Case: 23-1378 Document: 44 Page: 1 Filed: 08/28/2024
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS SMITH, THROUGH THE
REPRESENTATIVE OF HIS ESTATE, KAREN
HICKS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1378
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-4730, Judge Joseph L. Falvey,
Jr., Judge Michael P. Allen, Judge William S. Greenberg.
______________________
Decided: August 28, 2024
______________________
JEFFREY N. MARTIN, Hunton Andrews Kurth LLP,
Washington, DC, argued for claimant-appellant.
EMMA EATON BOND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
PATRICIA M. MCCARTHY; Y. KEN LEE, SAMANTHA ANN
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2 SMITH v. MCDONOUGH
SYVERSON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
______________________
Before PROST, SCHALL, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Claimant-Appellant Karen Hicks is the adult daughter
of Thomas Smith, a veteran who died during the pendency
of his appeal before the United States Court of Appeals for
Veterans Claims. Ms. Hicks sought substitution at the Veterans Court on her own behalf or on behalf of Mr. Smith’s
estate. The Veterans Court denied the motion to substitute, holding that Ms. Hicks was not entitled to pursue her
father’s claim. For the reasons explained below, we affirm.
I
Mr. Smith served on active duty in the United States
Air Force from October 1957 to July 1978 and also served
periods in the National Guard. Mr. Smith was service connected for a low back disability and often used “spa therapy” for his condition. J.A. 29. In February 2007, Mr. Smith
submitted documents to the Department of Veterans Affairs Regional Office (RO) requesting specially adapted
housing (SAH) benefits to build a home spa. 1 In June 2007,
before receiving a response from the RO on his request, and
without obtaining a certificate of eligibility for SAH benefits, Mr. Smith constructed a “therapeutic spa and outbuilding” at his home. J.A. 25. In June 2008, Mr. Smith’s
1 As the name suggests, SAH benefits allow veterans
to modify their housing to accommodate service-connected
disabilities. See 38 U.S.C. § 2101(a) (“[T]he Secretary may
assist a disabled veteran . . . in acquiring a suitable housing unit with special fixtures or movable facilities made
necessary by the nature of the veteran’s disability, and necessary land therefor.”).
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SMITH v. MCDONOUGH 3
request was denied by the RO, which was apparently unaware that the outbuilding had already been constructed.
Mr. Smith did not appeal this decision and it became final.
Nearly two years later, Mr. Smith filed a new claim,
this time for reimbursement of the expense of building the
home spa. In March 2012, the RO denied Mr. Smith’s claim
for reimbursement, and in July 2015, the Board of Veterans’ Appeals denied Mr. Smith’s appeal of the issue. The
Board also denied his motion for reconsideration, finding
no error in any of the prior decisions denying entitlement
to SAH benefits.
In August 2018, Mr. Smith appealed the denial of his
claim for reimbursement to the United States Court of Appeals for Veterans Claims (Veterans Court). In June 2019,
before either party had submitted briefing, Mr. Smith
passed away. After Mr. Smith’s death, the Veterans Court
issued an order requiring Mr. Smith’s counsel to show
cause “why the Court should not vacate the Board’s decision and dismiss the appeal,” which, the court explained, is
the typical remedy when an appellant dies during the pendency of an appeal unless there has been an appropriate
substitution by a qualified claimant. J.A. 2; see also J.A. 37
(collecting cases). On behalf of Ms. Hicks, Mr. Smith’s
counsel responded to the order asserting that Mr. Smith’s
adult children should be substituted in his place and allowed to continue the appeal. After several rounds of briefing between Mr. Smith’s counsel and the Secretary of
Veterans Affairs on whether substitution was appropriate,
the Veterans Court ultimately issued a majority opinion,
over a dissent from one judge, vacating the Board’s decision
and dismissing the appeal, concluding that Ms. Hicks had
failed to meet her burden with respect to each of her arguments for substitution. See Smith v. McDonough, No. 18-
4730 (Vet. App. Oct. 17, 2022); J.A. 1–10.
Ms. Hicks timely appealed. We have jurisdiction under
38 U.S.C. § 7292(a).
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4 SMITH v. MCDONOUGH
II
Our jurisdiction to review decisions of the Veterans
Court is limited to reviewing legal questions, including “the
validity of any statute or regulation or any interpretation
thereof.” 38 U.S.C. § 7292(c). We review legal determinations de novo. Hanser v. McDonough,
56 F.4th 967, 969
(Fed. Cir. 2022). “We may not, however, review (1) ‘a challenge to a factual determination’ or (2) ‘a challenge to a law
or regulation as applied to the facts of a particular case,’
unless the challenge presents a constitutional issue.”
Id.
(quoting
38 U.S.C. § 7292(d)(2)).
III
Ms. Hicks raises three issues on appeal to this court,
arguing that (1) the Veterans Court erred in denying substitution under Breedlove v. Shinseki, 24 Vet. App. 7
(2010), (2) Ms. Hicks should be permitted to pursue
Mr. Smith’s claim under
38 C.F.R. § 36.4406, which governs reimbursement for SAH benefits, and (3) the equitable doctrine of nunc pro tunc should be modified to allow
substitution in this case. We address each issue in turn.
A
The primary issue before the Veterans Court, as well
as before us on appeal, is whether Ms. Hicks’s substitution
into Mr. Smith’s case was proper under either 38 U.S.C.
§ 5121A or the Veterans Court’s own substitution doctrine
as explained in Breedlove. Because the Veterans Court did
not err in declining to make factual findings in the first instance, we affirm.
1
We begin with a brief discussion of Breedlove and related statutes. Section 5121A was passed by Congress in
2008 and permits the filing of a request for substitution if
a claimant dies while his or her “appeal of a decision” with
respect to a claim for benefits is pending:
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SMITH v. MCDONOUGH 5
(a) Substitution.—(1) If a claimant dies while a
claim for any benefit under a law administered by
the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person
who would be eligible to receive accrued benefits
due to the claimant under section 5121(a) of this
title may, not later than one year after the date of
the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.
38 U.S.C. § 5121A. The statute also states that “[t]hose
who are eligible to make a claim under this section shall be
determined in accordance with section 5121 of this title.”
Id. Section 5121 allows qualified persons to recover “periodic monetary benefits” that were “due and unpaid” at the
time of a veteran’s death. 38 U.S.C. § 5121(a).
Following the passage of § 5121A, the Veterans Court
considered whether Congress intended for the new statute
to apply only to appeals before the agency (the Department
of Veterans Affairs (VA), which includes the Board of Veterans’ Appeals) or whether the statute also applied to appeals before the Veterans Court. Breedlove, 24 Vet. App. at
10. Ultimately, the Veterans Court held that “the plain
meaning of ‘an appeal of a decision,’ within the overall
structure of section 5121A, refers to an appeal that is pending at VA only.”
Id. at 14. The Veterans Court also concluded that, although § 5121A did not directly apply to
substitution in appeals before the Veterans Court, “the new
legislation warrant[ed] a change in the [Veterans] Court’s”
substitution doctrine. Id. at 15. The Veterans Court further
elaborated:
If substitution is sought in this Court, it remains
within the Court’s discretion to permit substitution. The Court must first obtain from the Secretary a determination as to whether a particular
movant is an eligible accrued-benefits claimant.
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6 SMITH v. MCDONOUGH
This is a factual determination that, unless conceded by the Secretary on appeal, must be made by
VA in the first instance. Those who are eligible to
make a claim for accrued benefits are determined
in accordance with section 5121.
Id. at 20–21 (emphasis added); see also id. at 13 (“[The Veterans Court], being a court of review, does not normally
take evidence in the first instance or adjudicate such factual issues de novo. . . . Evidence of eligibility must first be
presented to VA.”). If the VA makes a determination that
the person seeking substitution is an accrued-benefits
claimant, “standing is established, and substitution generally will be permitted, subject, as always, to judicial decision that it is the appropriate course of action in that
particular case.” Id. at 21.
While this court has never addressed Breedlove in detail, we have acknowledged that § 5121A governs proceedings at the VA level. See Merritt v. Wilkie, 965 F.3d 1357,
1360 n.2 (Fed. Cir. 2020) (noting that “38 U.S.C. § 5121A
. . . provides for substitution in VA proceedings”). Further,
we recently held that while Breedlove requires that the VA
make initial factual findings related to substitution, the
Veterans Court may evaluate whether substitution is appropriate in the first instance when the issue presents
purely legal questions. See Gabrielli v. McDonough, No.
2022-1505,
2024 WL 2968937, at *2 & n.3 (Fed. Cir. June
13, 2024) (nonprecedential).
2
In responding to Ms. Hicks’s arguments regarding substitution, the Veterans Court noted that it was a question
of first impression whether the Breedlove substitution doctrine could apply to claims for nonperiodic benefits—like
the SAH benefits at issue in this case—or whether Breedlove was limited to periodic, accrued-benefits claims. Nevertheless, the court found that it need not reach this issue
because, even assuming that Ms. Hicks could be
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substituted to pursue the SAH claim, “Ms. Hicks fails to
show that she is an eligible accrued-benefits claimant under section 5121, which is a prerequisite for substitution
under Breedlove.” J.A. 5. The Veterans Court explained
that “there is no evidence that, within one year of
Mr. Smith’s death, Ms. Hicks applied for a VA determination of her eligibility as an accrued-benefits claimant,” even
though the court “provided Ms. Hicks an additional opportunity to submit such evidence” during briefing. J.A. 6 (“Indeed, there is no allegation that she ever filed or tried to
file such an application. Nor is there evidence of a determination by the Secretary that she is eligible to be substituted.”). The court thus concluded that “[b]ecause a
determination of accrued-benefits eligibility under section
5121 is required for substitution under Breedlove and section 5121A, Ms. Hicks’s failure to timely obtain this determination means that she fails to show that she may be
substituted here.” J.A. 6 (citing Breedlove, 24 Vet. App. at
20).
On appeal to this court, Ms. Hicks argues that the Veterans Court erred in denying her motion for substitution
under Breedlove. In particular, Ms. Hicks argues that the
Veterans Court should have made a finding on whether she
was a proper accrued-benefits claimant on its own, without
first seeking a determination from the Secretary. See Appellant’s Br. 11 (arguing that permitting substitution “remained within the court’s discretion” and that “Ms. Hicks
had no obligation to return to the VA to determine if she
could be eligible to pursue her father’s claim on appeal”).
Ms. Hicks urges us to adopt the reasoning of the Veterans
Court dissenting opinion, where Judge Greenberg would
have found that Ms. Hicks was a proper substitute because
she “bore the expenses of her father’s last sickness,” see 38
U.S.C. § 5121(a)(6) (permitting accrued benefits to be paid
to “the person who bore the expense of last sickness and
burial”), despite the VA’s assertion that Ms. Hicks had not
sought an accrued benefits eligibility determination from
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8 SMITH v. MCDONOUGH
the Secretary. Appellant’s Br. 11–12. Ms. Hicks argues
that “[t]he Veterans Court erred when it ignored these salient dispositive facts:”
(1) Ms. Hicks is the court-appointed representative
of her father’s estate; (2) she is the only person of
record who bore some of the expenses of his last
sickness and burial; (3) no other heirs or claimants
sought to be substituted in the case; and (4) she
had been incurring the very expenses for financing
the therapeutic spa after her father’s death that he
had incurred during his life. On these facts there
was no reason for the Veterans Court to have done
anything other than find the existence of a case and
controversy, find legal standing, and grant the requested substitution.
Reply Br. 15–16.
The Veterans Court does not have jurisdiction to make
de novo findings of fact. See Tadlock v. McDonough, 5 F.4th
1327, 1333 (Fed. Cir. 2021) (explaining that “Congress expressly limited the Veterans Court’s jurisdiction to exclude
de novo fact-finding”);
38 U.S.C. § 7261(c) (“In no event
shall findings of fact made by the Secretary or the Board of
Veterans’ Appeals be subject to trial de novo by the [Veterans] Court.”); Deloach v. Shinseki,
704 F.3d 1370, 1380
(Fed. Cir. 2013) (“As we have recognized, the statute prohibits the court from making factual findings in the first
instance.”). Ms. Hicks’ status as an eligible accrued-benefits claimant is a factually intensive inquiry that the Veterans Court is not permitted to make in the first instance
and, as such, her arguments with respect to Breedlove must
fail. See Zevalkink v. Brown,
102 F.3d 1236, 1244 (Fed. Cir.
1996) (“Thus, the determination of whether a party qualifies as an accrued[-]benefits claimant necessarily involves
fact finding.”) (superseded on other grounds by 38 U.S.C.
§ 5121A with respect to denial of substitution claims).
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SMITH v. MCDONOUGH 9
Ms. Hicks also argues that she should not have been
required to submit a formal request for accrued benefits eligibility to the VA because “it was sufficient” for Ms. Hicks
to “provide the VA with timely notice . . . of Mr. Smith’s
death” by (1) “filing in the court below,” (2) “filing a . . .
Form 21-22A [Appointment of Individual as Claimant’s
Representative] with the VA,” and (3) filing “a timely motion . . . to substitute herself for Mr. Smith.” Appellant’s Br.
13. Thus, Ms. Hicks asserts that “[n]othing more could
have been expected from her” and it was error for the Veterans Court to deny substitution in light of these efforts.
Id. To the extent that Ms. Hicks argues that this court
should review the record and decide the question of her eligibility anew, we do not have jurisdiction to consider these
arguments. See 38 U.S.C. § 7292(d)(2).
B
Ms. Hicks also argues that the Veterans Court erred in
holding that she could not be substituted under 38 C.F.R.
§ 36.4406(c), the regulation governing the award of SAH
reimbursement benefits in the event of a claimant’s death.
The regulation states:
Should an eligible individual die before the Secretary disburses the full specially adapted housing
grant, the eligible individual’s estate must submit
to the Secretary all requests for reimbursement
within one year of the date the Loan Guaranty Service learns of the eligible individual’s death. Except
where the Secretary determines that equity and
good conscience require otherwise, the Secretary
will not reimburse an eligible individual’s estate for
a request that has not been received by the Department of Veterans Affairs within this timeframe.
38 C.F.R. § 36.4406(c).
The Veterans Court rejected Ms. Hicks’s argument
that § 36.4406(c) authorized her, as a representative of
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10 SMITH v. MCDONOUGH
Mr. Smith’s estate, to receive reimbursement of SAH benefits. The Veterans Court emphasized that the regulation
“specifically requires a request for reimbursement to be
filed with VA within one year of the eligible recipient’s
death,” and noted that “[s]imilarly as with the accrued-benefits theory . . . , there is no evidence that Ms. Hicks submitted an application for reimbursement within one year
of Mr. Smith’s death.” J.A. 8.
On appeal, Ms. Hicks argues that the one-year requirement should not apply to her case because (1) Mr. Smith
submitted the original request for reimbursement directly
to the VA, (2) Mr. Smith carefully documented the costs of
building the therapeutic spa, asserting that the Veterans
Court “surely cannot claim that anything more should have
been done to document those expenses in the year after he
died,” and (3) the VA had notice that Ms. Hicks was
Mr. Smith’s estate’s court-appointed representative, which
Ms. Hicks argues was sufficient to confer notice. Appellant’s Br. 17.
We decline to adopt an interpretation of § 36.4406(c)
that would render the explicit one-year filing deadline inapplicable because such an interpretation is contrary to the
plain language of the regulation. See Frazier v.
McDonough, 66 F.4th 1353, 1357 (Fed. Cir. 2023) (“When
construing a regulation, we begin with the regulatory language itself to determine its plain meaning.” (internal quotations and citation omitted)). We see no legal error in the
Veterans Court’s plain meaning interpretation. Accordingly, we affirm.
C
Finally, Ms. Hicks argues that she should be allowed to
substitute into Mr. Smith’s appeal under the equitable doctrine of nunc pro tunc. The nunc pro tunc doctrine allows a
survivor to be substituted into a veteran’s case when three
factors are met: “(1) that the veteran died after the case
was submitted to [the Veterans Court] for decision; (2) that
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SMITH v. MCDONOUGH 11
substitution is appropriate because the person seeking substitution has standing; and (3) that considerations of justice and fairness have been satisfied.” Suguitan v.
McDonald, 27 Vet. App. 114, 119 (2014); see Padgett v. Nicholson,
473 F.3d 1364, 1367–69 (Fed. Cir. 2007).
The Veterans Court rejected Ms. Hicks’s nunc pro tunc
argument because Mr. Smith died before the case was submitted to the court for a decision, as required by Padgett
and the Veterans Court’s line of cases that rely on Padgett.
J.A. 6. On appeal, Ms. Hicks argues that this court should
deviate from the requirement that nunc pro tunc relief is
only available “where a veteran dies after his case is submitted for decision, but before the opinion issues.” Padgett,
473 F.3d at 1367; see Appellant’s Br. 17–18 (arguing that it
is “appropriate for this Court to reconsider its decision in
Padgett . . . by endorsing a more expansive and more equitable interpretation of” the nunc pro tunc doctrine).
Padgett is a binding precedential opinion issued by a panel
of this court and as such, “cannot be overruled or avoided
unless or until the court sits en banc.” Preminger v. Sec’y of
Veterans Affs.,
517 F.3d 1299, 1309 (Fed. Cir. 2008). Accordingly, Ms. Hicks’s argument that we should “endors[e]
a more expansive and more equitable interpretation” of the
doctrine must fail. See Appellant’s Br. 18. We affirm the
Veterans Court with respect to this issue as well.
IV
We have considered the remainder of Ms. Hicks’s arguments and find them unpersuasive. For the reasons stated
above, we affirm.
AFFIRMED
COSTS
No costs.
