Charles L. Breedlove Brenda Breedlove v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 08-3059

CHARLES L. BREEDLOVE , APPELLANT ,

BRENDA BREEDLOVE , MOVANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KASOLD, Chief Judge, and MOORMAN, and LANCE, Judges.

ORDER

Pending before the Court is the appellant's appeal of a September 9, 2008, Board of Veterans'

Appeals (Board) decision that denied his claim for entitlement to compensation under 38 U.S.C.

§ 1151 for injuries resulting from a door malfunction at a VA hospital. On May 18, 2009, during

the pendency of this appeal, but before briefing had begun, the appellant died. The merits of this

case are not currently before the panel. The issue we address is whether 38 U.S.C. § 5121A,

recently enacted in 2008, applies to this appeal or otherwise forms a basis for allowing the

substitution of the veteran's spouse to carry on this appeal. On January 26, 2010, the Court heard

oral argument.

For the reasons discussed below, we hold that 38 U.S.C. § 5121A is not directly applicable

to this Court. The enactment by Congress of 38 U.S.C. § 5121A nonetheless alters the

underpinnings of this Court's jurisprudence on substitution and creates a potential "zone of no

substitution" for eligible accrued-benefits claimants seeking substitution on appeal. Accordingly,

we conclude that no rationale now exists for creating a limited opportunity for substitution on appeal

here based on the timing of the death of a veteran. We now hold that, based on the enactment of

section 5121A, a veteran's chapter 11 disability benefits claim survives the death of the veteran, not

for the purpose of providing VA benefits to a veteran, but for purposes of furthering the processing

of the claim of an eligible accrued-benefits claimant. We conclude that based on the change in

circumstances – the enactment of section 5121A – to allow substitution on appeal here, we no longer

require that the case be "submitted," which occurs when a reply brief is filed, the time for filing a

reply brief has passed, or the right to file a reply brief is waived. Pekular v. Mansfield, 21 Vet.App.

495 (2007). For the reasons that follow, the Court will grant the motion for substitution and

substitute Brenda Breedlove as the appellant in this case.

I. BACKGROUND

On August 14, 2009, the appellant's counsel, on behalf of Brenda Breedlove, the asserted

surviving spouse of the veteran-appellant, filed a motion for substitution of party, contending that

such action is appropriate under the statutory provisions of 38 U.S.C. § 5121A. See 38 U.S.C.

§ 5121A(a)(1) (2008) (added by Pub. L. No. 110-389, title II, subtit. A, § 212(a), 122 Stat. 4151

(Oct. 10, 2008)). The veteran died on May 18, 2009, after the October 10, 2008, effective date of

this new legislation. On April 30, 2010, in an effort to determine whether Brenda Breedlove meets

the status requirements of 38 U.S.C. § 5121(a), the Court issued an order directing the Secretary to

file a response informing the Court as to a decision of the VA Philadelphia Regional Office and

Insurance Center (ROIC) pertaining to the status of Mrs. Brenda Breedlove as an eligible

accrued-benefits claimant.1 In response, the Secretary informed the Court that VA has determined

that Mrs. Brenda Breedlove has been recognized as the appellant's widow "for any putative benefits

to which she may be entitled." May 18, 2010, Secretary's Amended Response at 1.2 Accordingly,

Mrs. Brenda Breedlove qualifies as a person eligible to receive accrued benefits under section

5121(a) because she is the veteran's spouse and has filed a claim for accrued benefits within one year

of the veteran's death.

II. PARTIES' CONTENTIONS

The appellant's counsel contends that the statutory provisions of section 5121A apply to this

appeal because Mr. Breedlove died while "an appeal of a decision" with respect to his claim for

section 1151 benefits was "pending " and Brenda Breedlove satisfies all requirements set forth in

the statute for substitution in place of her deceased husband: (1) The appellant died on May 18,

1

Section 5121(a) of title 38, U.S. Code, is entitled "Payment of certain accrued benefits upon the death of a

beneficiary" and provides:

(a) Except as provided in sections 3329 and 3330 of title 31, periodic monetary benefits (other than

insurance and servicemen's indemnity) under laws administered by the Secretary to which an

individual was entitled at death under existing ratings or decisions or those based on evidence in the

file at date of death (hereinafter . . . referred to as "accrued benefits") and due and unpaid, shall, upon

the death of such individual be paid as follows:

....

(2) Upon the death of a veteran, to the living person first listed below:

(A) The veteran's spouse.

....

....

38 U.S.C. § 5121(a). Section 5121(c) provides that "Applications for accrued benefits must be filed within one year

after the date of death." 38 U.S.C. § 5121(c).

2

The Secretary attached to his response a letter from the VA ROIC dated May 7, 2010, which noted its decision

on Mrs. Brenda Breedlove's claim for death benefits. May 18, 2010, Secretary Amended Response, Attachment. The

ROIC granted one month of death pension benefits (for June 2009), denied accrued benefits because the veteran was not

entitled to any benefits, and denied her claim for dependency and indemnity compensation. Id.

2

2009, after the enactment of section 5121A; (2) Brenda Breedlove, as the surviving spouse of the

deceased veteran, is eligible to receive accrued benefits under section 5121(a)(2); and (3) the instant

motion for substitution was filed "not later than one year" after Mr. Breedlove's death. At oral

argument, counsel expressed the view that, in light of the congressional intent in enacting section

5121A, it would not be satisfactory for this Court to continue to follow its decision in Pekular v.

Mansfield, 21 Vet.App. 495 (2007), because of the delay that would result from requiring Mrs.

Breedlove essentially to restart the claim for benefits at VA. In Pekular, this Court denied a motion

to substitute the surviving spouse of the veteran as the appellant because the veteran died before the

expiration of the time to file his reply brief – that is, he died before "his case was submitted for

decision." Id. at 505.

Although the Secretary, in his opposition to the motion for substitution in Breedlove, did not

analyze the recently enacted substitution statute, section 5121A, the Secretary did analyze the statute

in his October 27, 2009, opposition to a motion for substitution filed in Uphoff, No. 08-2631, which

was consolidated with Breedlove prior to the dismissal of the Uphoff appeal. The Secretary argues

that section 5121A is limited to matters still pending before VA and is not applicable to appeals

pending before the Court. Uphoff, U.S. Vet. App. No. 08-2631, Secretary's Opposition at 8-15

(Oct. 27, 2009). The Secretary asserts that the language of section 5121A(a)(1) regarding

substitution is unclear as to whether it refers to appeals pending before VA only or also to appeals

pending before this Court. The Secretary, however, maintains that in reading section 5121(a)(1) in

the context of the whole statute and in relation to other statutes, it becomes apparent that the

provision does not apply to the courts.

In addition, the Secretary contends that the legislative history shows that the congressional

intent was to improve the "disability claims processing system" and that history discussed concepts

that are clearly applicable to a claim pending before VA and not within the province of the Court.

Id. at 12-13; see Secretary's November 24, 2009, Notice of Supplemental Authorities, Appendix

(Appendix) (containing legislative history for 38 U.S.C. § 5121A). During oral argument in the

instant appeal, the Secretary argued that the plain language of the statute, demonstrated by its

placement within title 38 and by its provisions that delegate authority to the Secretary, indicates that

the statute applies only to the Agency and not to the Court. The Secretary contends that the Court

should deny the motion for substitution because caselaw allows substitution only in limited

circumstances and this case does not meet those circumstances. Specifically, the Secretary argues

that the instant case fits squarely within the circumstances of Pekular because the instant appeal was

not "submitted for decision" at the time of Mr. Breedlove's death.

III. ANALYSIS

The question before the Court is whether a proper interpretation of the statutory provision,

38 U.S.C. § 5121A, requires that substitution be allowed when a claimant dies while his appeal is

pending either at the Court or at VA or whether the statutory provision applies only to VA. The

Court interprets a statute de novo. See 38 U.S.C. § 7261(a)(1); Majeed v. Nicholson, 19 Vet.App.

525, 530-31 (2006); see also Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003)

("[I]nterpretation of a statute or regulation is a question of law . . . .").

3

A. The 2008 Statute, 38 U.S.C. § 5121A

Section 5121A allows the filing of a request for substitution if a claimant dies while his or

her "appeal of a decision" with respect to a claim for a benefit is pending. Section 5121A provides:

(a) Substitution.– (1) 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.

(2) Any person seeking to be substituted for the claimant shall present evidence of

the right to claim such status within such time as prescribed by the Secretary in

regulations.

(3) Substitution under this subsection shall be in accordance with such regulations

as the Secretary may prescribe.

(b) Limitation.– Those who are eligible to make a claim under this section shall be

determined in accordance with section 5121 of this title.

38 U.S.C. § 5121A (emphasis added). When this statute was enacted in October 2008, a VA

regulation directed the Board to dismiss an appeal pending before the Board when the appellant

died. Specifically, § 20.1302 of title 38, Code of Federal Regulations, provided: "An appeal pending

before the Board of Veterans' Appeals when the appellant dies will be dismissed." 38 C.F.R.

§ 20.1302 (2008).

B. Statutory Interpretation

"'Statutory interpretation begins with the language of the statute, the plain meaning of which

we derive from its text and its structure.'" Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007)

(quoting McEntree v. MSPB, 404 F.3d 1320, 1328 (Fed. Cir. 2005)); see Gardner v. Derwinski,

1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning requires examining the specific

language at issue and the overall structure of the statute." (citing Bethesda Hosp. Ass'n v. Bowen,

485 U.S. 399, 403-05 (1988))), aff'd, 5 F.3d 1456 (Fed. Cir.1993), aff'd, 513 U.S. 115 (1994); Sharp

v. Shinseki, 23 Vet.App. 267, 271 (2009); see also McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir.

2008). If "the plain meaning of a statute is discernable, that 'plain meaning must be given effect,'

" Johnson v. Brown, 9 Vet.App. 369, 371 (1996) (quoting Tallman v. Brown, 7 Vet.App. 453, 460

(1995)), unless a "'literal application of [the] statute will produce a result demonstrably at odds with

the intention of its drafters,'" Gardner, 1 Vet.App. at 586-87 (quoting Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564 (1982)); see also Roper v. Nicholson, 20 Vet.App. 173, 180 (2006).

The language of section 5121A allows a request for substitution to be filed under certain

circumstances. Subsection (a)(1) provides:

4

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.

38 U.S.C. § 5121A(a)(1) (emphasis added). We note that the Board is an administrative body that

decides appeals from denials of claims for veterans benefits. The statute is silent on the issue of

whether "an appeal of a decision" refers to an appeal that is pending at the Board only or also to an

appeal that is pending at an appellate court, such as this Court, the U.S. Court of Appeals for the

Federal Circuit (Federal Circuit), and the U.S. Supreme Court.

However, the same statutory subsection refers multiple times to the "claimant" and also

expressly states that the purpose of the substitution is for "processing the claim to completion." This

language indicates persons and events at the Agency level, not parties to litigation in an appellate

court. The term "claimant" means "any individual applying for, or submitting a claim for, any

benefit under the laws administered by the Secretary." 38 U.S.C. § 5100. Congress chose to use

that term throughout chapter 51, the chapter that deals specifically with claims and the Secretary's

obligations – for example, the Secretary's duty to notify and assist claimants (38 U.S.C. §§ 5102,

5103, 5103A, 5104), to give the benefit of the doubt to the claimant (38 U.S.C. § 5107), to reopen

a claim (38 U.S.C. § 5108), to secure an independent medical opinion (38 U.S.C. § 5109). Chapter

51 also addresses effective dates of awards (38 U.S.C. §§ 5110-5113) and the payment of benefits

(38 U.S.C. §§ 5120-5126). The use of the term "claimant" is consistent with the provisions in

chapter 51, which pertain to the Secretary and the Secretary's obligations.

In contrast, Congress chose to use the term "appellant," not "claimant," consistently

throughout chapter 72, which is entitled "U.S. Court of Appeals for Veterans Claims" and pertains

to Court matters. See, e.g., 38 U.S.C. § 7263(b) ("Representation of appellants shall be in

accordance with the rules of practice prescribed by the Court under section 7264 of this title.");

38 U.S.C. § 7264 (b) (providing for service of documents "to the address furnished by the

appellant"); 38 U.S.C. § 7266(b) (describing how "[a]n appellant shall file a notice of appeal");

38 U.S.C. § 7268 ("After the decision of the Court in a proceeding becomes final, the Court may,

upon motion of the appellant or the Secretary, permit the withdrawal by the party entitled thereto

of originals of books, documents, and records . . . ."); 38 U.S.C. § 7292 (discussing review by the

Federal Circuit and providing for certifications of questions under certain circumstances where there

is "disagreement between the appellant and the Secretary"). The only reference to "claimants" in

chapter 72 is found in section 7261(a)(4), which provides that this Court, to the extent necessary to

its decision and when presented, shall "in the case of a finding of material fact adverse to the

claimant made in reaching a decision in a case before the Department with respect to benefits under

laws administered by the Secretary, hold unlawful and set aside or reverse such finding if the finding

is clearly erroneous." 38 U.S.C. § 7261(a)(4). The reference to "claimant" here again is associated

with proceedings before the Agency; specifically, a decision by the Agency that contains a finding

of fact that is adverse to a claimant.

5

As it used the term "claimants" in sections of title 38 that pertain to the Secretary, Congress

similarly chose to use the term "processing claims" in, in addition to section 5121A ("processing the

claim"), section 7732A, another section that pertains specifically to the Agency. This section is

contained within chapter 77, entitled "Veterans Benefits Administration," and was added to title

38 in October 2008 as part of the same bill that contained section 5121A. Section 7732A provides

for examinations and certifications of appropriate employees and managers of the Veterans Benefits

Administration "who are responsible for processing claims for compensation and pension benefits

under the laws administered by the Secretary." 38 U.S.C. § 7732A (emphasis added).

In addition to the terms used in the relevant subsection of section 5121A, the Court looks to

the overall structure of section 5121A for guidance in determining the plain meaning of the statute.

See Sharp, 23 Vet.App. at 273. The Secretary persuasively argues that the overall structure,

placement, and context of section 5121A show that section 5121A applies only to substitution while

a claim or appeal is pending at VA and not to substitution while an appeal is pending at a court.

First, the Court must read the three subsections of section 5121A, which all appear under

"substitution" – (a)(1), (a)(2), and (a)(3) – as a whole. "'[E]ach part or section [of a statute]

should be construed in connection with every other part or section so as to produce a harmonious

whole.'" Meeks v. West, 12 Vet.App. 352, 354 (1999) (quoting 2A N. SINGER , SUTHERLAND ON

STATUTORY CONSTRUCTION § 46.05 (5th ed. 1992)). In this regard, several subsections of section

5121A are incongruous with appellate review in this Court. Section 5121A(a)(2) provides that any

person seeking to be substituted for the claimant must present evidence of the right to claim such

status. This Court, being a court of review, does not normally take evidence in the first instance or

adjudicate such factual issues de novo. See 38 U.S.C. § 7252(b) ("Review in the Court shall be on

the record of proceedings before the Secretary and the Board."). Evidence of eligibility must first

be presented to VA.

In addition, subsections (2) and (3) of section 5121A explicitly provide that substitution shall

be governed by regulations prescribed by the Secretary. It would be incongruous to charge the

Secretary with promulgating regulations that would potentially affect whether this Court will permit

substitution in a particular appeal. As noted by the Secretary, this Court and the Federal Circuit

have independent authority over substitution as evidenced by such cases as Hyatt v. Shinseki,

566 F.3d 1364 (Fed. Cir. 2009); Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007); Pekular,

21 Vet.App. at 502. Prescription by the Secretary as to how the Court is to allow and implement

substitution would violate the separation of powers doctrine. See generally Mistretta v. U.S.,

488 U.S. 361, 383 (1989) (noting the Court's vigilance, inter alia, "that no provision of law

'impermissibly threatens the institutional integrity of the Judicial Branch.'" (quoting Commodity

Futures Trading Comm'n v. Schor, 478 U.S. 833, 851 (1986))); see Bankers Trust N.Y. Corp. v.

United States, 225 F.3d 1368, 1376 (Fed. Cir. 2000) (holding that, pursuant to a basic application

of the separation of powers doctrine, an executive agency (U.S. Internal Revenue Service) was not

free to overturn by regulation the decision of its reviewing court (Court of Federal Claims)). This

is not the manner in which the rule of law operates. See also Ramsey v. Nicholson, 20 Vet.App. 16,

38 (2006) (noting that the Secretary is bound by decisions of this Court and that "for the Board to

predicate an order on its disagreement with the Court's interpretation of a statute or regulation is to

operate outside the law").

6

Second, 38 U.S.C. § 5121A was codified in part IV of title 38, U.S. Code, which

encompasses "General Administrative Provisions" for the programs administered by the Secretary.

Id. at 10-11. Part IV includes chapter 51, which, as discussed above, prescribes rules for filing

claims with VA (subchapter 1), VA's calculating effective dates (subchapter II), and VA's paying

of benefit awards (subchapter III). In contrast, the provisions respecting Court procedures are

codified in a different part and chapter of title 38, i.e., part V, chapter 72.

Finally, when Congress enacted section 5121A, Congress placed the relevant provisions of

the bill in section 212 of title II – Modernization of the Department of Veterans Affairs Disability

Compensation System, which involved provisions to improve claims processing at VA – and not

in title VI, which pertained to Court matters. See Appendix at 212, 214-15, 218-21 (Tab 13)

(Veterans' Benefits Improvement Act of 2008 (compromise reached by House and Senate), S. 3023,

as amended, 154 CONG . REC . H9387-01 (Sept. 24, 2008)).

We hold that the plain meaning of "an appeal of a decision," within the overall structure of

section 5121A, refers to an appeal that is pending at VA only. See Gardner, 1 Vet.App. at 586-87.

We note that the appellant's reliance on the recent decision from the Federal Circuit in Phillips v.

Shinseki, 581 F.3d 1358, 1363 n.1 (Fed. Cir. 2009), is not persuasive. Although the Federal Circuit

stated, in a footnote, that the provisions of section 5121A "allow substitution of such

[accrued-benefits] claimants as a matter of course]," the Federal Circuit expressly stated that it was

not applying section 5121A because its provisions were "inapplicable": The effective date of the

statute, which is October 10, 2008, and its provisions apply to claimants who die on or after

October 10, 2008. The Federal Circuit did not analyze the language of the statute or its legislative

history.

The application of the plain meaning is not at odds with the intent of the drafters. Rather,

the legislative history of section5121A supports the plain meaning because it shows that the intent

of Congress was to improve and modernize VA claims processing, not the Court. See Davis v.

Shinseki, 222 Vet.App. 352, 355 (2009) (explaining how legislative history supported plain language

of 38 U.S.C. 5102(b)); see also Glaxo Operations U.K. Ltd. v. Quigg, 894 F.2d 392, 396

(Fed. Cir.1990) ("[E]ven when the plain meaning of the statutory language in question would resolve

the issue before the court, the legislative history should usually be examined at least 'to determine

whether there is a clearly expressed legislative intention contrary to the statutory language.'"

(quoting Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed. Cir.1989))); Appendix

at 79, 81 (hearing on H.R. 3047 and H.R. 4084 before the Subcommittee on Disability Assistance

and Memorial Affairs of the House Committee on Veterans' Affairs, 110th Cong. 110-60 (statement

of Rep. Hall, Chairman, House Comm. on Veterans' Affairs) (Nov. 8, 2007) (introducing a version

of the bill that would later include section 5121A, H.R. 4084, and referring to the "disability claims

processing system"))); see Appendix at 35, 71 (discussing prior versions of the bill).

Accordingly, the plain language of section 5121A precludes an interpretation that Congress

intended the word "appeal" to apply to appeals before courts – whether the Supreme Court, the

Federal Circuit, or this Court.

7

C. Substitution in Appeals Before the Court

As discussed above, the provisions of section 5121A apply to claims and appeals pending

at VA and create the possibility of substitution in the VA claims adjudication system. During VA

proceedings, an eligible accrued-benefits claimant may now request substitution during the one-year

period after the death of the veteran on "a claim for any benefit under a law administered by the

Secretary," thus negating VA's regulatory requirement in § 20.1302 that the Board must dismiss any

claim after the death of the veteran.3 In allowing substitution on a veteran's claim for "any benefit,"

the statute permits an eligible accrued-benefits beneficiary to now continue the merits adjudication

of a veteran's claim for disability compensation under chapter 11 even though the veteran has died

and no longer would be able to receive the VA benefits. In enacting section 5121A, Congress has

directly addressed the treatment of chapter 51 accrued-benefits claims by survivors in the context

of veterans' chapter 11 claims for disability compensation. As discussed below, although section

5121A applies to claims at the Agency level, Congress's action necessarily affects this Court's

jurisprudence because it has altered the underpinnings of certain Court decisions regarding

substitution and has created a potential "zone of no substitution" for eligible accrued-benefits

claimants. We now address those matters and conclude that the new legislation warrants a change

in the Court's consideration of substitution in appeals before the Court.

1. The Court's Current Caselaw on Substitution

To understand the Court's current practice regarding substitution, the Court's recent cases

must be read in the context of the cases upon which they are based. Prior to 1994, the Court's

practice was to routinely permit substitution of parties, under its then-current Rule 43(a), upon the

death of an appellant while the case was pending before the Court.4 See, e.g., Helige v. Principi,

4 Vet.App. 32 (1993) (substituting veteran's spouse as the appellant); see also Landicho v. Brown,

7 Vet.App. 42, 47 (1994) (noting routine practice). In the 1994 Landicho decision, the Court

repudiated this practice of permitting substitution under the circumstances presented there.

Landicho, 7 Vet.App. at 48-54. There, the veterans in the consolidated case had filed Notices of

Appeal and had subsequently died before their appeals on claims for entitlement to service

connection (for various conditions for purposes of disability compensation under chapter 11 of title

38, U.S. Code) were resolved by the Court. The Court dismissed the appeals for lack of jurisdiction,

holding that substitution was not proper to carry on the appeals of the deceased veterans in this

Court because a veteran's pending claim under chapter 11 does not survive the veteran's death and

because an accrued-benefits claim was not then pending before the Court. Id. at 47-48. The Court

discussed the statutory scheme of chapter 11, chapter 13 (DIC provisions) and chapter 51

3

See Loreth v. Shinseki, 23 Vet.App. 159, 162 (2009) (noting that 38 C.F.R. § 20.1302 is not limited to claims

for disability compensation but broadly applies to claims for other benefits as well).

4

Under then-extant Rule 43(a)(2) of the Court's Rules of Practice and Procedure, for "any person claiming

entitlement to accrued benefits under 38 U.S.C. § 5121(a), the personal representative of the deceased party's estate, or

any other appropriate person may be substituted as a party on motion by such person or by any party."

8

(accrued-benefits provisions), noting that chapter 11 "makes no provision for survivors," chapter 13

provides for the award of DIC survivors benefits, and that the law provides for the termination of

disability compensation by reason of the veteran's death. Id. at 47. The Court concluded that the

"overall statutory scheme thus creates a chapter 11 disability compensation benefit that does not

survive the eligible veteran's death." Id.

The Court in Landicho further noted that Congress set forth the procedure for a qualified

survivor to carry on a deceased veteran's claim only in the accrued-benefits provisions in section

5121:

It is only in the accrued-benefits provisions in section 5121 that Congress has set

forth a procedure for a qualified survivor to carry on, to the limited extent provided

for therein, a deceased veteran's claim for VA benefits by submitting an application

for accrued benefits within one year after the veteran's death. See 38 U.S.C.

§ 5121(a), (c).

Landicho, 7 Vet.App. at 47 (emphasis added).

The Court then considered, given the separateness of the claims, whether for a claimant

under section 5121 there was a continuing "case or controversy" under Article III before the Court

and whether such a claimant would have standing to pursue the pending appeal. The Court held that

there was no case or controversy because there was no relief the Court could provide to the deceased

veterans because their claims under chapter 11 died with them, and no relief could be provided to

the survivors "because any claims they may have are not before the Court." Id. at 49. Furthermore,

the Court held that the section 5121 accrued-benefits claimants had no standing to pursue the

veterans' claims because they were not "adversely affected" by the Board decisions on appeal. Id.;

see 38 U.S.C. § 7266(a) (providing that "a person adversely affected" by a final Board decision must

file a Notice of Appeal in this Court within 120 days after notice of the decision is mailed). The

Court determined that there was no injury to the potential accrued-benefits claimants caused by the

Board decisions because each of the Board decisions in the two appeals had been rendered a nullity.

Each appeal had been rendered a nullity (i.e., without force or effect) because the Board decisions

were in a state of nonfinality at the date of the veterans' deaths (Board decisions became nonfinal

by the timely filing of an NOA) and because the Board decisions "could no longer serve any

adjudicatory purpose since the veteran's claims had died with him." Id. at 53 (emphasis added).

The Court determined that because the appeals had become moot, the appropriate course was to

vacate the appealed Board decision (and underlying VA regional office (RO) decision) so as to

prevent the Board decision "'from spawning any legal consequences.'" Id. at 53-54 (quoting United

States v. Munsingwear, 340 U.S. 36, 39 (1950)).

In Zevalkink v. Brown, the Federal Circuit expressly upheld this Court's decision in Landicho

that a claim for service connection does not survive a veteran's death and that substitution was not

appropriate because the accrued-benefits claimant lacked standing to pursue the appeal. 102 F.3d

1236, 1243-44 (Fed. Cir. 1996). The Federal Circuit determined that the surviving spouse was not

"adversely affected" by this Court's refusal to allow her to substitute herself for her deceased

9

husband, emphasizing that a claim for accrued benefits was a claim separate from the claim for

disability compensation benefits. Id. It observed that "an accrued benefits claim is separate from

the veteran's underlying claim for service connection and disability compensation." 102 F.3d at

1243. The Federal Circuit further noted that the separate accrued-benefits claim has its own

procedural requirements and its own procedures for administrative adjudication, including a

requirement that "an accrued benefits claimant must file a separate NOD with the RO to initiate

appellate review." Id. at 1243-44.5 The Federal Circuit concluded that "after a veteran's death, the

claim is no longer one for disability compensation but rather one for accrued benefits." Id. at 1244.

Regarding standing, the Federal Circuit explained:

The administrative and appellate procedures available to [an accrued-benefits

claimant] on her separate claim ensure that she will not suffer injury by the Court of

Veterans Appeals' decision to deny substitution. Any delay inherent in pursuing her

own claim, when this procedure is established by statute, does not constitute the kind

of actual or threatened injury that confers standing.

Zevalkink, 102 F.3d at 1244. The Federal Circuit rejected the appellant's challenge to the principle

that a claim for service connection does not survive a veteran's death. Id.; see also Haines v. West,

154 F.3d 1298, 1300-02 (Fed. Cir. 1998) (holding that the provision regarding clear and

unmistakable error in section 5109A "cannot be read as providing a procedure for adjudication or

payment of veterans benefits to survivors. The only statutory basis providing such a remedy is

section 5121.").

Subsequently, the Federal Circuit further refined its view of Landicho and Zevalkink and held

that, in certain circumstances, an accrued-benefits claimant may be substituted for the deceased

veteran on the disability benefits claim in order to protect the accrued-benefits claimant's legal

interests. In Padgett, the Federal Circuit distinguished Zevalkink and reversed this Court's denial

of Mrs. Padgett's motion to be substituted on her deceased husband's appeal based on its

determination that she had standing to pursue his claim. 473 F.3d 1364 (Fed. Cir. 2007).

Padgett involved a case where this Court had issued an en banc opinion, reversing a Board decision

and remanding for the assignment of a disability rating and effective date, and the Court was

subsequently informed that the appellant had died more than six months earlier. Despite Zevalkink's

analysis describing the nature of an accrued-benefits claim as being separate from a veteran's

underlying claim for service connection, the Federal Circuit in Padgett found that the

accrued-benefits claimant did have standing to permit substitution on the veteran's claim for service

5

In addition, as noted by this Court's more recent decision in Pekular, the Federal Circuit's decision in Zevalkink

altered the jurisdictional aspect of Landicho because in Zevalkink the Federal Circuit did not conclude that dismissal of

the appeal was the only possible result. Pekular, 21 Vet.App. at 499. The Federal Circuit in Zevalkink noted that this

Court had determined that the accrued-benefits claimant must pursue her claim for accrued benefits separately from her

husband's claim in part because her status as the appropriate claimant had not been adjudicated. The Federal Circuit

stated that this Court "could perhaps remand the question of whether [a person] qualifies as an accrued benefits claimant

to the RO," but the Federal Circuit did not require that this Court grant a limited remand in that case. Zevalkink,

21 Vet.App. at 1244.

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connection, 473 F.3d at 1370, first, concluding that "[t]he continuing relevance and preclusive effect

that the issues decided in Padgett's appeal have for her section 5121(a) claim are sufficient to meet

the 'case or controversy' requirement," id. Second, the Federal Circuit concluded that Mrs. Padgett's

claim for accrued benefits would be "adversely affected" by the Board decision "in the same way

it adversely impacted Padgett's claim at the time he filed his notice of appeal." Id.

The Federal Circuit in Padgett recognized that the issues decided in the veteran's disability

compensation claim were issues related to the accrued-benefits claim. Specifically, the Federal

Circuit stated that failure to give effect to the Court's en banc opinion reversing the Board decision

would be improper because "it would disregard the otherwise final determination of issues relating

to the accrued-benefits claim." Id. at 1369. Again, the Federal Circuit in Padgett emphasized that

substitution of the accrued-benefits claimant on the veteran's appeal and the entry of judgment nunc

pro tunc as of the time of the veteran's death "furthers judicial and administrative economy by not

requiring relitigation and readjudication of issues already decided by the veterans Court." Id. at

1370 (emphasis added). The Federal Circuit thus recognized the similarity in the merits adjudication

of the claims of an accrued-benefits claimant and the underlying claims of the veteran.

Relying on Padgett, this Court in October 2007 issued its decision in Pekular, holding that

substitution is allowed in this Court only if a veteran died after briefing of the case on the merits was

completed. The Court held that the appropriateness of substitution is determined based upon

whether the veteran's case had been "submitted for decision" before the veteran's death. The Court

established a three-part test that must be satisfied to permit substitution and adjudication on the merits

as in Padgett, rather than vacatur and dismissal as in Landicho: "First, the matter must have been

submitted for decision [prior to the appellant's death]. Second, substitution must be appropriate – that

is, the party seeking substitution must have standing. Third, the interests of justice and fairness must

support substitution." Pekular, 21 Vet.App. at 502. If the test is not satisfied, then the Court is to

deny substitution and vacate and dismiss, as in Landicho. The Court in Pekular specifically noted

that "Landicho remains a viable precedent, subject to the test we set forth in this opinion derived

from Padgett." Id. at 501. The Court explained that when faced with a motion for substitution, one

of two routes will be applicable: Either Landicho applies or Padgett applies. Id. The Court further

held that a case "is submitted" to the Court "upon completion of the briefing period, which occurs

when one of the following three events happens: (1) The filing of the appellant's reply brief, (2) the

expiration of the time to file a reply brief, or (3) the filing of a waiver of the right to file a reply

brief." Id. at 505. The Court held that "substitution of an accrued benefits claimant is warranted

only if one of these events occurs prior to the death of the appellant." Id. Applying this test, the

Court determined that Mr. Pekular had died prior to the submission of his case and, therefore, denied

the motion to substitute and dismissed the appeal, pursuant to Landicho. Id.

The next two cases from the Federal Circuit – Hyatt and Phillips – do not directly assist this

Court in addressing the issue whether the Court's continued adherence to Landicho and Zevalkink

is warranted in light of the enactment of section 5121A. See Hyatt v. Shinseki, 566 F.3d 1364, 1370-

71 (Fed. Cir. 2009) (affirming this Court's denial of substitution, where the veteran had died after

the Court had issued a favorable decision but before it had entered judgment, concluding that the

accrued-benefits claimant lacked standing; withdrawal of this Court's merits decision would not

11

adversely affect the accrued-benefits claimant because the decision would not materially assist her

in prosecuting her claim); Phillips, 581 F.3d at 1368 (reversing this Court's judgment in the

consolidated cases, holding that (1) the daughter of Mr. Davis had standing to be substituted for him,

assuming she preserved her rights as an accrued-benefits claimant, because this Court's decision on

the merits of the veteran's claim – remanding based on an erroneous medical examination report–

"remove[d] a significant roadblock" from her path to obtaining accrued benefits, and vacating this

Court's opinion would have an "adverse effect" on her; and (2) both veterans' daughters, subject to

being determined to be proper representatives of the veterans' estates, were entitled to substitution

for purposes of prosecuting their fathers' EAJA claims because "an EAJA claim survives the death

of the veteran, regardless of whether the EAJA application was actually filed by the veteran-claimant

prior to his death.").

2. Impact of Section 5121A on Caselaw

With the enactment of section 5121A, Congress has now, in some critical respects, altered

the previously legislated distinction between a veteran's disability-benefits claim and an

accrued-benefits claim discussed and analyzed by this Court and the Federal Circuit in Landicho and

Zevalkink. By recognizing that an accrued-benefits claimant may pursue the veteran's claim,

Congress has decided to change the distinction that had been gleaned as congressional intent from

the statutory schemes of chapter 11 and chapter 51. Pekular stated that Padgett created two routes

for this Court to follow – (1) follow Landicho and vacate the underlying Board decision, dismiss the

appeal, and the accrued-benefits claim begins anew at VA the adjudication of the merits of the claim

for benefits, or (2) follow Padgett and allow substitution on appeal at the Court. In light of new

section 5121A, there are still two routes, but the first route has become more narrow and the second

route wider. Congress has now indicated that the congressional intent to treat a veteran's claim as

an entirely separate statutory entity from a survivor's accrued-benefits claim no longer exists. Thus,

the essential statutory analysis of Landicho – i.e., the statutory scheme legislated distinctions

between an accrued-benefits claim and a veteran's claim and required a separate adjudicative

proceeding on the accrued-benefits claim to provide the relief sought by an eligible accrued-benefits

claimant – is no longer applicable and Landicho is inconsistent with the now clearly expressed

congressional intent underlying the new legislation. We consequently hold that the Landicho

imperative to dismiss a case pending before this Court, despite the existence of a person who meets

the status requirements of section 5121(a) and is, therefore, eligible to receive accrued benefits, is

now largely inapplicable.

The common foundation for Landicho and Zevalkink and this Court's practice of dismissing

appeals is the doctrine that a veteran's claim dies with the veteran. This foundation has now shifted

with the enactment of section 5121A because a claim for VA benefits no longer necessarily dies

with the veteran. The legislation expressly recognizes that an accrued-benefits claimant, in

appropriate cases, can continue the veteran's claim. By expressly allowing substitution throughout

the administrative process, including the substantive appeal of a veteran's claim within VA,

Congress has largely altered the distinction previously drawn by Landicho and Zevalkink between

the deceased veteran's claim and that of the surviving eligible accrued-benefits claimant. Any

12

remaining distinction has been reduced to the administrative requirement of filing an

accrued-benefits claim and the determination of eligibility for accrued benefits.

3. Elimination of "Zone of No Substitution" on Appeal

We conclude that no rationale now exists for foreclosing the opportunity for substitution on

appeal at this Court based on the timing of the death of the veteran. Our existing practice permits

substitution after the case "was submitted" to the Court – i.e., where the death occurred after the

briefing was completed. With the enactment of section 5121A, Congress legislated the option of

substitution up to the date of the Board decision. The legislation thereby created a potential "zone

of no substitution" for eligible accrued-benefits claimants who wished to substitute themselves for

the deceased veteran where the veteran had died after issuance of the Board decision but before the

expiration of the time for filing a reply brief in this Court. If this Court continued to follow Pekular

subsequent to the enactment of this legislation, we would be denying substitution where veterans

had died during this window of time. This "zone of no substitution" between issuance of the Board

decision and "submission" of the case would be based on no rational distinction because, as

Congress has indicated in enacting section 5121A, the veteran's disability benefits claim does not

die with the veteran and the accrued-benefits claim by a survivor no longer represents a separate

interest that must be separately pursued apart from the veteran's underlying claim for benefits.

With the enactment of section 5121A, the circumstances considered in Landicho, Zevalkink,

and Pekular have changed. To continue to apply those cases in dismissing appeals at the Court even

though there is an eligible accrued-benefits claimant, based solely on incomplete briefing on appeal,

would be inconsistent with a statutory analysis which now includes the recently enacted substitution

statute. Congress enacted the substitution statute, section 5121A, to address the concern of delay,

unfairness, and inefficiency. See Appendix at 166 (H.R. Rep. No. 110-789, at 17 (July 29, 2008)

(Committee on Veterans' Affairs report to accompany H.R. 5892). To continue to bar substitution

in this Court because a veteran died too early (before his final brief was filed) or too late (after the

issuance of the Board decision) and thereby require eligible survivors to begin an entirely new

proceeding at VA to adjudicate the essence of the same claim already before the Court is

inconsistent with the change in the legislative scheme. The change to the VA administrative process

is within congressional prerogatives. And, while not applicable to the Court, logic now dictates a

different approach by the Court subsequent to the passage of the new legislation.

Therefore, we now hold that, based on the enactment of section 5121A, a veteran's chapter

11 disability benefits claim survives the death of the veteran, not for the purpose of providing VA

benefits to a veteran, but for the purpose of furthering the claim of an eligible accrued-benefits

claimant. Since Congress has now created an avenue for an accrued-benefits claimant to continue

to pursue a veteran's claim within VA after the veteran's death, the Court henceforth will consider

substitution, if requested, in all cases pending before the Court regardless of the stage of briefing at

the time of a veteran's death. An eligible accrued-benefits claimant is "adversely affected" by the

appealed Board decision denying a veteran's claim for benefits and has standing to pursue

substitution on the veteran's claim because he or she is affected by the VA adjudications on the

veteran's claim in the same way the veteran was affected at the time he filed his Notice of Appeal.

13

38 U.S.C. § 7266(a) ("In order to obtain review by [this Court] of a final decision of the Board . . . ,

a person adversely affected by such decision shall file a notice of appeal . . . .").

To be clear, the adverse effect of a Board decision can be removed by applying the remedy

established in Landicho, supra; i.e., by vacating the Board decision and dismissing the appeal.

When such action is taken, the accrued-benefits claimant may have his or her claim processed de

novo, without any preclusive effect from the previous Board decision, now vacated. Thus, an

accrued-benefits claimant has two options. One option is to request substitution and thus to carry

on the appeal of a deceased veteran through the judicial process – and now without the "zone of no

substitution." The other is, by not requesting substitution, to permit the Board decision on a

deceased veteran's claim to be vacated, and to pursue the accrued-benefits claim anew.

If substitution is sought in this Court, it remains within the Court's discretion to permit

substitution. The Court must first obtain from the Secretary a determination as to whether a

particular movant is an eligible accrued-benefits claimant. This is a factual determination that,

unless conceded by the Secretary on appeal, must be made by VA in the first instance. Those who

are eligible to make a claim for accrued benefits are determined in accordance with section 5121.

This Court may remand the question of whether a person qualifies as an accrued benefits claimant,

stay the appeal until a determination by VA is made, or direct the Secretary to inform the Court of

his determination within a set period of time. See Zevalkink, 21 Vet.App. at 1244. If the

accrued-benefits status of a person seeking substitution legitimately is in dispute, the Court may take

any of the actions noted above, or deny substitution, vacating the Board decision and dismissing the

appeal. This is because the granting of substitution is based not only on the interest of the potential

accrued-benefits beneficiary in the outcome of the veteran's appeal, but also on considerations of

delay, unfairness, and inefficiency, and those considerations may weigh in favor of letting the

accrued-benefits claim be adjudicated below de novo. As noted in Landicho, Zevelkink, and

Padgett, there is no prejudice in such action, as there is no judicial decision to preserve. Finally,

when accrued-benefits status is established by decision below or concession by the Secretary,

standing is established, and substitution generally will be permitted, subject, as always, to judicial

decision that it is the appropriate course of action in that particular case. See U.S. VET.APP. R. 43

(a) (providing that, after Notice of Appeal has been filed and upon death of a party, substitution may

be granted "to the extent permitted by law"); see also Padgett, 473 F.3d at 1370-71 (noting the

court's consideration of justice and fairness to the parties) (citing Mitchell v. Overman, 103 U.S. 62,

64-66 (1880)).

We note that if, when a veteran has died while an appeal is pending here, no one seeks

substitution or the person seeking substitution is not an eligible accrued-benefits claimant, then

Board vacatur and dismissal of the appeal would be the appropriate action. See Munsingwear,

340 U.S. 36, 41 (1950); see Padgett, 473 F.3d at 1370 ("Absent substitution, we would face the

scenario contemplated by Munsingwear."); see also 38 U.S.C. § 5121(c)("Applications for accrued

14

benefits must be filed within one year after the date of death.").6 This preserves the right of an

accrued-benefits claimant to file a claim and have it processed de novo.

D. Application in This Appeal

As noted above, in this case the Secretary responded to our order, informing us that the

ROIC recently determined that Mrs. Brenda Breedlove has been recognized by VA as the appellant's

widow for any accrued benefits to which she may be entitled. We conclude that because Brenda

Breedlove is an eligible accrued-benefits claimant who is adversely affected by the September 9,

2008, Board decision denying Mr. Breedlove's claim for section 1151 benefits, she has standing to

pursue substitution on the veteran's claim. She is affected by the VA adjudications on the veteran's

claim in the same way the veteran was affected at the time he filed his Notice of Appeal, and

considerations of delay, unfairness, and inefficiency weigh in favor of granting substitution.

Upon consideration of the foregoing, it is

ORDERED that the movant's August 14, 2009, motion for substitution is granted. It is

further

ORDERED that the Clerk of the Court shall change the caption of this case to reflect that

Brenda Breedlove is now the appellant. It is further

ORDERED that the appellant, not later than 60 days after the date of this order, file her

principal brief.

DATED: August 10, 2010 PER CURIAM.

KASOLD, Chief Judge, concurring: I agree that enactment of 38 U.S.C. § 5121A creates

a "zone of no substitution" that warrants the revaluation of our existing substitution requirements

and elimination of the strict substitution criteria established in Pekular that today's opinion reflects.

I do not agree, however, with much of the discussion in the majority's opinion under section C., ante

at 8 (Substitution in Appeals Before the Court).

Succinctly stated, section 5121A reflects not an alteration by Congress of any statutory

distinction between the veteran's disability compensation claim and an accrued benefits claim; that

distinction remains: One is the veteran's claim for benefits, with the attendant duty to assist that

includes gathering evidence, etc., while the other is an accrued-benefits beneficiary's claim for

benefits, with a much more limited duty to assist and an adjudication that is based on the record as

6

The Court notes that even if an eligible accrued-benefits claimant is known at the time of the death of the

veteran, which occurs while on appeal here, such claimant may inform the Court that he or she wishes to begin her

accrued benefits claim at VA and forego the continuation of the veteran's appeal. Under such circumstances, the Court

would also dismiss the appeal and vacate the underlying VA decisions on the veteran's claim.

15

it existed at the time of the veteran's death. Compare Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed.

Cir. 2010) ("VA is required to 'make reasonable efforts to obtain relevant records (including private

records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to

obtain'" (citing 38 U.S.C. § 5103A(b)(1))), with Ralston v. West, 13 Vet.App. 108, 113 (1999)

("[E]ntitlement to accrued benefits must be determined based on evidence that was either physically

or constructively in the veteran's file at the time of death."). Rather, by directing the Secretary to

write regulations permitting substitution below, Congress simply is recognizing that the

accrued-benefits claim is derivative of the veteran's claim and that automatic refusal by the Secretary

to permit substitution was causing an unwarranted delay in the adjudication of many

accrued-benefits claims. See Zevalkink, 102 F.3d at 1241 ("[A]n accrued benefits claim is derivative

of the veteran's claim for service connection, i.e., the claimant's entitlement is based on the veteran's

entitlement."); Padgett v. Nicholson, 473 F.3d 1364, 1369 (Fed. Cir. 2007) ("[A]n accrued-benefits

claim 'incorporates any prior adjudications of the service-connection issue on claims brought by the

veteran, because it derives from the veteran's service-connection claim.'"); see also Padgett v. Peake,

18 Vet.App. 188, 201 (2004) (Kasold, J., dissenting).

There may be good reason for a claimant to seek substitution in a deceased veteran's claim,

or, alternatively, to begin anew with the vacatur of an adjudication on the veteran's claim and the

filing of a new claim; e.g., a new claim is entitled to two de novo decisions below. Disabled Am.

Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1353-54 (Fed. Cir. 2003) (holding that the

two-administrative-review requirement generally necessitates remand by the Board for a new, initial

decision when new evidence is submitted to the Board, absent waiver by the claimant). Although

the full scope of the Secretary's regulations remains to be seen, I agree that they can have no effect

on our jurisdiction and I fully concur that the "zone of no substitution" created by enactment of

section 5121A warrants the dismantling of rigid and limiting substitution criteria on appeals to the

Court.

16