Reeves v. Dept. Of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
__________________________
MARY REEVES (SUBSTITUTED FOR CORBY REEVES),
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7085
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1951, Judge Alan G.
Lance, Sr.
______________________
Decided: June 14, 2012
_______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
ELIZABETH M. HOSFORD, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With her on the brief were TONY
WEST, Assistant Attorney General, Jeanne E. Davidson,
Director, and BRIAN M. SIMKIN, Assistant Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
REEVES v. DVA 2
Assistant General Counsel, and JONATHAN E. TAYLOR,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before BRYSON, MAYER, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge MAYER.
Dissenting opinion filed by Circuit Judge BRYSON.
MAYER, Circuit Judge.
Mary Reeves (“Mrs. Reeves”), the surviving spouse of
veteran Corby Reeves (“Reeves”), appeals a judgment of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) that rejected Reeves’ assertion of clear
and unmistakable error (“CUE”) in an April 1983 decision
of the Board of Veterans’ Appeals (“board”). See Reeves v.
Shinseki, No. 08-1951, 2010 U.S. App. Vet. Claims LEXIS
2203 (Vet. App. 2010) (“Veterans Court Decision”). Be-
cause we conclude that the Veterans Court misinterpreted
38 U.S.C. § 1154(b) when it rejected Reeves’ CUE claim,
we reverse and remand.
BACKGROUND
Reeves served in the United States Army from June
1942 until November 1945. He worked as a heavy mortar
crewman during several combat offensives and was
awarded three Bronze Stars. In September 1981, Reeves
filed a claim seeking service-connected disability benefits
for bilateral sensorineural hearing loss. Reeves stated:
“During my service I experienced a hearing loss due to
firing [an] 81 mm mortar and [from] treatment of malaria
with quinine. . . . My hearing, especially the right ear,
has been deteriorating ever since my active duty.” Reeves
also submitted a medical opinion from his physician, R.L.
Dunlap, M.D., who stated that he had diagnosed Reeves
3 REEVES v. DVA
with bilateral, nerve-type hearing loss in 1962 and that
he attributed this hearing impairment to “noise exposure”
or to treatment with quinine for malaria. 1 In addition,
Reeves submitted records of an audiogram, conducted
soon after his claim was filed, which indicated that he
suffered from “severe bilateral nerve-type hearing loss.”
At a hearing before a Department of Veterans Affairs
(“VA”) rating board in May 1982, Reeves testified that he
had first noticed his hearing loss in the summer of 1946
“when he could not hear a watch tick.” Mrs. Reeves also
testified at the hearing, averring that when she married
Reeves in 1948 she had noticed that he suffered from
hearing loss.
In addition, Reeves submitted statements from offi-
cers with whom he had served during World War II.
These officers stated that he had been exposed to noise
from mortar fire and that he had been treated for malaria
while in service. Major Robert P. McGraw, who served
with Reeves in Company D of the 338th Infantry, stated
that Reeves “had to be with his mortars” during training
exercises and during several combat offensives. McGraw
further asserted that “[b]eing so close to these guns dur-
ing the extensive firing they received over such a long
period of time, the ear could be easily damaged from the
muzzle blast of the 81 mm mortar.”
In April 1983, the board denied Reeves’ claim. Al-
though it acknowledged that he was exposed to mortar
fire and had been treated for malaria while in service, the
board noted that “the earliest clinical recording of hearing
impairment was by [Reeves’] private physician in Novem-
1 The government has been unable to produce cop-
ies of Reeves’ service medical records, explaining that
they may have been destroyed in a 1973 fire at the Na-
tional Personnel Records Center.
REEVES v. DVA 4
ber 1962.” The board concluded that the hearing loss that
had been documented in 1962 was “too remote from
[Reeves’] active service” to be caused by either his expo-
sure to mortar fire or treatment for malaria while in
service. The board’s decision became final when Reeves
did not file an appeal.
In 2004, the board granted Reeves’ application to re-
open his claim. See 38 U.S.C. § 5108 (providing that a
claim will be reopened “if new and material evidence is
presented or secured”). The board cited to new evidence
from a physician who stated that he had treated Reeves
from 1946 to 1954 and that Reeves had experienced
“hearing difficulties” during this time period. The physi-
cian further asserted that Reeves’ hearing problems
“could have resulted from his [military] service, i.e. the
firing of the 81 mm mortar and the treatment of malaria
with quinine.” The board also cited to a July 2001 state-
ment from another physician, as well as a May 2004
statement from a VA medical examiner, both of which
indicated that Reeves’ hearing loss was likely due to noise
exposure while in the military. Accordingly, the board
determined that the record contained sufficient evidence
to establish that Reeves’ hearing impairment was in-
curred during his military service. It therefore awarded
him service-connected disability benefits, with an effective
date of June 13, 2002, the date he filed his application to
reopen his claim.
In December 2006, Reeves filed a motion for revision
of the 1983 board decision, arguing that he was entitled to
an earlier effective date for the award of disability bene-
fits. He asserted that the 1983 decision contained CUE
because the board had failed to apply the combat pre-
sumption contained in section 1154(b). The board re-
jected this argument, however, stating that the
application of the combat presumption was unnecessary
5 REEVES v. DVA
because the 1983 decision accepted the fact that Reeves
had suffered acoustic trauma in service. The board ex-
plained that “[s]ince actual evidence of noise exposure in
service was available, the Board had no need to apply the
combat presumption.”
The board acknowledged that the 1983 decision was
“not a model of legal and factual exposition, at least by
current standards.” It noted that in evaluating whether
there was a nexus between Reeves’ in-service injury and
his subsequent hearing disability, the board reached a
conclusion on nexus which might have been “based on the
expertise of one of the three signatory Board members,
who was a Medical Doctor.” While relying upon the
medical expertise of a board member would be “highly
improper” under current law, the board determined that
“current standards [were] not applicable” in the context of
a claim alleging CUE in an earlier board decision.
On appeal, the Veterans Court affirmed. It rejected
Reeves’ assertion that the evidence of record in 1983 was
such that the board had no choice but to resolve in his
favor any doubt on the question of whether his hearing
disability was incurred in service. Veterans Court Deci-
sion, 2010 U.S. App. Vet. Claims LEXIS 2203, at *3. The
court also determined that “under the law extant in 1983,
the Board was not precluded from relying upon its own
medical judgment” in concluding that Reeves’ hearing loss
had not been incurred in service. Id. at *4. The court
stated, moreover, that “a mere disagreement with how the
facts were weighed or evaluated is not enough to substan-
tiate a CUE claim.” Id. at *3-4.
On February 15, 2011, Reeves filed a notice of appeal
with this court. He died three days later. On April 14,
2011, Mrs. Reeves filed a motion to be substituted for her
husband on appeal. This motion, which included a copy of
REEVES v. DVA 6
Reeves’ certified death certificate, stated that Mrs. Reeves
was entitled to receive any benefits that were due and
payable to her husband as of the date of his death. On
June 1, 2011, this court granted Mrs. Reeves’ motion to
substitute for her husband on appeal, without prejudice to
the government’s ability to make arguments in its appeal
brief on the question of whether substitution was appro-
priate.
DISCUSSION
This court’s authority to review decisions of the Vet-
erans Court is circumscribed by statute. See 38 U.S.C.
§ 7292. Although we have no authority to review chal-
lenges to factual determinations or the application of a
statute or regulation to the facts of a particular case, “[w]e
have recognized . . . that where adoption of a particular
legal standard dictates the outcome of a case based on
undisputed facts, we may address that issue as a question
of law.” Halpern v. Principi, 384 F.3d 1297, 1306 (Fed.
Cir. 2004).
The government makes two principal arguments.
First, it contends that Mrs. Reeves has no standing to be
substituted for her husband on appeal because she has
not filed a claim for accrued benefits with the VA. Sec-
ond, it argues that there is no CUE in the 1983 board
decision because the failure to apply the combat presump-
tion contained in section 1154(b) 2 was harmless error. We
find neither of these arguments persuasive.
I. Substitution
Pursuant to Rule 43 of the Federal Rules of Appellate
Procedure, if a party dies while his appeal is pending
before an appellate court, his personal representative may
2 Section 1154(b) was previously codified at 38
U.S.C. § 354(b).
7 REEVES v. DVA
be substituted for him: “If a party dies after a notice of
appeal has been filed or while a proceeding is pending in
the court of appeals, the decedent’s personal representa-
tive may be substituted as a party on motion filed with
the circuit clerk by the representative or by any party.”
Fed. R. App. P. 43(a)(1). There is no dispute that Reeves
died after he had filed his notice of appeal with this court.
There is likewise no dispute that Mrs. Reeves is her
husband’s personal representative as his surviving
spouse, and that she filed a timely motion to be substi-
tuted for him on appeal. Mrs. Reeves, therefore, meets
the prerequisites for substitution under Rule 43(a)(1).
As the government correctly notes, however, “[t]he
question of substitution is separate from that of stand-
ing.” Richard v. West, 161 F.3d 719, 722 (Fed. Cir. 1998).
Procedural rules, such as Rule 43(a)(1), “simply describe[]
the manner in which parties are to be substituted in
federal court once it is determined that the applicable
substantive law allows the action to survive a party’s
death.” Robertson v. Wegmann, 436 U.S. 584, 587 n.3
(1978) (citations and internal quotation marks omitted).
The government argues that Mrs. Reeves has no standing
to be substituted for her deceased husband. It asserts
that “mere eligibility for accrued benefits is not enough”
to confer standing and that the filing of an accrued-
benefits claim is required before a survivor can be substi-
tuted on a pending appeal. We disagree. Even assuming
arguendo that standing can be established only if a sur-
viving spouse files an accrued-benefits claim, Mrs. Reeves’
motion to be substituted for her husband qualifies as an
informal claim for accrued benefits. 3 See Kelsey v. West,
3 When a veteran dies, his right to continuing dis-
ability compensation ends. See 38 U.S.C. § 5112(b)(1)
(providing that a veteran’s right to disability compensa-
tion terminates on the last day of the month before the
REEVES v. DVA 8
13 Vet. App. 437, 438 (Vet. App. 2000) (explaining that a
notice of appeal, which contained a veteran’s death notice,
constituted “an informal, derivative, claim for accrued
benefits” by the veteran’s surviving spouse); Landicho v.
Brown, 7 Vet. App. 42, 50 (Vet. App. 1994) (concluding
that the filing of a motion for substitution, which was
accompanied by the veteran’s death notice, qualified as an
informal claim for accrued benefits). Indeed, the VA’s
current practice is to treat motions for substitution and
claims for accrued benefits as “one and the same.” Substi-
tution of Party in Case of Claimant’s Death, VA Fast
Letter 10-30 7 (Aug. 10, 2010) (“To request substitution,
an eligible survivor may file either a claim for accrued
benefits or a request for substitution. Accrued benefits
claims and requests for substitution shall be treated as
one and the same.”).
As we explained in Rodriguez v. West, 189 F.3d 1351,
1353 (Fed. Cir. 1992), any communication can qualify as
an informal claim if it: (1) is in writing; (2) indicates an
intent to apply for veterans’ benefits; and (3) identifies the
particular benefits sought. See 38 C.F.R. § 3.155. Here,
Mrs. Reeves’ motion for substitution, which was filed on
April 14, 2011, stated that: (1) her husband, a claimant
seeking VA disability benefits, had an appeal pending
before this court when he died on February 18, 2011; and
(2) she, as Reeves’ surviving spouse, was eligible to re-
veteran’s death). Pursuant to 38 U.S.C. § 5121, however,
certain individuals—typically the surviving spouse—have
the right to obtain the accrued benefits that were due and
payable to the veteran at the time of his death. An ac-
crued-benefits claim is derivative of the deceased vet-
eran’s claim and “incorporates any prior adjudications of
the service-connection issue on claims brought by the
veteran.” Padgett v. Nicholson, 473 F.3d 1364, 1369 (Fed.
Cir. 2007) (citations and internal quotation marks omit-
ted).
9 REEVES v. DVA
ceive the accrued benefits due as of the date of his death
pursuant to 38 U.S.C. § 5121(a). Mrs. Reeves attached a
certified copy of her husband’s death certificate to her
motion seeking substitution. Because Mrs. Reeves’ mo-
tion for substitution clearly evinced an intent to obtain
the benefits due and payable to her husband as of the
date of his death, it qualifies as an informal claim for
accrued benefits.
The Supreme Court allows substitution in situations
analogous to that presented here. Recently, in Henderson
v. Shinseki, the Court granted the motion of a surviving
spouse to be substituted for her veteran husband who
died while his case was pending before the Court. 131 S.
Ct. 624 (2010). Significantly, the surviving spouse was
allowed to substitute notwithstanding the fact that she
had not yet filed an accrued-benefits claim with the VA.
We see no reason why this court should not follow a
similar approach.
In Henderson, the surviving spouse’s motion to substi-
tute stated that she “intend[ed] to submit all necessary
materials to obtain accrued benefits with the VA,” but did
not indicate that she had previously filed an accrued-
benefits claim. The government attempts to distinguish
Henderson by arguing that Mrs. Reeves might have had
standing to substitute if her motion to substitute had
stated that she intended to file an accrued-benefits claim
with the VA in the future. We do not find this reasoning
persuasive. Standing is determined based upon the facts
as they exist at the time the motion to substitute is filed.
See Paradise Creations, Inc. v. U V Sales, Inc., 315 F.3d
1304, 1308 (Fed. Cir. 2003) (“Article III standing, like
other bases of jurisdiction, generally must be present at
the inception of the lawsuit.”); see also Keene Corp. v.
United States, 508 U.S. 200, 207 (1993) (“The jurisdiction
of the Court depends upon the state of things at the time
REEVES v. DVA 10
of the action brought.” (citations and internal quotation
marks omitted)). Accordingly, whether or not a survivor
states that he or she “intends” to file an accrued-benefits
claim with the VA at some point in the future is not
dispositive on the question of whether the survivor has
standing to substitute on a pending appeal. See Park v.
Forest Serv., 205 F.3d 1034, 1037-38 (8th Cir. 2000)
(explaining that events occurring after the filing of a
complaint cannot be used to establish standing).
The government argues that a survivor should be re-
quired to file an accrued-benefits claim with the VA before
being allowed to substitute on appeal because this court is
not permitted to make factual findings on the issue of
whether a particular individual qualifies as an appropri-
ate accrued-benefits claimant. In situations in which the
appropriate accrued-benefits beneficiary is in dispute, it
might be appropriate to remand for a resolution of this
issue. See Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed.
Cir. 1996). Here, however, there is no dispute that Mrs.
Reeves, as the surviving spouse, is entitled to any benefits
due and unpaid to her husband at the time of his death.
See 38 U.S.C. § 5121(a)(2)(A); see also Bailey v. Principi,
351 F.3d 1381, 1384 (Fed. Cir. 2003) (“[W]hen the ma-
terial facts are not in dispute and the adoption of a par-
ticular legal standard would dictate the outcome of the . . .
claim, this court has treated the question . . . as a matter
of law that we are authorized by statute to address.”);
Texas Instruments, Inc. v. United States, 922 F.2d 810,
815 (Fed. Cir. 1990) (explaining that there is no need to
remand a case to determine an issue “which legally
[could] be decided in only one way” (citations and internal
quotation marks omitted)). Because there is no dispute
that Mrs. Reeves is entitled to receive any benefits due
and payable to her husband at the time of his death, we
see no reason that she should be required to file a sepa-
11 REEVES v. DVA
rate accrued-benefits claim with the VA before being
allowed to substitute for her husband on appeal. 4
The government’s argument that Mrs. Reeves must
file a motion for accrued benefits with the VA before this
court can allow her to substitute is an attempt to super-
impose the VA’s claim processing requirements upon this
court’s rules for substitution. The VA, quite clearly, has
no authority to dictate to this court the procedures that
must be followed when allowing a claimant to substitute
on a pending appeal.
“The VA disability compensation system is not meant
to be a trap for the unwary, or a stratagem to deny com-
pensation to a veteran who has a valid claim . . . .” Comer
v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009); see also
Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006)
(“The government’s interest in veterans cases is not that
it shall win, but rather that justice shall be done, that all
veterans so entitled receive the benefits due to them.”).
Notwithstanding the recent death of her husband, Mrs.
Reeves filed a timely motion to substitute—which clearly
indicated an intent to seek accrued benefits—and has
diligently prosecuted her appeal before this court. Under
4 This does not mean that on remand the VA cannot
have Mrs. Reeves file additional paperwork if necessary to
confirm her status as the appropriate accrued-benefits
beneficiary before awarding her any benefits. See 38
U.S.C. § 5121(c) (“If a claimant’s application [for accrued
benefits] is incomplete at the time it is originally submit-
ted, the Secretary shall notify the claimant of the evi-
dence necessary to complete the application. If such
evidence is not received within one year from the date of
such notification, no accrued benefits may be paid.”). We
hold only that Mrs. Reeves was not required to file an
accrued-benefits claim with the VA before being allowed
to substitute for her husband on appeal to this court.
REEVES v. DVA 12
such circumstances, her failure to file an additional
accrued-benefits claim with the VA should not result in
the forfeiture of her right to the compensation due to her
husband at the time of his death. 5 Significantly, the
government has suffered no prejudice as a result of the
failure to file a claim with the VA because Mrs. Reeves’
motion to substitute clearly put it on notice that she
intended to seek accrued benefits.
II. Section 5121A
Congress recently enacted legislation expressly au-
thorizing an accrued-benefits claimant to substitute for a
deceased veteran:
(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.
5 Claims for accrued benefits must be filed within
one year of a veteran’s death. See 38 U.S.C. § 5121(c).
Given that more than a year has passed since Reeves’
death, Mrs. Reeves might forfeit all right to relief if it
were determined that her motion to substitute did not
qualify as an informal accrued-benefits claim.
13 REEVES v. DVA
(3) Substitution under this subsection shall be in
accordance with such regulations as the Secretary
may prescribe.
38 U.S.C. § 5121A. 6 Under this provision, an accrued-
benefits claimant can be substituted for a veteran who
dies while a “claim” or “an appeal of a decision with
respect to such a claim . . . is pending.” Id. § 5121A(1). In
Breedlove v. Shinseki, the Veterans Court determined
that while section 5121A authorizes substitution in pro-
ceedings at the VA, it does not “directly” authorize substi-
tution in cases in which a veteran dies while his case is
pending before a court. 24 Vet. App. 7, 8 (Vet. App. 2010)
(per curiam). In support, the court noted that the statute
refers to a “claimant” and “processing the claim,” and that
“[t]his language indicates persons and events at the
Agency level, not parties to litigation in an appellate
court.” Id. at 11-12. In addition, the court pointed to the
fact that section 5121A explicitly provides that substitu-
tion will be governed by regulations prescribed by the
Secretary of Veterans Affairs and reasoned that “[i]t
would be incongruous to charge the Secretary with prom-
ulgating regulations that would potentially affect
whether” substitution was available in a pending court
proceeding. Breedlove, 24 Vet. App. at 13.
We need not decide whether the Veterans Court cor-
rectly determined that section 5121A does not directly
authorize substitution in court proceedings. That issue is
moot—at least for purposes of the present appeal—given
that we agree with the court’s alternative holding, which
is that even if section 5121A directly applies only to
6 Section 5121A applies in cases in which the vet-
eran died after October 10, 2008. See Veterans’ Benefits
Improvement Act of 2008, Pub. L. No. 110-389, 122 Stat.
4145, 4151.
REEVES v. DVA 14
actions pending before the VA, its enactment nonetheless
undercuts the rationale for previous decisions that re-
fused to allow a survivor to substitute when a veteran
died while his appeal was pending before a court. See
Breedlove, 24 Vet. App. at 20 (“Since Congress has now
created an avenue for an accrued-benefits claimant to
continue to pursue a veteran’s claim . . . after the vet-
eran’s death, the Court henceforth will consider substitu-
tion, if requested, in all cases pending before the Court
regardless of the stage of briefing at the time of a vet-
eran’s death.”).
Prior to 1994, the Veterans Court routinely allowed
an accrued-benefits claimant to be substituted for a
veteran who died while his appeal was pending before the
court. Id. at 15. In Landicho, however, the court reversed
course and determined, based upon its interpretation of
the “overall statutory scheme” for veterans’ benefits, that
Congress did not intend to permit substitution:
The overall statutory scheme . . . creates a chapter
11 disability compensation benefit that does not
survive the eligible veteran’s death. 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 ex-
tent provided for therein, a deceased veteran’s
claim for VA benefits by submitting an application
for accrued benefits within one year after the vet-
eran’s death.
7 Vet. App. at 47. In the court’s view, Congress intended
that a veteran’s claim would be extinguished upon his
death. Id. (emphasizing that the statutes authorizing
disability compensation for veterans “make[] no provision
for survivors”). Because a veteran’s claim “died” with him,
a survivor could not be substituted on that claim, but was
15 REEVES v. DVA
instead required to begin the lengthy claims process anew
by filing his or her own claim for accrued benefits. Id. at
47-48.
We sanctioned this approach to substitution in
Zevalkink. There we held that a surviving spouse had no
standing to be substituted for a veteran who died while
his appeal was pending before the Veterans Court. 102
F.3d at 1240-42. We concluded that the surviving
spouse’s claim for accrued benefits was distinct from the
veteran’s claim for disability compensation, and that
“[a]ny delay inherent in pursuing [a separate accrued-
benefits] claim . . . does not constitute the kind of actual
or threatened injury that confers standing.” Id. at 1244.
Subsequently, however, we refined our approach to
substitution, concluding that a survivor had standing to
be substituted for a deceased veteran in situations where
substitution was required to protect the survivor’s legal
interests. See Padgett, 473 F.3d at 1366-70. In Padgett, a
veteran died after his appeal had been submitted to the
Veterans Court, but before issuance of the court’s judg-
ment in his favor. Id. at 1366-67. We determined that it
was appropriate to allow the surviving spouse to substi-
tute for her deceased husband and to give her the benefit
of the Veterans Court’s judgment by issuing that judg-
ment nunc pro tunc to the date of the veteran’s death. Id.
at 1369. We explained that failure to give effect to the
Veterans Court’s judgment would be improper “because it
would disregard the otherwise final determination of
issues relating to the accrued-benefits claim.” Id. We
concluded, moreover, that the surviving spouse had
standing to be substituted on the veteran’s appeal be-
cause of the “continuing relevance and preclusive effect”
that the issues decided in his appeal would have on her
own claim for accrued benefits. Id. at 1370.
REEVES v. DVA 16
In the wake of Padgett, we observed that the right to
substitute on appeal was not available in all circum-
stances. Unless the refusal to allow substitution would
adversely affect the accrued-benefits claim, a survivor
could not substitute for a deceased veteran, but had to
begin the claims process anew by filing a separate ac-
crued-benefits claim. See Phillips v. Shinseki, 581 F.3d
1358, 1365 (Fed. Cir. 2009) (concluding that substitution
was appropriate where it would “remove[] a significant
roadblock from [the survivor’s] path to obtaining bene-
fits”). In Hyatt v. Shinseki, we concluded that a surviving
spouse had no standing to substitute for her husband who
died while his appeal was pending before the Veterans
Court because her claim for accrued-benefits would not be
negatively impacted by the refusal to allow substitution.
566 F.3d 1364, 1369-71 (Fed. Cir. 2009). We explained
that regardless of whether or not substitution were al-
lowed, the surviving spouse would not be permitted to
rely on evidence not already in her husband’s claims file
when pursuing her claim for accrued benefits. Id. at
1371.
The enactment of section 5121A mandates a shift in
our approach to substitution in veterans’ cases, because
Congress has deemed it both “unfair and inefficient” to
require an accrued-benefits claimant to restart the claims
process after a veteran’s death. H.R. Rep. No. 110-789, at
17 (2008). Congress emphasized that “[a]llowing substi-
tution prevents unnecessary reworking of the same claim,
allowing it to move forward from its current state of
development to appropriate finality and saves families
from facing unnecessary administrative hurdles.” Id.Significantly, section 5121A specifically provides that an
accrued-benefits claimant can be substituted on a de-
ceased veteran’s claim for the purpose of processing the
veteran’s “claim to completion.” 38 U.S.C. § 5121A(1).
17 REEVES v. DVA
The statute thus makes clear that a veteran’s claim is not
extinguished by his death. Instead, it survives so that it
can be processed “to completion,” id., thereby allowing the
accrued-benefits claimant to obtain any benefits due and
payable to the veteran at the time of his death. See
Padgett v. Shinseki, 643 F.3d 950, 956 n.5 (Fed. Cir.
2011). As discussed above, the premise of previous deci-
sions refusing to allow substitution was that Congress did
not intend for a veteran’s claim to survive his death.
Because section 5121A rejects that premise, there is no
continuing justification for refusing to allow an appropri-
ate accrued-benefits claimant to be substituted for a
veteran who dies while his appeal is pending before this
court. See Phillips, 581 F.3d at 1363 n.1 (stating, in dicta,
that section 5121A allows an accrued-benefits claimant to
be substituted on a deceased veteran’s appeal “as a mat-
ter of course”); Breedlove, 24 Vet. App. at 20 (“Congress
has indicated in enacting section 5121A [that] the vet-
eran’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 sepa-
rately pursued apart from the veteran’s underlying claim
for benefits.”).
III. CUE Claim
Turning now to the merits of the appeal, we reject the
government’s contention that there is no CUE in the 1983
board decision because the failure to apply section 1154(b)
was harmless error. That statute provides:
In the case of any veteran who engaged in combat
with the enemy in active service with a military,
naval, or air organization of the United States
during a period of war, campaign, or expedition,
the Secretary shall accept as sufficient proof of
service-connection of any disease or injury alleged
REEVES v. DVA 18
to have been incurred in or aggravated by such
service satisfactory lay or other evidence of service
incurrence or aggravation of such injury or dis-
ease, if consistent with the circumstances, condi-
tions, or hardships of such service,
notwithstanding the fact that there is no official
record of such incurrence or aggravation in such
service, and, to that end, shall resolve every rea-
sonable doubt in favor of the veteran.
38 U.S.C. § 1154(b).
Congress enacted section 1154(b) because of its con-
cern that combat veterans faced “major obstacle[s]” when
seeking to assemble the medical records necessary to
establish that they suffered an injury or disease while in
service. H.R. Rep. No. 1157, at 3 (1941). In many in-
stances, medical records do not survive combat conditions.
Id. Furthermore, due to the exigencies of battle, soldiers
may not immediately seek medical treatment for combat-
related injuries. Id. Accordingly, section 1154(b) allows a
combat veteran to use “satisfactory lay or other evidence”
to establish that he was injured or incurred a disability
while on active duty, even in cases where “there is no
official record” that such injury or disability occurred. 38
U.S.C. § 1154(b). The statute, moreover, specifically
provides that the VA must “resolve every reasonable
doubt in favor of the veteran” when determining whether
a combat veteran incurred a particular injury or disability
while in active service. Id.Mrs. Reeves argues that if the 1983 board had prop-
erly applied section 1154(b), her husband would have
been “entitled to a finding that [the] injury to his hearing
occurred during combat with the enemy.” She further
asserts that the board erred by failing to “resolve every
19 REEVES v. DVA
reasonable doubt” in her husband’s favor when denying
his claim for service-connected benefits.
In response, the government acknowledges that the
1983 board failed to apply the section 1154(b) presump-
tion. It argues, however, that the board was not required
to apply that presumption because “the board was able to
determine that Mr. Reeves’s acoustic trauma was in-
curred in service by examining official records and lay
statements showing that he was a mortarman subject to
noise exposure in service.”
The fundamental flaw in the government’s argument
is that it conflates the question of whether Reeves was
exposed to acoustic trauma 7 with the issue of whether he
suffered permanent hearing loss while on active duty.
When Reeves filed his application for service-connected
disability compensation, he asserted not only that he had
suffered acoustic trauma, but also that this acoustic
trauma led to hearing loss while he was in active service. 8
Accordingly, even though the board accepted that Reeves
7 The American Medical Association defines “acous-
tic trauma” as “[a] severe injury to the ear caused by a
short-duration sound of extremely high intensity such as
an explosion or gunfire.” American Medical Association
Complete Medical Encyclopedia 112 (Jerrold B. Leiken,
M.D., & Martin S. Lipsky, M.D., eds., 2003). An acoustic
trauma can cause permanent hearing loss, but does not
necessarily do so. Id.8 In 1982, Reeves submitted a statement to the VA
asserting: “During my service I experienced a hearing loss
due to firing [an] 81 mm mortar and [from] treatment of
malaria with quinine. . . . My hearing, especially the
right ear, has been deteriorating ever since my active
duty.” Joint App. 21 (emphasis added). It is clear, there-
fore, that Reeves contended not only that he had suffered
in-service acoustic trauma, but that this trauma led to
hearing loss while on active duty.
REEVES v. DVA 20
had suffered acoustic trauma, it was nonetheless required
to apply the section 1154(b) presumption to the separate
question of whether he also suffered permanent hearing
loss while on active duty. In short, although the record
contained evidence of the cause of Reeves’ disability—
acoustic trauma from mortar blasts and the drugs used to
treat malaria—he still had the right to invoke the section
1154(b) presumption in order to show that he incurred the
disability itself while in service. See Shedden v. Principi,
381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (emphasizing the
distinction between the cause of a veteran’s disability and
the disability itself). The board erred, therefore, in con-
cluding that “since evidence of [Reeves’] noise exposure
was of record, [use of] the combat presumption was un-
necessary.”
The situation here parallels that presented in Dam-
bach v. Gober, 223 F.3d 1376, 1380 (Fed. Cir. 2000).
There, a combat veteran’s service medical records showed
that he had been treated for tonsillitis and other infec-
tions while serving in Vietnam, but he sought to rely upon
the section 1154(b) presumption to establish that he had
also suffered from another condition, myocarditis, while in
service. 223 F.3d at 1378-79. On appeal to this court, the
veteran contended that the Veterans Court had “misin-
terpreted section 1154(b) by refusing to apply it to any of
his illnesses because there was documentation [in the
record] of some of his illnesses.” Id. at 1380. We agreed,
explaining that “a combat veteran will receive the benefit
of section 1154(b)” when seeking to establish that he
suffered from a particular disease or condition while in
service, even if the record contains evidence demonstrat-
ing that he was treated for other conditions while on
active duty. Id.A similar analysis applies here. Simply because the
board accepted the fact that Reeves suffered acoustic
21 REEVES v. DVA
trauma in service does not mean that it was not required
to apply the section 1154(b) presumption to the separate
issue of whether he suffered hearing loss while on active
duty. If Reeves had been able to use the section 1154(b)
presumption to show that he incurred a permanent hear-
ing disability in service, it presumably would have been
far easier for him to establish that there was a nexus 9
between his military service and the severe bilateral
sensorineural hearing loss with which he was afflicted
after leaving the military. Instead of attempting to
establish that the acoustic trauma he suffered while in
the military led to hearing loss following his service,
Reeves would only have had to show that the hearing
disability he incurred in service was a chronic condition
that persisted in the years following his active duty. We
reject, therefore, the government’s argument that the
failure by the 1983 board to apply the section 1154(b)
combat presumption was merely harmless error.
Finally, we must emphasize that “[s]ection 1154
makes it abundantly clear that special considerations
attend the cases of combat veterans.” Jensen v. Brown, 19
F.3d 1413, 1416 (Fed. Cir. 1994). In denying Reeves’
disability claim, we see no evidence that the 1983 board
afforded him the benefit of every reasonable doubt on the
question of whether his hearing loss was incurred in
service. See 38 U.S.C. § 1154(b) (requiring that the VA
“resolve every reasonable doubt in favor of” a combat
veteran when determining whether he incurred an injury
9 Even when the section 1154(b) combat presump-
tion applies, a “veteran seeking compensation must still
show the existence of a present disability and that there
is a causal relationship between the present disability and
the injury, disease, or aggravation of a preexisting injury
or disease incurred during active duty.” Shedden, 381
F.3d at 1167 (footnote omitted).
REEVES v. DVA 22
or condition in service). Of record before the 1983 board
were several pieces of evidence indicating that there was
a nexus between Reeves’ post-service hearing disability
and the in-service injury to his hearing. This evidence
included: (1) statements from both Reeves and his wife
asserting that he had exhibited noticeable hearing im-
pairment soon after he left the military; (2) statements
from Reeves’ military comrades asserting that he “had to
be with his mortars” during several combat offensives and
that his hearing could “easily [have been] damaged from
the muzzle blast of the 81 mm mortar”; and (3) a state-
ment from Reeves’ physician, Dunlap, who stated that he
had diagnosed Reeves with bilateral, nerve-type hearing
loss in 1962 and that he attributed this hearing impair-
ment to “noise exposure” or treatment with quinine for
malaria. On remand, the Veterans Court will have the
opportunity to reevaluate, using a correct application of
section 1154(b), whether the 1983 board decision denying
Reeves disability compensation contains CUE.
CONCLUSION
Accordingly, the judgment of the United States Court
of Appeals for Veterans Claims is reversed and the case is
remanded for further proceedings consistent with this
opinion.
REVERSED and REMANDED
COSTS
Appellant shall have her costs.
United States Court of Appeals
for the Federal Circuit
__________________________
MARY REEVES (SUBSTITUTED FOR CORBY REEVES),
Claimant- Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellant.
__________________________
2011-7085
__________________________
Appeal from the United States Court for Veterans
Claims in Case No. 08-1951, Judge Alan G. Lance, Sr.
__________________________
BRYSON, Circuit Judge, dissenting.
Because I do not agree with the court that the 1983
Board of Veterans’ Appeals decision denying compensa-
tion for Mr. Reeves’s hearing loss contained clear and
unmistakable error, I respectfully dissent. 1
1 The court holds that the appellant, Mr. Reeves’s
widow, has standing to prosecute this appeal because she
is entitled to the accrued benefits that were due to Mr.
Reeves at the time of his death. For some reason, which
was not adequately explained, Mrs. Reeves did not follow
the DVA’s procedures for establishing her right to prose-
cute an accrued benefits claim such as this one. However,
the government does not dispute that she is the person
REEVES v. DVA 2
The court concludes that the Board in 1983 committed
clear and unmistakable error because it improperly failed
to apply the predecessor of 38 U.S.C. § 1154(b) to Mr.
Reeves’s claim of in-service injury. I disagree. Section
1154(b) eases the requirements for a combat veteran to
prove an in-service injury, but it does not alter the sepa-
rate requirement that the veteran establish a nexus
between his in-service injury and his current disability.
Because the Board based its 1983 decision on the lack of
proof of nexus, rather than the absence of evidence of in-
service injury, section 1154(b) had no application to the
Board’s decision, and the Board’s failure to apply section
1154(b) therefore did not constitute clear and unmistak-
able error.
To establish entitlement to compensation for a pre-
sent disability, a veteran must demonstrate: “(1) the
existence of a present disability; (2) in-service incurrence
or aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the dis-
ease or injury incurred or aggravated during service.”
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
The third element is the so-called “nexus requirement.”
Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009).
Section 1154(b) can assist the veteran in satisfying
the second prong of the test—that his or her initial injury
was indeed incurred in service—“by liberalizing the
methods of proof allowed.” Jensen v. Brown, 19 F.3d
1413, 1417 (Fed. Cir. 1994). For veterans who “engaged
who would be entitled to receive any accrued benefits due
to Mr. Reeves. For that reason, I see no purpose to be
served by denying her the right to seek benefits because
of her failure to comply with the DVA’s prescribed proce-
dures, and I do not dissent from the court’s decision on
that ground.
3 REEVES v. DVA
in combat with the enemy in active service” with the U.S.
military, the statute directs the DVA to
accept as sufficient proof of service-connection of
any disease or injury alleged to have been in-
curred in or aggravated by such service satisfac-
tory lay or other evidence of service incurrence or
aggravation of such injury or disease . . . notwith-
standing the fact that there is no official record of
such incurrence or aggravation in such service,
and, to that end, shall resolve every reasonable
doubt in favor of the veteran.
38 U.S.C. § 1154(b) (emphasis added).
The statute addresses the manner in which a veteran
may prove that he incurred an injury or disease during
service. It does not address the question whether that
injury or disease is causally related to the veteran’s
current disability. As both this court and the Court of
Appeals for Veterans Claims have repeatedly held, section
1154(b) does not serve to show nexus, i.e., a causal rela-
tionship between an in-service injury and a subsequently
diagnosed disability. Davidson v. Shinseki, 581 F.3d
1313, 1315 (Fed. Cir. 2009) (“[Section] 1154(b) could be
used only to show that [veteran] incurred or aggravated a
disease during service.”); Boyer v. West, 11 Vet. App. 477,
478 (1998) (explaining that “section 1154(b) does not
relieve the appellant of his obligation to submit competent
medical evidence of a nexus between his present hearing
loss and his military service” and that lay testimony
“cannot provide such medical evidence because lay per-
sons are not competent to offer medical opinions”), aff’d,
210 F.3d 1351 (Fed. Cir. 2000); Caluza v. Brown, 7 Vet.
App. 498, 507 (1995) (“Section 1154(b) deals with the
question whether a particular disease or injury was
REEVES v. DVA 4
incurred or aggravated in service . . . not the questions of
either current disability or nexus to service . . . .”), aff'd,
78 F.3d 604 (Fed. Cir. 1996) (table).
Here the Board had no need to rely on section 1154(b)
and did not do so. It found that Mr. Reeves had estab-
lished that his initial injury was incurred in service. In
fact, it is undisputed that Mr. Reeves was exposed to loud
noises as a mortar-man during World War II and that he
received a type of malaria medication that can cause a
temporary loss of hearing. The Board concluded, how-
ever, that Mr. Reeves had failed to show that the injury
he incurred in service caused the bilateral nerve-type
hearing loss from which he was suffering in 1983. That is
a factual determination based on the Board’s assessment
of the evidence before it. It does not represent a legal
error consisting of an erroneous failure to apply section
1154(b).
The majority contends that the Board was required to
apply section 1154(b) not only to the issue of in-service
injury, but also to the issue of whether Mr. Reeves “suf-
fered permanent hearing loss while on active duty.” That
analysis, however, conflates the separate requirements to
show in-service injury and to show nexus with a current
disability. The injury that Mr. Reeves incurred was
acoustic trauma, which may or may not lead to perma-
nent hearing loss, as the majority acknowledges. Mr.
Reeves was required to show a nexus between his injury
and the disability of permanent hearing loss, which the
Board in 1983 found he failed to do. Section 1154(b) does
not provide that proof of nexus. Davidson, 581 F.3d at
1315-16 (section 1154(b) “concerns only whether a disease
was incurred or aggravated in service—not whether the
disease was the principal or a contributory cause” of the
disability); see also Leonhardt v. Shinseki, No. 2011-7095,
5 REEVES v. DVA
slip op. at 7 (Fed. Cir. Feb. 21, 2012) (nonprecedential)
(“Simply put, section 1154(b) is directed to the issue of
‘what happened then’—whether a veteran incurred an
injury or disease while on active duty—not to the question
of whether a current disability was caused by an earlier
in-service injury or disease.”); Dalton v. Nicholson, 21 Vet.
App. 23, 37 (2007) (section 1154(b) “does not alter the
fundamental requirements of a current disability or a
medical nexus to service”); Clyburn v. West, 12 Vet. App.
296, 303 (1999) (“the provisions of section 1154(b) do not
provide a substitute for medical-nexus evidence”). 2
The Board’s 2008 decision that is on review in this
case makes that distinction clear. The Board explained
that in its 1983 decision, it had determined that the
evidence showed that Mr. Reeves had “incurred acoustic
trauma and had received treatment for malaria in ser-
vice,” but that the evidence “did not establish a medical
relationship between events in service and the currently
diagnosed hearing loss.” Addressing section 1154(b) and
its implementing regulation, the Board in 2008 stated
that “the combat presumption is operative only as to the
matter of in-service disease or injury. There must still be
2 There are instances in which proof of in-service
incurrence of an injury may suffice by itself to satisfy the
other requirements for compensation. If a servicemember
loses a leg in service, for example, proof of the in-service
injury would effectively establish both the subsequent
disability and the nexus between the disability and the in-
service injury. In a case such as this one, however, the
proof of nexus is not as clear. Where, as here, the vet-
eran’s in-service injury did not necessarily give rise to the
disability—in this case, permanent hearing loss—the
proof of in-service injury through section 1154(b) does not
by itself establish the required nexus between the injury
and the later disability.
REEVES v. DVA 6
shown a relationship between acoustic trauma in service
and later-diagnosed hearing loss. The combat presump-
tion in no way serves to presumptively fill that gap.”
Based on Mr. Reeves’s submission of new evidence
years later, the DVA concluded that his permanent hear-
ing loss was in fact caused by his in-service injury, and
the DVA awarded him disability compensation beginning
at that time. However, the fact that the DVA subse-
quently found Mr. Reeves’s disability to have been caused
by in-service events, based on a more complete eviden-
tiary showing, does not mean that the Board’s earlier
decision in 1983 was incorrect in light of the evidence
before the Board at that time or that it was the product of
legal error. I therefore agree with the Board and the
Veterans Court that the 1983 Board decision did not
contain clear and unmistakable error.