Case: 21-2030 Document: 40 Page: 1 Filed: 03/16/2023
United States Court of Appeals
for the Federal Circuit
______________________
YVONNE CREWS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2030
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6298, Judge Joseph L. Falvey,
Jr.
______________________
Decided: March 16, 2023
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN
MISHA PREHEIM; Y. KEN LEE, DEREK SCADDEN, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 21-2030 Document: 40 Page: 2 Filed: 03/16/2023
2 CREWS v. MCDONOUGH
Before REYNA, MAYER, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Yvonne Crews appeals the final decision of the United
States Court of Appeals for Veterans Claims denying her
request to be substituted under 38 U.S.C. § 5121A as the
claimant in place of her deceased spouse. Because we con-
clude that her allegation of a clear and unmistakable error
is not part of a “pending” claim for which she could substi-
tute under § 5121A, we affirm.
I
The veteran, Sylvester D. Crews, served in the U.S. Air
Force from March 1954 to September 1958. In connection
with his service, Mr. Crews was originally granted a 100%
disability rating for schizophrenia. But in November 1960,
his disability rating was lowered to 70%.
In December 2006, Mr. Crews filed a new claim for an
increased schizophrenia rating, which the Regional Office
denied in May 2007. In September 2009, Mrs. Crews—on
behalf of her husband—submitted a letter stating that Mr.
Crews was 100% disabled and requested further evalua-
tion. The letter made no mention of an effective date for the
requested 100% rating. The Regional Office responded that
it would not consider the letter to be a notice of disagree-
ment with the May 2007 decision because it was filed more
than one year after the May 2007 decision. Instead, the Re-
gional Office construed the letter as a new “claim for an
increased rating.” J.A. 2. In March 2010, the Regional Of-
fice granted the new claim and increased his schizophrenia
rating from 70% to 100% effective from September 29,
2009. Unfortunately, in October 2010, Mr. Crews passed
away.
In March 2011, Mrs. Crews, Mr. Crews’ surviving
spouse, moved to be substituted as the appellant and filed
a notice of disagreement with the September 2009 effective
Case: 21-2030 Document: 40 Page: 3 Filed: 03/16/2023
CREWS v. MCDONOUGH 3
date. The basis for challenging the effective date was an
allegation of clear and unmistakable error (CUE) in the No-
vember 1960 rating decision that terminated the 100%
schizophrenia rating.
In January 2012, the Regional Office rejected her re-
quest for substitution because Mr. Crews had no claim or
notice of disagreement pending at the time of his death.
Mrs. Crews filed a notice of disagreement with that deci-
sion, but the Regional Office issued a statement of the case
continuing to deny the substitution request because Mrs.
Crews was not eligible to seek benefits on past decisions
that had been finalized, and the November 1960 rating de-
cision became final once the appeal window closed.
Mrs. Crews appealed to the Board. In December 2014,
the Board granted her motion for substitution, but deter-
mined that it lacked jurisdiction over the CUE claim be-
cause the Regional Office had not adjudicated the issue and
remanded the case to the Regional Office. In March 2015,
the Regional Office issued a statement of the case continu-
ing to deny an effective date earlier than September 2009—
the date Mr. Crews had filed the new increased rating
claim. The Board agreed and issued a final decision stating
that “a CUE motion cannot be filed by a survivor seeking
accrued benefits if no CUE motion was pending at the time
of the Veteran’s death.” J.A. 120. The Veterans Court af-
firmed. Mrs. Crews appeals.
II
Mrs. Crews argues that the Veterans Court misinter-
preted § 5121A in denying her request to substitute as a
CUE claimant because there was a claim pending at the
time of Mr. Crews’ death within the meaning of § 5121A.
Under
38 U.S.C. § 7292(a) and (c), we have jurisdiction to
review the Veterans Court’s interpretation of the statute.
We review the Veterans Court’s interpretation of law de
novo. Bazalo v. West,
150 F.3d 1380, 1382 (Fed. Cir. 1998).
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4 CREWS v. MCDONOUGH
As a general rule, when a veteran dies, the veteran’s
claim for benefits also terminates. Phillips v. Shinseki,
581
F.3d 1358, 1363 (Fed. Cir. 2009). Even so, a surviving
spouse is entitled to be paid any accrued benefits following
the veteran’s death.
38 U.S.C. § 5121(a) (providing the vet-
eran’s spouse “monetary benefits . . . to which an individual
was entitled at death . . . [that are] due and unpaid . . .
upon the death of such individual” (emphasis added)). Prior
to 2008, the surviving spouse could, with limited excep-
tions, pursue those claims only by restarting from the be-
ginning and filing a new accrued benefits claim. See
Phillips,
581 F.3d at 1363–64 (citing Zevalkink v. Brown,
102 F.3d 1236, 1243 (Fed. Cir. 1996) (providing the general
rule that substitution was not appropriate)); but see
Padgett v. Nicholson,
473 F.3d 1364, 1368–71 (Fed. Cir.
2007) (acknowledging an exception for an accrued benefits
claimant to receive nunc pro tunc relief following a vet-
eran’s death). But in 2008, to remedy the inefficiencies and
delays from restarting the process, Congress enacted
§ 5121A to allow a surviving spouse to be substituted as a
claimant in place of a deceased veteran.
Section 5121A reads:
If a claimant dies while a claim for any ben-
efit under a law administered by the Secre-
tary, or an appeal of a decision with respect
to such a claim, is pending, [a surviving
spouse] 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 (emphases added). This provision now
allows a surviving spouse (or other accrued benefits claim-
ant) to be substituted rather than file a new accrued bene-
fits claim. Rusick v. Gibson,
760 F.3d 1342, 1346–47 (Fed.
Cir. 2014).
Case: 21-2030 Document: 40 Page: 5 Filed: 03/16/2023
CREWS v. MCDONOUGH 5
On its face, the statute limits the scope of substitution
to “pending” claims “for the purposes of processing the
claim[s] to completion.” 38 U.S.C. § 5121A. And, as we have
explained, because § 5121A was intended to “address the
problem of survivors who were . . . forced to ‘restart the
claim at the back of the line[,]’. . .” it did not create a mech-
anism for a surviving spouse to file a new claim. Rusick,
760 F.3d at 1346–47 (“If a veteran had never filed a claim,
however, there would be nothing to ‘restart,’ and the per-
ceived injustice Congress sought to remedy . . . would not
exist.”).
The import of § 5121A is that Mrs. Crews was entitled
to be “substituted as the claimant for the purposes of pro-
cessing the [pending] claim to completion.” 38 U.S.C.
§ 5121A (emphasis added). Here, there was only one possi-
ble “pending” claim at the time of Mr. Crews’ death: his
September 2009 claim to increase his disability rating to
100%. Although this claim was granted in March 2010, the
September 2009 claim could still have been considered
“pending” at the time of Mr. Crews’ death in October 2010
because the one-year window to appeal was not set to ex-
pire until March 2011.
Given the statutory language, Mrs. Crews may have
been entitled to substitute on the September 2009 claim to
process that claim to completion. But nothing in § 5121A
allows Mrs. Crews to file a new claim, which is what she
did by alleging CUE in the November 1960 decision and
seeking a new effective date back to that decision. As the
Veterans Court found, “Mr. Crews had never alleged CUE
in the November 1960 decision” before his death. J.A. 7.
Instead, the September 2009 claim was a new, standalone
claim for an increased disability rating and was independ-
ent of the November 1960 decision. Indeed, even if we were
to ignore the Regional Office’s decision to treat it as a new
claim, the September 2009 claim was filed by Mr. Crews as
a challenge to the May 2007 decision—not a challenge to
the November 1960 decision. Like the September 2009
Case: 21-2030 Document: 40 Page: 6 Filed: 03/16/2023
6 CREWS v. MCDONOUGH
claim, the claim that resulted in the May 2007 decision
never alleged CUE in the November 1960 decision. It, too,
was a new, independent claim for an increased disability
rating.
Thus, at most, Mr. Crews’ September 2009 claim stems
from a disagreement with the May 2007 decision. In con-
trast, Mrs. Crews’ allegation of CUE stems from the No-
vember 1960 decision. Because she is challenging a
separate decision that was not challenged by the only pend-
ing claim, Mrs. Crews’ CUE allegation constitutes a new
claim. This new CUE claim is not allowed by the plain lan-
guage of § 5121A.
This conclusion also reflects our previously stated un-
derstanding of § 5121A. In Rusick, we noted that § 5121A
“did not undercut the critical portion of the decision in
Haines [v. West].”
760 F.3d at 1346. In particular, we stated
that:
[e]ven though section 5121A might now allow a
survivor to substitute on a pending CUE claim that
the veteran had filed before his death, Haines still
stands for the proposition that a survivor cannot
initiate a freestanding CUE claim under section
5109A if the veteran had not already filed such a
claim.
Id. (citing Haines v. West,
154 F.3d 1298, 1301 (Fed. Cir.
1998)). The facts here present the same scenario this court
anticipated in Rusick, and we maintain the same view: Sec-
tion 5121A only allows a survivor to substitute as a claim-
ant for a previously raised CUE claim.
Id. It does not allow
a survivor to bring a CUE claim that was not previously
raised.
Id.
Mrs. Crews argues that, rather than being a new claim,
her CUE allegation is merely a new theory of entitlement
in support of the pending September 2009 claim. Appel-
lant’s Br. 7–9 (citing
38 C.F.R. § 3.1010(f)(2)). We disagree.
Case: 21-2030 Document: 40 Page: 7 Filed: 03/16/2023
CREWS v. MCDONOUGH 7
A CUE allegation is a claim for entitlement that must be
tied to an error in some prior decision. See Haines,
154 F.3d
at 1301–02 (stating that the CUE provision, 38 U.S.C.
§ 5109A, “provides nothing more than a procedure for a
claimant to seek reconsideration of a limited type of error
in a prior decision”). Thus, in considering whether
Mrs. Crews’ CUE allegation is part of the pending claim,
we must consider whether the pending claim challenges
the same decision as Mrs. Crews’ CUE claim.
As explained above, Mr. Crews never challenged the
November 1960 decision, either in his September 2009
claim or in his December 2006 claim. At most, the only
prior decision the September 2009 claim can be said to
challenge is the May 2007 decision. In contrast,
Mrs. Crews’ entire basis for CUE depends on the November
1960 decision. Because the September 2009 claim does not
challenge this 1960 decision, Mrs. Crews’ CUE claim can-
not simply be a new theory of entitlement under the pend-
ing September 2009 claim.
III
Because we find that the Veterans Court did not mis-
interpret 38 U.S.C. § 5121A by denying a substituted
claimant from raising a CUE allegation never raised by the
deceased veteran, we affirm.
AFFIRMED
COSTS
No costs.
