Case: 21-1383 Document: 33 Page: 1 Filed: 12/13/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEFFREY E. AKARD,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1383
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6262, Judge Michael P. Allen.
______________________
Decided: December 13, 2021
______________________
JEFFREY E. AKARD, New Castle, IN, pro se.
MARIANA TERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
LOREN MISHA PREHEIM; AMANDA BLACKMON, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Case: 21-1383 Document: 33 Page: 2 Filed: 12/13/2021
2 AKARD v. MCDONOUGH
Before PROST, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
In 2013 and 2015, Jeffrey E. Akard, a veteran of the
U.S. Army, requested that the Department of Veterans Af-
fairs (VA) pay to his father the disability benefits being
withheld from Mr. Akard during his incarceration. The rel-
evant VA regional office (RO) denied his request for want
of evidence that Mr. Akard’s father was a dependent parent
eligible for such “apportionment.” Mr. Akard appealed to
the Board of Veterans’ Appeals, and the Board dismissed
the appeal on the ground that he (unlike his father, who
did not appeal) lacked a personal stake in the RO’s appor-
tionment ruling and so lacked standing to appeal the ruling
to the Board. The Court of Appeals for Veterans Claims
(Veterans Court) affirmed the Board’s decision. Akard v.
Wilkie, No. 19-6262,
2020 WL 5200711 (Vet. App. Aug. 27,
2020); Supplemental Appendix (SAppx.) 1–3. Mr. Akard
appeals. We affirm.
I
In 1999, VA awarded Mr. Akard disability compensa-
tion based on what it found were service-connected low-
back and right-shoulder conditions, for which VA assigned
him a combined disability rating of 30%. Mr. Akard was
later incarcerated after being convicted of several felonies.
In April 2009, VA learned of Mr. Akard’s incarceration and
proposed reducing his benefit payments from 30% to 10%,
as authorized by statute,
38 U.S.C. § 5313, and by regula-
tion, see
38 C.F.R. § 3.665(a) (providing that compensation
payable to veterans incarcerated for more than 60 days is
limited according to
38 C.F.R. § 3.665(d));
id. § 3.665(d)
(limiting the compensation payable to an incarcerated vet-
eran with an evaluation of at least 20% to the rate under
38 U.S.C. § 1114(a), equal to a 10% rating). VA imple-
mented the reduction in June 2009, and Mr. Akard does
not contest the reduction.
Case: 21-1383 Document: 33 Page: 3 Filed: 12/13/2021
AKARD v. MCDONOUGH 3
In both 2013 and 2015, Mr. Akard requested that his
withheld benefits—the difference between the 30%
awarded and the 10% paid during incarceration—be paid
to his father, who, Mr. Akard explained, became disabled
in August 2009. SAppx. 8–9. The VA’s “apportionment”
regulation allows for some or all of the compensation not
paid to an incarcerated veteran to be “apportioned” to a “de-
pendent parent[]” on the basis of individual need. See
38
C.F.R. § 3.665(e)(1). The RO “accepted an apportionment
claim from [Mr. Akard] on behalf of his father.” SAppx 5.
In April 2017, the RO, seeking to determine eligibility,
asked that Mr. Akard’s father complete a dependency form,
VA Form 21P-509, see SAppx. 7, and there is no dispute
here about the adequacy of notice to Mr. Akard’s father of
that request. Mr. Akard’s father did not respond, and the
RO denied Mr. Akard’s apportionment request in May
2017, finding insufficient evidence of his father’s eligibility.
Id.
Mr. Akard filed a notice of disagreement, which the RO
accepted for filing. Id. at 5. Whether by that filing or a
separate appeal, Mr. Akard appealed the denial of appor-
tionment to the Board. 1 Mr. Akard’s father did not appeal.
Indeed, in his brief in the Veterans Court, the Secretary
stated that the RO failed to give Mr. Akard’s father the re-
quired notice of the May 2017 denial at the time, providing
that notice only in a June 2020 letter that informed Mr.
1 Congress made various changes in appeal proce-
dures in the Veterans Appeals Improvement and Moderni-
zation Act of 2017 (“AMA”), Pub. L. No. 115-55,
131 Stat.
1105. The parties have not specified whether Mr. Akard’s
appeal to the Board proceeded under the pre-AMA or post-
AMA version of
38 U.S.C. § 7105, one difference being that
a formal appeal followed the notice of disagreement under
the older version whereas no such separate formal appeal
is required under the current version.
Case: 21-1383 Document: 33 Page: 4 Filed: 12/13/2021
4 AKARD v. MCDONOUGH
Akard’s father of his still-live right to appeal. Sec’y Br. at
7, Akard,
2020 WL 5200711 (19-6262).
The Board dismissed Mr. Akard’s appeal in June 2019,
citing
38 U.S.C. § 7108’s directive that “[a]n application for
review on appeal shall not be entertained unless it is in
conformity with this chapter [
38 U.S.C. §§ 7101–7113].”
38
U.S.C. § 7108; see SAppx. 4–5 (citing statute). The Board
reasoned that Mr. Akard did not have “standing” to appeal
the denial of apportionment to his father. Id. at 5. To have
standing to appeal a denial of apportionment, the Board
said, an appellant must have a “‘personal stake in the out-
come of the controversy.’” Id. (citing Redding v. West,
13
Vet. App. 512, 514 (2000) (citing Baker v. Carr,
369 U.S.
186, 204 (1962))). Here, the Board concluded, Mr. Akard
did not show such a stake. The Board explained that an
apportionment award “is an entity which is legally sepa-
rate from [the veteran’s] benefits”; incarcerated veterans
typically lack a “personal stake” in the benefits that have
been properly withdrawn from them (as is undisputed
here); and it is only such duly withdrawn benefits that are
at issue in a request for apportionment to a dependent.
Id.
(citing Belton v. Principi,
17 Vet. App. 209, 211–12 (2003)
and Ferenc v. Nicholson,
20 Vet. App. 58, 64 (2006)). The
Board also found that there was no indication that Mr.
Akard was his father’s legal guardian, that Mr. Akard’s fa-
ther was his dependent, or that Mr. Akard was adversely
affected by the denial of apportionment.
Id. For those rea-
sons, the Board dismissed Mr. Akard’s appeal.
Id.
Mr. Akard appealed to the Veterans Court. The Veter-
ans Court affirmed the Board’s dismissal of the appeal on
August 27, 2020, agreeing with the Board that Mr. Akard
“lacked a ‘personal stake’ in the decision to deny apportion-
ment of benefits to his father.” Akard,
2020 WL 5200711,
at *1–2. While observing that Article III itself does not ap-
ply to administrative bodies such as the Board,
id. at *1
n.14, the Veterans Court ruled that the Board had properly
identified the “key concept” defining why Mr. Akard had no
Case: 21-1383 Document: 33 Page: 5 Filed: 12/13/2021
AKARD v. MCDONOUGH 5
right to appeal from the RO to the Board here: that he
lacked a “personal stake” in whether his father received, as
an apportionment, any part of the disability benefits that
had been properly withdrawn from Mr. Akard.
Id. The
Veterans Court determined that Belton and Ferenc, cited
by the Board, were dispositive in determining that Mr.
Akard could not appeal the VA’s apportionment denial to
the Board. Id. at *2. Rather, only Mr. Akard’s father could
contest the VA’s denial of apportionment. Id. 2
Mr. Akard timely appealed to this court.
II
This court’s jurisdiction to review decisions of the Vet-
erans Court, defined by
38 U.S.C. § 7292, is limited. We
have jurisdiction to decide an appeal insofar as it presents
a challenge to a Veterans Court’s decision regarding a rule
of law, including a decision about the interpretation or va-
lidity of any statute or regulation.
Id. § 7292(a), (d)(1). We
do not have jurisdiction to review a challenge to a factual
determination or a challenge to the application of a law or
regulation to the facts of a particular case, except to the
extent that an appeal presents a constitutional issue,
which this appeal does not. See
38 U.S.C. § 7292(d)(2).
We liberally construe Mr. Akard’s appeal to this court
as suggesting a legal error in the Veterans Court’s conclu-
sion that, with exceptions not found applicable here, a vet-
eran has no sufficient stake in securing apportionment to
another (of disability benefits properly withdrawn from the
veteran) to permit the veteran to appeal an RO
2 The papers before us do not indicate whether Mr.
Akard’s father has pursued an appeal to the Board after
receiving the June 2020 notice of the May 2017 RO appor-
tionment denial.
Case: 21-1383 Document: 33 Page: 6 Filed: 12/13/2021
6 AKARD v. MCDONOUGH
apportionment denial to the Board. We see no legal error
in that ruling.
The regulation governing reduction of benefits when a
veteran is incarcerated, and providing for apportionment
in such circumstances, refers to “the rights of the person’s
dependents to an apportionment while the person is incar-
cerated” and to the VA’s duty to “notify the person’s depend-
ents of their right to an apportionment.”
38 C.F.R.
§ 3.665(a) (emphasis added). The regulatory language, on
its face and sensibly understood, supports the Veterans
Court’s recognition, in this case and in the earlier cases
deemed dispositive here, that the apportionment right be-
longs to the potential recipient, not to the veteran. See
Ferenc v. Nicholson,
20 Vet. App. 58, 63–64 (2006); Belton
v. Principi,
17 Vet. App. 209, 211–12 (2003); see also
Batcher v. Wilkie,
975 F.3d 1333, 1338 (Fed. Cir. 2020)
(quoting Belton, 17 Vet. App. at 211) (“‘[W]hen veterans’
dependents file on their own behalf for an apportionment,
they seek to exercise their right to an apportionment.’”).
Ferenc and Belton are different from this case in one
respect: they involved appeals to the Veterans Court, rather
than (as here) an appeal to the Board. The Veterans Court
has adopted standing requirements of Article III of the U.S.
Constitution, see Hyatt v. Shinseki,
566 F.3d 1364, 1367
(Fed. Cir. 2009), and a “personal stake” is generally an Ar-
ticle III requirement, see Military-Veterans Advocacy v.
Sec’y of Veterans Affairs,
7 F.4th 1110, 1121 (Fed. Cir.
2021). In contrast, as the Veterans Court stated in the pre-
sent case, “Article III standing requirements don’t apply to
administrative bodies such as the Board.” Akard,
2020 WL
5200711, at *1 n.14.
Mr. Akard has not shown, however, that the just-noted
distinction makes a difference to the non-appealability de-
termination in this case. Article III is not the only source
of limitation on appeal rights. As a statutory matter, an
appeal to the Board must be initiated by the “claimant”—
Case: 21-1383 Document: 33 Page: 7 Filed: 12/13/2021
AKARD v. MCDONOUGH 7
or “the claimant’s legal guardian, or such accredited repre-
sentative, attorney, or authorized agent as may be selected
by the claimant or legal guardian.”
38 U.S.C. § 7105(b)(2)
(same in pre- and post-AMA versions). The ordinary mean-
ing of “claimant” under that statutory provision does not
encompass any person who files a claim but, rather, refers
to the person who would receive the benefit if granted; oth-
erwise, the specific statutory list of non-claimants who may
appeal would make little if any sense. 3 Under that reading,
3 We have seen nothing in VA regulations adopting
a contrary interpretation. Before VA adopted regulations
in 2019 to implement the AMA, the regulation on “[w]ho
can file an appeal” to the Board was similar to the statute,
limiting the right to “a claimant personally, or . . . his or
her representative if a proper Power of Attorney or decla-
ration of representation, as applicable, is on record or ac-
companies” the filing.
38 C.F.R. § 20.301(a) (pre-AMA
regulation). The post-AMA regulations moved that provi-
sion to
38 C.F.R. § 19.50(a) (post-AMA regulation), without
material change. See VA Claims and Appeals Moderniza-
tion,
84 Fed. Reg. 138, 177 (Jan. 18, 2019) (Final Rule).
Certain definitional regulations are consistent with ty-
ing the claim to the filer’s own entitlement. A pre-AMA
definitional regulation in Part 20, concerning the Board,
defined “claimant” as “a person who has filed a claim,”
38
C.F.R. § 20.3(g), and “claim” as an “application . . . for enti-
tlement to . . . benefits,”
38 C.F.R. § 20.3(f) (pre-AMA reg-
ulation), while a definitional regulation in Part 3,
concerning Adjudication generally, said: “Claim―Applica-
tion means a formal or informal communication in writing
requesting a determination of entitlement or evidencing a
belief in entitlement, to a benefit,”
38 C.F.R. § 3.1(p). The
post-AMA regulations conformed the Part 20 definition to
the Part 3 definition.
38 C.F.R. § 20.3(g) (post-AMA ver-
sion) (claimant is one who files “claim” as defined);
id.
§ 20.3(f) (post-AMA version) (claim is request for
Case: 21-1383 Document: 33 Page: 8 Filed: 12/13/2021
8 AKARD v. MCDONOUGH
the statute limits an appeal of an apportionment denial to
the person who would receive the apportionment and the
short list of statutorily authorized stand-ins for that per-
son—so that the veteran cannot initiate an appeal to the
Board from a denial of an apportionment claim unless the
veteran qualifies as one of the few people (such as a legal
guardian) allowed to do so on behalf of the potential appor-
tionment recipient. See Redding, 13 Vet. App. at 514–15
(discussing
38 U.S.C. § 7105(b)(2)), relied on in Belton, 17
Vet. App. at 211–12.
It is on that legal conclusion that we think the Veterans
Court’s ruling in this case, affirming the Board’s ruling,
should be understood to rest. The Board expressly relied
on the failure of Mr. Akard to meet the appeal require-
ments of
38 U.S.C. §§ 7101–13. SAppx. 4–5. To support its
determination, the Board found that there was no indica-
tion that Mr. Akard was his father’s legal guardian. Id. at
5. The Veterans Court affirmed the Board’s decision. Alt-
hough the Veterans Court used “personal stake” language,
we read that language, in the context of the Veterans
Court’s specific recognition that Article III is not applicable
to the Board, simply as part of its adoption of the essential
premise, established in the cited Ferenc and Belton, about
who has the apportionment right—namely, the potential
recipient, not the veteran. Once that premise is estab-
lished, the statutory limitations on who may appeal to the
Board barred Mr. Akard’s appeal.
determination of “entitlement[] to a specific benefit”); see
VA Claims and Appeals Modernization,
83 Fed. Reg.
39,818, 39,831 (Aug. 10, 2018) (Proposed Rule) (“VA pro-
poses minor edits to § 20.3 Definitions, to remove terms
that are no longer used in part 20, or are defined elsewhere
in the part. VA also proposes to adopt the definition of
‘claim’ used in part 3 of this title.”); Final Rule, 84 Fed. Reg.
at 179.
Case: 21-1383 Document: 33 Page: 9 Filed: 12/13/2021
AKARD v. MCDONOUGH 9
We do not understand Mr. Akard to contend that he
was the legal guardian of his father or that he played any
of the other roles identified in the statute as permitting
non-claimant appeals to the Board. He has not presented
to us a question about such matters that would come within
our jurisdiction, from which fact-specific questions are ex-
cluded (where, as here, no constitutional issue is raised).
We have also considered Mr. Akard’s references to
38
C.F.R. § 3.451 and
38 C.F.R. § 3.665(e)(1), but we do not see
in those references any issue that is within our jurisdiction
and affects the resolution of the decisive issue of appeala-
bility to the Board.
III
For the foregoing reasons, the decision of the Veterans
Court is affirmed.
The parties shall bear their own costs.
AFFIRMED
