Mildred Nolan v. R. James Nicholson ( 2006 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 04-1032
MILDRED NOLAN , APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided August 30, 2006 )
Robert B. Haemer, of Washington, D.C., was on the brief for the appellant.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Richard
Mayerick, Deputy Assistant General Counsel; and Gary O'Connor, all of Washington, D.C., were
on the brief for the appellee.
Before KASOLD, MOORMAN, and SCHOELEN, Judges.
SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring
opinion.
SCHOELEN, Judge: The appellant, Mildred Nolan, through counsel, appealed a May 10,
2004, Board of Veterans' Appeals (Board) decision in which the Board (1) denied entitlement to an
effective date earlier than September 1, 1999, for the payment of accrued benefits and (2) determined
that 38 U.S.C. § 5310 did not allow her to receive additional retroactive benefits totaling the entire
sum of money that her husband, veteran Edward J. Nolan, would have received, but for his death,
during the month of his death. Record (R.) at 1-11. On September 19, 2005, the Secretary filed an
opposed motion to dismiss this appeal, stating that Mrs. Nolan's attorney had informed counsel for
the Secretary that Mrs. Nolan had died. On September 21, 2005, Maureen Gage, acting pro se, filed
an opposed motion to substitute herself for the appellant, stating that she is the daughter of
Mrs. Nolan. This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266. For the following reasons, the Court will deny Mrs. Gage's motion, grant the
Secretary's motion, vacate the Board's decision as to the matter on appeal, and dismiss this appeal.
I. BACKGROUND
A. Mr. Nolan's Claims
Veteran Edward J. Nolan served on active duty in the U.S. Army from February 1942 to
December 1945. R. at 17. Service medical records indicate that while serving in Belgium in
September 1944, Mr. Nolan suffered a through-and-through gunshot wound in the right shoulder as
a result of enemy action. R. at 40.
In March 1949, Mr. Nolan submitted an application for disability compensation benefits for,
among other things, a right shoulder wound. R. at 58-61. In a September 19, 1949, decision, a VA
regional office (RO) granted service connection for "perforating, gunshot wounds r[igh]t shoulder
and r[igh]t back," effective March 29, 1949. R. at 73. He was assigned a 10% disability rating under
Diagnostic Code (DC) 5304. Id. In December 1949, November 1987, and November 1999
decisions, the RO determined that no increase in his 10% rating was warranted. R. at 87, 115, 120-
22.
In a December 1999 letter, Mr. Nolan requested that the September 19, 1949, RO decision
be revised on the basis of clear and unmistakable error (CUE). R. at 124-25. He specifically argued
that, because his gunshot wound was a through-and-through wound, he was entitled to a 20%
disability rating under DC 5303 based on an injury to Muscle Group (MG) III, in addition to the 10%
disability rating awarded under DC 5304 based on an injury to MG IV. Id. A May 2000 RO
decision found no CUE in the September 1949 RO decision. R. at 131-46. However, the RO
increased his rating for the residuals of a gunshot wound to 20%, effective July 22, 1999, based on
limitation of motion of the shoulder. Id. Mr. Nolan appealed this decision to the Board. R. at 150,
174.
An August 27, 2001, letter from a private doctor indicated that Mr. Nolan had been recently
diagnosed with myelodysplastic syndrome, a terminal illness. R. at 192. On September 5, 2001,
Maureen Gage, faxed that letter to the Board and asked that it be considered "as a Motion to
Advance on the Docket for my father, Edward J. Nolan." R. at 209. On September 10, 2001, a
2
Deputy Vice Chairman of the Board granted the motion to advance the appeal on the Board's docket.
R. at 214. Mr. Nolan died on September 10, 2001. R. at 225.
On September 28, 2001, presumably acting without knowledge of Mr. Nolan's death, the
Board issued a decision concluding that the September 1949 RO decision was clearly and
unmistakably erroneous. R. at 216-22. The Board determined that the medical evidence before the
RO in September 1949 showed injury to both MG III and MG IV, and that a single 30% disability
rating should have been awarded under DC 5303, based on moderately severe injury to MG III in
the dominant arm. R. at 221. Accordingly, the Board awarded a 30% rating under DC 5303,
effective March 29, 1949. R. at 222.
After learning of Mr. Nolan's death, the Board issued a decision on February 21, 2002,
vacating the September 28, 2001, decision. R. at 252-53. The Board concluded that after
Mr. Nolan's death on September 10, 2001, it had been deprived of jurisdiction over his claim. Id.The Board issued a second decision on February 21, 2002, dismissing Mr. Nolan's appeal for lack
of jurisdiction. R. at 247-49.
B. Mrs. Nolan's Claims
In October 2001, Mildred Nolan, Mr. Nolan's surviving spouse, filed an application for
dependency and indemnity compensation (DIC) benefits, death pension benefits, and accrued
benefits. R. at 228-32. In January 2002, the RO issued a decision denying entitlement to accrued
benefits and DIC benefits. R. at 237-42. With regard to accrued benefits, the RO stated that
Mr. Nolan was not entitled to any additional benefits at the time of his death and that the September
28, 2001, Board decision was a nullity, and, therefore, did not provide a basis for an award of
accrued benefits.1 R. at 238-39. With regard to DIC benefits, the RO determined that the cause of
Mr. Nolan's death was not related to military service. R. at 239-40. Mrs. Nolan filed a Notice of
Disagreement as to this decision and requested review by a decision review officer. R. at 244.
A March 2002 RO decision determined that there was CUE in the September 1949 RO
decision on Mr. Nolan's claim. R. at 257-63. The RO's decision was essentially in accord with the
now-vacated September 28, 2001, Board decision finding CUE in the September 1949 RO decision.
1
At the time of the initial RO decision in January 2002 on Mrs. Nolan's application for DIC, death pension, and
accrued benefits, the Board had not yet vacated its September 28, 2001, decision.
3
Compare R. at 257-58 (March 2002 RO decision) with R. at 216-22 (September 2001 Board
decision). The RO awarded a 30% disability rating for residuals of a gunshot wound to the right
shoulder under DC 5303, effective March 29, 1949. R. at 262. The RO also awarded entitlement
to a total disability rating based on individual unemployability (TDIU), effective December 13, 1999.
R. at 259-60, 262. Based on this decision, the RO awarded Mrs. Nolan accrued benefits. R. at 262.
The RO limited the award of accrued benefits to the two years prior to Mr. Nolan's death
(September 1, 1999, through August 31, 2001). Id.
Mrs. Nolan requested a Statement of the Case (SOC) regarding her DIC claim and requested
that accrued benefits be awarded back to September 1949. R. at 271, 285. In August 2002, the RO
issued an SOC denying accrued benefits for the period prior to September 1, 1999. R. at 288-95.
Also in August 2002, the RO issued a decision awarding service connection for the cause of
Mr. Nolan's death and awarding DIC benefits to Mrs. Nolan. R. at 297-99.
In October 2002, Mrs. Nolan filed a Substantive Appeal to the Board seeking accrued
benefits for the period dating back to September 1949. R. at 311-12. Mrs. Nolan, through attorney
Robert B. Haemer, requested a hearing before the Board and presented four written arguments. R.
at 319-28. First, Mrs. Nolan argued that 38 U.S.C. § 5310(a), which provides for the payment of
benefits to a surviving spouse for the month of the death of a veteran, allowed for the full payment
to Mrs. Nolan of the retroactive benefits Mr. Nolan was entitled to at the time of his death, rather
than the two years provided for in 38 U.S.C. § 5121(a). R. at 323-24. Her theory underlying this
argument was that, but for Mr. Nolan's death, he would have been paid the full retroactive award in
September 2001, and, therefore, those benefits would have been paid to him in the month that he
died. Second, she argued that the Board failed to follow proper procedures in vacating the
September 28, 2001, decision. R. at 324-26. Specifically, she argued that she was not provided
notice or an opportunity to be heard by the Board prior to the Board's February 21, 2002, decisions
vacating the September 28, 2001, decision and dismissing the appeal. She argued that, in light of
this error, under the Court's holding in Bonny v. Principi, 16 Vet.App. 504 (2002), she was entitled
to the full award of benefits due to Mr. Nolan. Third, Mrs. Nolan argued that the Board was not
deprived of jurisdiction over Mr. Nolan's claim upon his death. R. at 326-27. Finally, she argued
that she has an equitable right to the full amount to the disability compensation due to Mr. Nolan.
4
R. at 327-28. In November 2003, attorney Haemer personally appeared before the Board on
Mrs. Nolan's behalf to present her arguments. R. at 350-68.
On May 10, 2004, the Board issued the decision presently on appeal, rejecting each of
Mrs. Nolan's arguments. R. at 1-11. The Board first held that Mr. Nolan's death deprived the Board
of jurisdiction over his claim. R. at 3, 6. The Board held that 38 U.S.C. § 5310(a) applied to
Mrs. Nolan in this case. R. at 4. However, the Board stated that her payment would be limited to
the amount of "monthly" compensation that Mr. Nolan was due to receive for September 2001, and
not any retroactive benefits that he would have received during that month. R. at 5. The Board
stated that the appellant's arguments were inconsistent with 38 U.S.C. § 5121. Id. The Board held
that it had proper jurisdiction to vacate its September 28, 2001, decision based on 38 U.S.C.
§ 7103(c), which allows the Board to "correct an obvious error in the record." Id. The Board held
that the issuance of its September 28, 2001, decision after Mr. Nolan's death was an "obvious error"
that the Board could correct. R. at 5-6.
Furthermore, the Board concluded that it vacated the September 28, 2001, decision to avoid
a denial of due process to Mrs. Nolan, because an adverse decision on Mr. Nolan's CUE arguments
would have improperly bound Mrs. Nolan. R. at 6. The Board recognized that although, in this case,
Mrs. Nolan actually sought to be bound by the September 28, 2001, decision, the Board lacked
jurisdiction to issue a decision on Mr. Nolan's claim after his death because such action has the
potential affect of violating Mrs. Nolan's due process rights. R. at 6-7. The Board also rejected
Mrs. Nolan's Bonny argument, stating that Bonny was distinguishable because, in that case, the
veteran had died after VA issued a decision awarding the benefit sought, rather than before VA
issued its decision. R. at 8-9. Finally, the Board acknowledged the harshness of its decision and the
failure by VA to award Mr. Nolan the benefits he was entitled to during his life, but rejected Mrs.
Nolan's request for equitable relief, stating that it had no equitable authority to award benefits. R.
at 10. Accordingly, the Board held that Mrs. Nolan was not entitled to accrued benefits for the
period prior to September 1, 1999. Id.C. Proceedings Before the Court
Mrs. Nolan filed a timely Notice of Appeal to this Court. On December 17, 2004, through
counsel, she filed a brief arguing for reversal of the May 2004 Board decision. She presented a novel
5
argument to the Court regarding the interpretation of 38 U.S.C. § 5310(a). She stated that the
Board's September 28, 2001, decision would have stood but for Mr. Nolan's death and, therefore, the
benefits he would have received in September 2001 were the entire retroactive payment due to him
as a result of the revision of the clearly and unmistakably erroneous September 1949 RO decision.
Appellant's Brief (Br.) at 11-13. Citing Bonny, supra, she stated that the "ministerial delay in
calculating the amount [of benefits] or sending a check lacks legal significance." Id. at 11. She
argued that death benefits and accrued benefits are legally distinct, that she is seeking death benefits,
and that the Board erred in referring to accrued benefits in rejecting her section 5310 argument. Id.
at 13-15. She characterized 38 U.S.C. § 5310(a) as a savings clause because of the broad language
describing "the amount of benefits the veteran would have received." Id. at 15-18. Mrs. Nolan
argued that the plain, broad language of the statute conflicted with the Board's narrow interpretation
of it and that the statute should be interpreted so that benefits include all benefits due for the month
of death, including retroactive benefits, and not limited to only monthly benefits. Id. She stated that,
if section 5310(a) is a savings clause, it need not be read in a manner consistent with 38 U.S.C.
§ 5121, the statute authorizing the payment of accrued benefits. Id. at 18-20. Finally, regarding
accrued benefits under section 5121, Mrs. Nolan explicitly stated that "[t]his appeal is not about the
award of accrued benefits paid to Mrs. Nolan for two years prior to the [v]eteran's death." Id. at 2.
The Secretary filed a brief asserting that the Board's decision should be affirmed. The
Secretary argued that Mrs. Nolan's arguments are contrary to the plain language of section 5310(a).
Secretary's Br. at 8-12. The Secretary argued that, rather than seeking benefits for the month that
Mr. Nolan died, she sought benefits for the 631 months between March 1949 and September 2001.
Id. at 8. The Secretary stated that section 5310(a) specifically provides only for the payment of
benefits "for that month" in which Mr. Nolan died. Id. at 10-12. The Secretary also argued that
Mrs. Nolan's interpretation of section 5310(a) is inconsistent with the legislative history of that
section. Specifically, the Secretary stated that the purpose of section 5310(a) is to prevent the award
of accrued benefits for periods of less than one month for the purpose of administrative convenience,
and it was not intended to be a savings provision. Id. at 13-14. The Secretary also argued that
Bonny, supra, is inapplicable to this case because Mr. Nolan died before the Board awarded him
retroactive benefits. Id. at 15-16. Finally, the Secretary argued that Mrs. Nolan's interpretation of
6
section 5310(a) is contrary to this Court's caselaw. Specifically, the Secretary argued that the effect
of her argument would be to hold that a request for revision of a prior decision on the basis of CUE
survives the death of the claimant, which would be contrary to the U.S. Court of Appeals for the
Federal Circuit's (Federal Circuit) holding in Haines v. West, 154 F.3d 1298, 1302 (Fed. Cir. 1998).
Id. at 16.
Mrs. Nolan subsequently filed a reply brief addressing the Secretary's arguments, a motion
for oral argument, and a memorandum of law addressing this Court's decision in Mayfield v.
Nicholson, 19 Vet.App. 103 (2005), rev'd, 444 F.3d 1328 (Fed. Cir. 2006). The Secretary filed an
opposition to the motion for oral argument and a response to Mrs. Nolan's memorandum of law
addressing the Court's Mayfield decision.
On September 19, 2005, the Secretary filed an opposed motion to dismiss this appeal as
moot. The motion states that attorney Haemer informed counsel for the Secretary that Mrs. Nolan
had died. The Secretary argued that, under the Court's holding in Landicho v. Brown, 7 Vet.App.
42, 44 (1994), when a veteran seeking disability compensation benefits dies while his appeal is
pending before the Court, substitution is not appropriate, but instead, the appropriate remedy is to
vacate the Board's decision and dismiss the appeal. The Secretary further stated that in Erro v.
Brown, 8 Vet.App. 500, 501-02 (1996), the Court held that the logic of its Landicho holding extends
to the substitution of one dependent for another in DIC claims.
On September 21, 2005, Maureen Gage, acting pro se, filed an opposed motion to substitute
herself in place of the appellant. She states that Mrs. Nolan was her mother and that substitution
would be appropriate based on the Court's routine practice prior to 1994. She further asserts that the
circumstances surrounding this case are unlike those in which the Court has deemed substitution
inappropriate, such as in Landicho, supra. On October 6, 2005, the Secretary filed an opposition to
the motion to substitute, relying on the reasoning set forth in the September 19, 2005, motion to
dismiss.
On October 11, 2005, attorney Haemer filed an opposition to the Secretary's motion to
dismiss. He states that the Court should exercise its discretion and grant Mrs. Gage's motion to
substitute in the interest of judicial efficiency in order to "materially advance Mrs. Gage's claim for
accrued benefits," because the issues involved have already been addressed by the Board and briefed
7
for the Court. He argues that Landicho, supra, is not controlling because the purpose of Landicho
and its progeny is to preserve a dependent's claim by vacating an underlying adverse Board decision.
In this case, he argues, vacating the underlying decision would involve vacating a decision that was
partially favorable to Mrs. Nolan. Finally, he argues that Erro, supra, is not controlling because that
case explicitly did not reach the issue of substitution of one dependent for another when the
underlying claim is for accrued benefits rather than DIC benefits.
On February 17, 2006, the Court issued an order to the Secretary to certify to the Court
whether Mrs. Gage is an eligible accrued-benefits beneficiary based on the death of Mrs. Nolan. On
April 18, 2006, the Secretary responded to the Court's order stating that Mr. Nolan's claims file does
not have records sufficient to certify that Mrs. Gage is Mr. Nolan's daughter. The Secretary stated
that he was not concluding that Mrs. Gage was not Mr. Nolan's daughter, but that the evidence
presently in the claims file was not conclusive regarding that issue. Attached to the Secretary's
response are the references to Mrs. Gage in the record before the Court. See R. at 91 (1959
application for benefits stating that Mr. Nolan has two children, named "Maureen" and "Linda"), 178
(2001 letter from Mrs. Gage to the office of Senator Edward M. Kennedy regarding Mr. Nolan's
claim), 209 (2001 cover sheet from a faxed motion to advance Mr. Nolan's appeal on the docket),
225 (Mr. Nolan's death certificate stating that "Maureen P. Gage" informed the Commonwealth of
Massachusetts of Mr. Nolan's death and indicating her relationship as "daughter"); see also R. at 61
(1949 application stating that Mr. Nolan has one child born in 1948 named "Linda Marie").
On April 21, 2006, attorney Haemer filed a motion for leave to supplement the Secretary's
response. The motion purports to provide all the evidence necessary to find that Mrs. Gage is
Mr. Nolan's daughter. Attached to that motion is (1) a copy of a signed document from the City of
Salem, Massachusetts, Office of City Clerk, indicating that "Maureen Nolan" was born in Salem on
August 24, 1951; (2) a copy of a birth certificate for "Colleen Nolan Richard" indicating that she was
born on April 24, 1982, to "Dennis Everett Richard" and "Maureen Patricia Nolan;" and (3) a
certificate of marriage indicating that "Maureen Richard" and "Robert Gage" were married on
May 28, 1994. Finally, the motion states that the 1949 application does not list Mrs. Gage because
the application predates her birth.
8
II. ANALYSIS
A. 38 U.S.C. § 5121 and 38 U.S.C. § 5310The version of 38 U.S.C. § 5121 in effect at the time Mrs. Nolan filed her claim for accrued
benefits provided, in pertinent part:
(a) . . . [P]eriodic monetary benefits . . . 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 in this section . . . referred
to as "accrued benefits") and due and unpaid for a period not to exceed two years,
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;
(B) The veteran's children (in equal shares);
(C) The veteran's dependent parents (in equal shares);
(3) Upon the death of a surviving spouse or remarried surviving
spouse, to the children of the deceased veteran;
....
(5) In all other cases, only so much of the accrued benefits may be
paid as may be necessary to reimburse the person who bore the
expense of last sickness and burial.
....
(c) Applications for accrued benefits must be filed within one year after the date of
death.
38 U.S.C. § 5121 (2002).2
In Bonny, supra, the Court held that section 5121(a) created two distinct types of benefits.3
16 Vet.App. at 507. First, section 5121(a) provided for the award of "benefits awarded but unpaid"
2
The law regarding accrued benefits has changed since the initial award in this case. First, in 2003, Congress
amended 38 U.S.C. § 5121(a) to remove the two-year limitation on the payment of accrued benefits. See Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 104(a), 117 Stat. 2651, 2656. This change only applies to deaths occurring
on or after December 16, 2003. See id., Pub. L. No. 108-183, § 104(d). Second, on the same day the Board issued the
decision presently on appeal, the Federal Circuit issued a decision interpreting the language in section 5121(a) limiting
the award of accrued benefits to two years to mean any two-year period during a beneficiary's life, rather than the two
years immediately preceding death. See Terry v. Principi, 367 F.3d 1291 (Fed. Cir. 2004). However, in this case,
Mr. Nolan died before December 16, 2003, and the two-year period resulting in the maximum award of accrued benefits
would be the two years immediately preceding Mr. Nolan's death. Thus, neither of these changes has any effect on
Mrs. Nolan's claims.
3
In its 2003 amendment to section 5121(a), Congress deleted the comma relied upon by the Court in Bonny
to distinguish between the two types of benefits. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104(c)(1),
117 Stat. 2651, 2656.
9
under existing ratings or decisions at the time of a claimant's death, which are not subject to a two-
year limitation. Id. Second, section 5121(a) provided for the award of "accrued benefits," which are
benefits a claimant is entitled to based on evidence in his or her claims file at the time of death, and
are limited to a two-year period. Id. at 507-08.
The term "periodic monetary benefits" in section 5121(a) excludes one-time lump-sum
payments, such as a payment for specially adapted housing. See Papalardo v. Brown, 6 Vet.App.
63, 65 (1993) (holding that payments for specially adapted housing are not "periodic monetary
benefits" because such benefits may be paid only once). "Periodic monetary benefits" also do not
include benefits that may be paid more than once, but are not paid at regular intervals, such as
automobile purchase payments. See Gillis v. West, 11 Vet.App. 441, 442-43 (1998) (holding that
automobile purchase payments cannot be claimed under section 5121 because, although such
benefits may be paid more than once, payment is not made periodically, meaning at regular
intervals). However, retroactive awards of disability compensation benefits are considered "periodic
monetary benefits," even though the actual payment of retroactive benefits is made in a one-time
lump-sum payment, because the benefits that the claimant had been entitled to receive during his or
her lifetime would have been paid monthly. See Wilkes v. Principi, 16 Vet.App. 237, 241-42 (2002).
The definition of "children" in section 5121 is not the commonly understood definition, but
rather, "child" is expressly defined in 38 U.S.C. § 101(4)(A) as a person who is unmarried and (1)
under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3)
under the age of 23 and pursuing a course of instruction at an approved educational institution. See
Burris v. Principi, 15 Vet.App. 348, 352-53 (2001).
The effective date of an award of DIC benefits, in cases where an application is received
within one year of the death of a veteran, is the first day of the month in which the death occurred.
See 38 U.S.C. § 5110(d)(1). However, 38 U.S.C. § 5310(a) may provide for an increased payment
for the month the veteran dies.
If, in accordance with the provisions of section 5110(d) of this title, a surviving
spouse is entitled to death benefits under chapter 11, 13, or 15 of this title for the
month in which a veteran's death occurs, the amount of such death benefits for that
month shall be not less than the amount of benefits the veteran would have received
under chapter 11 or 15 of this title for that month but for the death of the veteran.
10
38 U.S.C. § 5310(a); see also 38 U.S.C. § 5310(b) (discussing payments to a surviving spouse for
the month of a veteran's death in cases where the surviving spouse is not entitled to benefits under
chapters 11, 13, or 15 of title 38, U.S. Code). Essentially, section 5310(a) provides that, for the
month that a veteran dies, a surviving spouse is entitled to receive the greater of (1) the amount of
the disability compensation or pension benefits the veteran would have received for the month of
death but for the veteran's death, or (2) the amount of the death benefits the surviving spouse would
be entitled to for the month of the veteran's death. As the Secretary observes in his brief, only two
cases have cited section 5310 and neither discuss its substantive provisions. See Zevalkink v. Brown,
102 F.3d 1236, 1242 (Fed. Cir. 1996) (discussing section 5310 in the context of defining the term
"death benefits"); Burris, 15 Vet.App. at 351 (stating that benefits were awarded to the appellant
under sections 5121 and 5310).
B. Landicho v. Brown
Because of its status under Article I of the U.S. Constitution, this Court is not constitutionally
bound by the case or controversy restraints on the judicial power of Article III courts. See 38 U.S.C.
§ 7251; Mokal v. Derwinski, 1 Vet.App. 12, 14 (1990). However, as a matter of policy, the Court
has followed the case or controversy requirements that Article III courts are bound to follow, and has
refused to decide hypothetical cases. See Mokal, 1 Vet.App. at 15. Thus, the Court will dismiss any
case in which the controversy surrounding the appeal has become moot, meaning "there is no longer
any actual controversy." BLACK'S LAW DICTIONARY 1025 (7th ed. 1999); see Aronson v. Brown,
7 Vet.App. 153, 155-56 (1994); Mokal, 1 Vet.App. at 15. Another outcome of this policy is the
requirement that parties appearing before the Court have standing, meaning they must "'personally
ha[ve] suffered some actual or threatened injury as a result of the putative illegal conduct.'"
Waterhouse v. Principi, 3 Vet.App. 473, 475 (1992) (quoting Valley Forge Christian Coll. v. Ams.
United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1984)).
The Court confronted both of these doctrines in the face of the death of veteran-appellants
in Landicho, supra. There, the Court held that the appellants were improperly substituted to carry
on the appeals of the deceased veterans in this Court and, therefore, that both appeals must be
dismissed. 7 Vet.App. at 54. The Court held that a putative accrued-benefits claimant could not
continue a deceased veteran's appeal for disability compensation benefits under chapter 11 of title
11
38, U.S. Code, before the Court because "absent a [Board] decision that a survivor is qualified as an
accrued-benefits claimant under section 5121, any decision the Court would render on the deceased
veterans' . . . claims could well be purely hypothetical." Id. at 49. The Court reasoned that there was
no longer a case or controversy before the Court because, as to the deceased veterans, their disability
compensation claims under chapter 11 died with them, and as to the appellants, who were putative
accrued-benefits claimants, any claims they may have had were not before the Court. Id.
Turning to standing, the Court found that putative accrued-benefits claimants were not
adversely affected by a prior adverse Board decision that had been appealed to the Court because the
filing of a Notice of Appeal to the Court rendered the underlying Board decision nonfinal and the
subsequent death of the appellant rendered the Board decision a nullity. Id. at 53. Because a
nonfinal Board decision becomes a nullity upon the death of the appellant, the Court determined that
the proper action was to vacate the underlying Board decision to ensure it has no adverse effect on
the adjudication of any subsequent accrued-benefits claim, and dismiss the appeal. Id. at 54-55.
Moreover, the Court also noted that the notification of an appellant's death is sufficient declaration
of intent to seek accrued benefits, based on the death of the appellant, to raise an informal claim
under 38 C.F.R. § 3.155(a). Id. at 50.
In Zevalkink, supra, the Federal Circuit upheld this Court's decision refusing to substitute an
accrued-benefits claimant in the place of a deceased appellant. 102 F.3d at 1243-44. The Federal
Circuit concluded that the determination of whether a party is an eligible accrued-benefits claimant
involves factual findings, which this Court is prohibited from making in the first instance. Id. at
1244. Crucial to the Federal Circuit's holding was that no prejudice would result from the Court's
refusal to substitute because the accrued-benefits claim was separate from the veteran's underlying
claim. See id. at 1243. However, the Federal Circuit did not conclude that dismissal was an
automatic remedy. Rather, 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 refused to require this Court to grant a limited remand. Id. at 1244. To date, the Court has
never granted such a limited remand for the purpose of determining the eligibility of an accrued-
benefits claimant.
12
The Court has extended the holding in Landicho. For example, in Erro, supra, the Court
held that Landicho applied equally to appellants seeking DIC benefits. 8 Vet.App. at 501. In Erro,
the Court refused to allow substitution of a putative child of the veteran in the place of the veteran's
surviving spouse, who was pursuing a DIC claim at the time of her death. Id. In Edmonds v. Brown,
9 Vet.App. 159, 161 (1996) (per curiam order), the Court held that a child of the veteran could not
seek substitution to pursue an accrued-benefits claim derivative of an asserted surviving spouse's
claim for DIC benefits because there was no determination regarding whether the appellant was a
surviving spouse. However, the Court has never considered the applicability of Landicho in cases
where an appellant seeking accrued benefits or a surviving spouse seeking benefits under 38 U.S.C.
§ 5310 dies while an appeal is pending before the Court.
C. Substitution for Purpose of Claiming Mr. Nolan's Benefits
As the Court held in Landicho, supra, Mrs. Nolan's appeal became moot upon her death.
Neither Mrs. Gage nor attorney Haemer disputes that Mrs. Nolan's appeal became moot, but they ask
that the Court decline to extend Landicho to avoid injustice to Mrs. Gage. Specifically, they argue
that the substitution of Mrs. Gage for Mrs. Nolan and the adjudication of Mrs. Nolan's appeal on the
merits would materially advance the adjudication of Mrs. Gage's accrued-benefits claim. However,
for the following reasons, we conclude that the case or controversy requirement adopted by this
Court in Mokal, supra, prohibits substitution of Mrs. Gage for Mrs. Nolan to pursue this appeal with
regard to any benefits due to Mr. Nolan at the time of his death. See Landicho, 7 Vet.App. at 54 (en
banc Court amending Rule 43 of the Court's Rules of Practice and Procedure simultaneously with
the issuance of the Landicho decision to allow substitution only "to the extent permitted by law").
1. Section 5310 Claim
We hold that Mrs. Gage does not have standing to substitute herself for Mrs. Nolan to pursue
her appeal regarding any claim to benefits under 38 U.S.C. § 5310(a). Simply stated, Mrs. Gage has
no legal entitlement to benefits under section 5310 in her own right. Section 5310 clearly limits its
scope to surviving spouses. The RO determined that Mrs. Nolan was Mr. Nolan's surviving spouse.
R. at 257. Accordingly, only Mrs. Nolan is entitled to payment of benefits pursuant to section 5310.
That is, the Board's decision regarding the section 5310 claim only personally adversely affected
Mrs. Nolan. See Waterhouse, supra.
13
The circumstances surrounding the section 5310 argument are indistinguishable from those
surrounding a surviving spouse seeking the accrued disability compensation payments of a deceased
veteran. Surviving spouses have no legal entitlement to receive disability compensation benefits in
their own right. See 38 U.S.C. §§ 1110, 1131 (providing for the payment of disability compensation
to veterans); Erro, 8 Vet.App. at 501 (stating that "Landicho held that a veteran's claims for benefits
for a service-connected disability contained in chapter 11 of title 38 of the U.S. Code die with the
veteran; a veteran's survivors may have a claim for benefits under chapter 13 of title 38, but these
claims are different from those of the veteran"). The only means by which Mrs. Gage potentially
may obtain any benefits that Mrs. Nolan was entitled to at the time of her death under section 5310
is through an accrued-benefits claim pursuant to section 5121.
2. Section 5121 Claim
We do not reach the issue of Mrs. Gage's standing to substitute herself in the place of
Mrs. Nolan to pursue a claim under 38 U.S.C. § 5121. Rather, for the following reasons, we hold
that the claim for accrued benefits, based upon any benefits that Mr. Nolan was entitled to at the time
of his death, is moot.
In her principal brief, Mrs. Nolan, through her attorney, clearly and unambiguously stated that
she was seeking benefits pursuant to 38 U.S.C. § 5310(a) and not accrued benefits pursuant to
38 U.S.C. § 5121. Appellant's Br. at 2 ("This appeal is not about the award of accrued benefits paid
to Mrs. Nolan for two years prior to the Veteran's death based on the evidence in the record.").
Generally, issues not raised in the appellant's principal brief are deemed abandoned on appeal. See
Ford v. Gober, 10 Vet.App. 531, 535-36 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995),
aff'd 104 F.3d 1328 (Fed. Cir. 1997). Although attorney Haemer is correct, in stating in his
opposition to the Secretary's motion to dismiss, that Landicho and Erro, both supra, do not reach the
issue of the substitution of one accrued-benefits claimant for another, in this case, there is no
accrued-benefits claim pending before the Court because of Mrs. Nolan's explicit waiver of the issue
in her principal brief. Accordingly, this case is not about the substitution of one accrued-benefits
claimant for another. When Mrs. Nolan explicitly abandoned any accrued-benefits arguments in her
brief, the Board's decision regarding entitlement to additional accrued benefits became final and any
controversy regarding entitlement to additional accrued benefits was mooted by that choice.
14
In her brief, Mrs. Nolan refers to the Court's decision in Bonny, supra. Appellant's Br. at
11-12. However, we observe that there were no "benefits awarded but unpaid" at the time of
Mr. Nolan's death because the decision awarding him retroactive disability compensation benefits
was made after his death. Therefore, there were no "existing ratings or decisions" at the time of his
death awarding him retroactive disability compensation, and Mrs. Nolan was not entitled to "benefits
awarded but unpaid" at the time of Mr. Nolan's death. 38 U.S.C. § 5121(a).
Our holding is limited to the facts presented in this case and cannot be read to prohibit
substitution in cases where an appellant seeking accrued benefits dies while an appeal as to that
claim is pending before this Court. Such a scenario presents the potential for prejudice that is not
present in this case and that was not present in Landicho. Specifically, the requirement that an
accrued-benefits claim be filed within one year of death would bar an appellant's survivors from
filing an accrued-benefits claim based on the veteran's entitlements because it generally takes more
than one year for a claim to reach this Court. See 38 U.S.C. § 5121(c). Because such a scenario is
not present in this case, we explicitly leave open the question of the proper procedure when an
accrued-benefits claimant dies while pursuing that claim and a second putative accrued-benefits
claimant seeks substitution before the Court.
Our decision also should not be read as a determination regarding whether Mrs. Gage is
eligible to receive accrued benefits, or the merits of any accrued-benefits claim that she might pursue
at the RO. See Zevalkink, 102 F.3d at 1244 (stating that a determination of eligibility under section
5121 "necessarily involves fact finding" and that this Court cannot properly make such a
determination in the first instance). We hold only (1) that Mrs. Nolan had abandoned an appeal of
the Board's decision on her claim for accrued benefits under section 5121, (2) that her appeal as to
additional benefits under section 5310 became moot upon her death, and (3) that Mrs. Gage may not
substitute herself in the place of Mrs. Nolan to pursue a claim under section 5121 for benefits due
to Mr. Nolan at the time of his death.
D. Substitution for Purpose of Claiming Mrs. Nolan's Benefits
We next turn to the resolution of the issue of substitution for the purpose of claiming accrued
benefits due to Mrs. Nolan. We hold that when a surviving spouse seeking benefits under 38 U.S.C.
§ 5310 dies while an appeal is pending before the Court, the circumstances are indistinguishable
15
from those present in Landicho, as discussed in Erro, supra. Accordingly, the proper resolution of
the appeal is to vacate the underlying Board decision and dismiss the appeal. There is no prejudice
to Mrs. Gage in requiring that she establish herself before VA as an eligible accrued-benefits
claimant. There is no reason for attorney Haemer to be concerned that applying Erro and Landicho
would result in the vacatur of decisions favorable to Mrs. Nolan. Because the Court is vacating the
Board decision only as to the matter on appeal (entitlement to retroactive benefits under 38 U.S.C.
§ 5310), to the extent the RO and Board decisions were favorable to Mrs. Nolan, those decisions
remain undisturbed. See, e.g., R. at 257-63 (awarding entitlement to accrued benefits based on a
finding that the September 1949 RO decision was clearly and unmistakably erroneous), 297-99
(granting service connection for the cause of Mr. Nolan's death and awarding DIC benefits).
However, the Board's decision as to the section 5310 matter on appeal will have no binding effect
on the adjudication of an accrued-benefits claim. See Landicho, 7 Vet.App. at 52. Because the RO
decisions underlying the Board decision were subsumed in the Board decision on appeal, those
decisions also will have no binding effect on an accrued-benefits claim. See Yoma v. Brown,
8 Vet.App. 298, 299 (1995) (per curiam order).
As stated above, because Mrs. Gage is clearly not Mr. Nolan's surviving spouse, she has no
entitlement in her own right to benefits under 38 U.S.C. § 5310. Accordingly, the only potential
manner by which she can recover any benefits Mrs. Nolan was entitled to at the time of her death
under section 5310 at the time of her death is through a claim for accrued benefits under
section 5121. We, of course, express no view either on the merits of any claim for accrued benefits
due to Mrs. Nolan, or on Mrs. Gage's eligibility to collect any such benefits, including whether
Mrs. Gage qualifies as a "child," as defined in 38 U.S.C. § 101(4), such that she could collect more
than the expenses for Mrs. Nolan's final illness and burial, and whether any potential benefits that
Mrs. Nolan was entitled to under 38 U.S.C. § 5310 may be awarded in a claim for accrued benefits
under 38 U.S.C. § 5121. See Wilkes, Burris, Gillis, and Papalardo, all supra. We observe that an
informal claim for accrued benefits is pending before VA as a result of Mrs. Gage's motion to
substitute herself in place of the appellant, and we leave these questions to VA to decide in the first
instance in the course of the adjudication of Mrs. Gage's accrued-benefits claim. See Landicho,
7 Vet.App. at 50.
16
III. CONCLUSION
On consideration of the foregoing, the Secretary's September 19, 2005, motion to dismiss this
appeal is granted. The Board's May 10, 2004, decision is VACATED as to the matter appealed to
the Court (entitlement to retroactive benefits under 38 U.S.C. § 5310) and this appeal is
DISMISSED. Mrs. Gage's September 21, 2005, motion to substitute is denied. The motion for oral
argument is denied. See Winslow v. Brown, 8 Vet.App. 469, 471 (1996) (denying motion for oral
argument where Court did not believe it would materially assist in disposition of appeal). Attorney
Haemer's April 21, 2006, motion for leave to supplement the Secretary's response is denied as moot,
however a copy of the documents attached to that motion should be associated with Mrs. Gage's
pending claim for accrued benefits.
KASOLD, Judge, concurring in the result: I write separately to highlight the fact that
substitution of an accrued-benefits beneficiary for a deceased appellant may be appropriate when the
beneficiary has a personal stake in the outcome of the litigation. See Redding v. West, 13 Vet.App.
512, 514 (2000) ("[I]n order for an appellant to have standing, that individual must demonstrate that
he or she has been injured and has a 'personal stake in the outcome of the controversy.'" (citation
omitted)); U.S. VET . APP . R. 43. When benefits have been denied as a matter of law, as they were
in this appeal, an accrued-benefits beneficiary has a personal stake in the outcome of that legal issue
and there is no reason to require the beneficiary to undertake a meaningless and time-consuming
journey through the entire claims process below only to have the issue ultimately resolved in a
subsequent appeal to the Court. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court
reviews Board's interpretation of law de novo); Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) (Court's
interpretation of law is binding on the Board); see also Zevalkink v. Brown, 102 F.3d 1236, 1244
(Fed. Cir. 1996) (stating that this Court could issue a limited remand to determine whether a person
qualifies as an accrued-benefits claimant); cf. Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)
("No principle of administrative law or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that the remand might lead to a different result.")
(citations omitted).
17
Of course, in cases like this, accrued-benefits-beneficiary status is a prerequisite to granting
substitution. In this instance, there exists a factual dispute over the status of Ms. Gage as an accrued-
benefits beneficiary, the resolution of which might resolve the entire matter, at least as it pertains to
this case. Accordingly, I concur in the dismissal of the appeal.
18