noted the relevance of the court martial records:
In significant part, the Board rested its decision that there was no nexus between Mr. Hyatt’s current disability and his injury in service on its finding that there was “no medical, or consistent lay evidence, of the nature and extent of’ the wound to Mr. Hyatt’s back that he suffered in service. Those dealing with veterans’ claims should understand that a court-martial involving an injury to another serviceman likely would contain evidence regarding the extent and nature of the injury for purposes of aggravation and mitigation.
Hyatt v. Nicholson,
Mrs. Hyatt filed motions requesting substitution of party and reissuance of the judgment nunc pro tunc as of the date of Mr. Hyatt’s death. Mrs. Hyatt hoped that these motions, if successful, would result in the court martial records being treated as part of Mr. Hyatt’s file at his date of death, thereby making them available for Mrs. Hyatt’s claim for accrued benefits under 38 U.S.C. § 5121. In a July 22, 2008 order, the majority of the Veterans Court, over a dissent, determined that Mrs. Hyatt did not have standing to be substituted as a party and thus could not seek reissuance of the judgment.
Hyatt v. Peake,
II. DISCUSSION
On an appeal from the Veterans Court, this court “shall decide all relevant questions of law, including interpreting
*1367
constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). “Our review is limited to questions of law, and it is
de novo.” Bailey v. West,
“[A] veteran’s claim to disability compensation ... is terminated by his or her death.... ”
Richard v. West,
For cases in which the accrued benefits claimant requests substitution, this court has identified a two-part inquiry for deciding if substitution is proper.
1
Padgett v. Nicholson,
In this case, Mrs. Hyatt seeks to be substituted as a party in Mr. Hyatt’s case and to have judgment reissued nunc pro tunc so that she can benefit from the Veterans Court’s decision finding a violation of the duty to assist and remanding for the VA to attempt to obtain the court martial records. The majority of the Veterans Court relied on what appear to be two separate grounds to support its conclusion that Mrs. Hyatt lacks standing for substitution. First, it found that substitution was inappropriate because the result of Mr. Hyatt’s appeal lacked the type of “continuing relevance” to Mrs. Hyatt’s accrued benefits claim that is required by this court’s precedent. Specifically, it concluded that the “continuing relevance” requirement was only met in cases in which the judgment sought to be reissued would result in an imminent entitlement to benefits. Second, it found that Mrs. Hyatt would not *1368 be “adversely affected” if the result in Mr. Hyatt’s appeal was vacated because even if the decision was to be reissued nunc pro tunc, the court martial records would not be part of the record for Mrs. Hyatt’s accrued benefits claim. On appeal, Mrs. Hyatt argues that neither ground is correct.
A
The first ground of the Veterans Court’s decision rests on its interpretation of our decisions in
Padgett
and
Pelea v. Nicholson,
In
Padgett,
this court addressed a situation in which the Veterans Court, unaware that Mr. Padgett was no longer living, issued a decision that, among other things, reversed a finding by the Board that Mr. Padgett’s injury was not service connected.
In Pelea, Mrs. Pelea, the surviving spouse of a veteran, died while pursuing her claim for dependency and indemnity compensation.
would not entitle [Mrs. Pelea] to any accrued benefits. The Veterans Court held only that the Board should further consider whether the VA had adequately informed her what additional evidence she should submit to support her claim. Under that ruling, she still was a long way from establishing either that her deceased husband had served in the United States military or that his death was connected with such service.
Id. at 1293.
In Mrs. Hyatt’s case, the majority of the Veterans Court distinguished
Padgett
as involving a “very different posture” than that of Mrs. Hyatt’s case.
Hyatt v. Peake,
We agree with the dissent that the question of whether Mrs. Hyatt may be substituted as a party in Mr. Hyatt’s case is not fully resolved by the fact that the Veterans Court decision at issue did not decide the ultimate issue of entitlement to benefits. While it is of course true that
Padgett
involved such a factual scenario, we see no such requirement in the court’s reasoning. Rather, in a case such as this where an accrued benefits claimant is seeking to be substituted for the purpose of requesting that a decision be reissued nunc pro tunc,
Padgett
only requires that the decision have “continuing relevance” such that, but for the nunc pro tunc relief, the accrued benefits claim would be adversely affected.
The rule in
Padgett
was not changed by
Pelea.
The portion of
Pelea
cited by the Veterans Court serves only to describe why Mrs. Pelea’s estate could gain nothing by being substituted as a party. Before its discussion of
Padgett,
the court in Pelea had already concluded that Mrs. Pelea’s claim for dependency and indemnity compensation had died with her and could not be pursued by her estate.
Therefore, we conclude that the Veterans Court erred to the extent that it suggested that Mrs. Hyatt lacked standing because the judgment she sought to have reissued would not result in an imminent entitlement to benefits. The proper question is whether her accrued benefits claim would be “adversely affected” if the judgment on Mr. Hyatt’s appeal was not reissued nunc pro tunc as of his date of death. With the correct standard identified, we turn to the Veterans Court’s second ground for its decision — that reissuing the withdrawn decision would have no effect on Mrs. Hyatt’s § 5121 claim.
B
Mrs. Hyatt alleges that her accrued benefits claim will be “adversely affected” if the Veterans Court’s judgment is not reissued nunc pro tunc. This is so, she contends, because her claim must be based on “evidence in the file at date of death.” 38 U.S.C. § 5121(a). In her view, if the decision is reissued nunc pro tunc, her chances of receiving benefits under § 5121(a) will be improved because she *1370 will be entitled to rely on the court martial records. However, if the judgment is not reissued, her claim will be limited to the evidence in the file before Mr. Hyatt took his appeal, which the Board previously found insufficient to allow payment of benefits.
The government and the majority of the Veterans Court take issue with Mrs. Hyatt’s premise that reissuing the judgment would allow consideration of the court martial records as part of her accrued benefits claim. In the majority of the Veterans Court’s view, whether the decision is reissued nunc pro tunc is irrelevant to Mrs. Hyatt because her § 5121 claim “is explicitly limited to the evidence ‘in the file’ at the date of the veteran’s death — which does not include the court martial records that the Court ordered VA to obtain on remand.”
Hyatt v. Peake,
First, Mrs. Hyatt suggests that this is a circumstance under which evidence can be submitted after the veteran’s death under § 5121(c). That subsection provides:
Applications for accrued benefits must be filed within one year after the date of death. If a claimant’s application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid.
38 U.S.C. § 5121(c) (emphasis added). In
Hayes v. Brown,
the Veterans Court noted the perceived conflict between subsections (a) and (c) of § 5121.
Next, Mrs. Hyatt refers to several provisions in the VA Adjudication Manual that allegedly support her position. According to Mrs. Hyatt, the Manual provides that certain evidence that is not physically “in the file at date of death” is nevertheless considered when adjudicating § 5121 claims. See VA Adjudication Manual, *1371 M21-1 MR, Part VIII, Ch. 3.1.(f). While Mrs. Hyatt is correct that the evidence need not be physically “in the file,” the Manual does require that such evidence be in the VA’s possession as of the date of death. Id. This is consistent with the VA’s interpretation of “evidence in the file at date of death” codified at 38 C.F.R. § 3.1000(d)(4). As Mrs. Hyatt admits, the court martial records were not in the VA’s actual possession when Mr. Hyatt died.
Finally, Mrs. Hyatt asks us to find that the court martial records fall within the ambit of “evidence in the file at date of death” because they were in the VA’s constructive possession. Mrs. Hyatt argues that a finding of constructive possession is appropriate because the VA’s court-ordered task of obtaining the records was entirely ministerial. Further, she suggests that such a rule would yield better results because it would eliminate uncertainty about whether veterans in cases such as this would survive until the VA obtained physical possession of records. For authority, she cites
Bell v. Derwinski,
We disagree that the constructive possession theory set forth in Bell should be extended to the facts of this case. First, it appears that the documents at issue in Bell were either in the VA’s possession or under its control. Id. at 612-13. Moreover, three of the four documents in Bell “were generated within the VA by its agents or employees” and the fourth “was submitted to the VA by appellant as part of her claim.” Id. In this case, the court martial records (assuming they still exist and are obtainable by the VA) were not generated by, submitted to, or otherwise within the VA’s possession or control. Further, adopting Mrs. Hyatt’s theory of constructive possession would contravene the clear limitation Congress placed on accrued benefits claims in § 5121(a). The authority to enlarge the universe of evidence upon which accrued benefits claimants may rely lies with Congress, not this court.
Because the court martial records would not be “evidence in the file at date of death” within the meaning of § 5121(a) even if the Veterans Court reissued its decision on Mr. Hyatt’s appeal nunc pro tunc, we conclude that the withdrawal of the Veterans Court’s decision in Mr. Hyatt’s appeal will not “adversely affect” Mrs. Hyatt.
See Padgett,
III. CONCLUSION
For the foregoing reasons, we affirm the Veterans Court’s decision denying Mrs. Hyatt’s motions for substitution of party and for the judgment in Mr. Hyatt’s appeal to be reissued nunc pro tunc as of the date of Mr. Hyatt’s death.
AFFIRMED
Notes
. As part of the Veterans' Benefits Improvement Act of 2008, Congress created a new statutory section that addresses substitution. The new provision, codified at 38 U.S.C. § 5121A(a)(1), provides:
If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.
However, this provision applies only in cases in which the veteran died after October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub.L. No. 110-389, 122 Stat. 4145, 4151. Because Mr. Hyatt died in August 2007, it is inapplicable in this case.