Case: 23-1377 Document: 49 Page: 1 Filed: 12/30/2024
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS RODENHIZER,
Claimant
DEBORAH RODENHIZER,
Movant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1377
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4740, Judge Joseph L. Falvey,
Jr.
______________________
Decided: December 30, 2024
______________________
KENNETH M. CARPENTER, Carpenter Chartered, Topeka, KS, argued for movant-appellant. Also represented by
KENNETH DOJAQUEZ.
BRENDAN DAVID JORDAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE
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2 RODENHIZER v. MCDONOUGH
HOSFORD, PATRICIA M. MCCARTHY; Y. KEN LEE, SAMANTHA
ANN SYVERSON, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
Before DYK, TARANTO, and STOLL, Circuit Judges.
DYK, Circuit Judge.
Thomas Rodenhizer, a United States Army veteran,
sought an earlier effective date for veteran benefits. The
Board of Veterans’ Appeals (“Board”) denied an earlier
effective date. Mr. Rodenhizer appealed to the United
States Court of Appeals for Veterans Claims (“Veterans
Court”). Mr. Rodenhizer died while his appeal was pending. Mr. Rodenhizer’s mother, Deborah Rodenhizer,
moved to be substituted in her son’s place. The Veterans
Court denied the motion to substitute, vacated the
Board’s decision, and dismissed Mr. Rodenhizer’s appeal,
concluding that Ms. Rodenhizer had not established her
right to the benefits. We vacate and remand with instructions to hold the appeal and motion to substitute in abeyance pending the outcome of proceedings before the
Department of Veterans Affairs (“VA”) to determine
Ms. Rodenhizer’s eligibility.
BACKGROUND
This case raises the question of the procedures to be
followed when a veteran dies while his or her case is
pending in the Veterans Court and a successor seeks to
claim accrued benefits. In March 2019, the Board awarded Mr. Rodenhizer an effective date of June 8, 2016, for a
total disability rating based on individual unemployability. Mr. Rodenhizer appealed the Board’s decision to the
Veterans Court, arguing that he was entitled to an earlier
effective date. Mr. Rodenhizer died in September 2020
while the appeal was pending before the Veterans Court.
As discussed in detail below, substitution for a deceased party in the Veterans Court is governed by the
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RODENHIZER v. MCDONOUGH 3
Veterans Court’s Rules of Practice and Procedure Rule 43.
Eligibility to claim accrued benefits upon a veteran’s
death is governed by 38 U.S.C. § 5121. The Veterans
Court ordered Mr. Rodenhizer’s counsel to show cause
why the Board’s effective date decision should not be
vacated, and Mr. Rodenhizer’s appeal dismissed, because
Mr. Rodenhizer had died. Mr. Rodenhizer’s counsel
explained that Ms. Rodenhizer, Mr. Rodenhizer’s mother,
had sought to be substituted in Mr. Rodenhizer’s place by
filing a completed VA Form 21P-0847, entitled “Request
for Substitution of Claimant Upon Death of Claimant,”
with the VA.
In May 2021, the Veterans Court ordered that
Ms. Rodenhizer file a formal substitution motion with the
Veterans Court. The Veterans Court also ordered the
Secretary of Veterans Affairs to:
file a response (1) informing the [Veterans] Court
as to the current status of [Ms. Rodenhizer’s] formal or informal claim for accrued benefits, including any VA determination as to whether she is a
person who would be eligible to receive accrued
benefits under 38 U.S.C. § 5121(a), and any disposition of the claim; and . . . (2) advising the [Veterans] Court as to . . . whether there is any reason
to believe that [she] fails to qualify . . . [to] be eligible to receive accrued benefits.
J.A. 9.
In response to the Veterans Court’s order, in June
2021, Ms. Rodenhizer filed in the Veterans Court a motion to substitute herself as the appellant in her son’s
pending appeal pursuant to Rule 43 of the Veterans Court
Rules of Practice and Procedure. Ms. Rodenhizer argued
that she was “an appropriate person to be substituted as
appellant under [Veterans Court] Rule 43(b) as the individual who . . . bore the costs of the funeral expenses of
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4 RODENHIZER v. MCDONOUGH
Thomas Rodenhizer . . . under 38 U.S.C. § 5121(a)(6).”
J.A. 31.
In response to the Veterans Court’s order, the Secretary informed the Veterans Court that the VA had not
received an application for accrued benefits from
Ms. Rodenhizer as required by 38 U.S.C. § 5121(c) and
that, as a result, it had made no determination about her
eligibility as an accrued-benefits claimant.
The Veterans Court denied Ms. Rodenhizer’s motion
to substitute, vacated the Board’s March 2019 decision,
and dismissed the appeal. The Veterans Court relied on
its decision in Breedlove v. Shinseki, 24 Vet. App. 7 (2010)
(per curiam order), in determining that it had “no basis to
find that [Ms. Rodenhizer] is an eligible accrued-benefits
claimant, which is a prerequisite for her to be substituted
before [the Veterans] Court.” J.A. 3. This was so because
“there is no evidence that Ms. Rodenhizer requested a
determination of accrued-benefits eligibility from VA
within one year of the veteran’s death,” as required by
38
U.S.C. § 5121(c), and “there [is no] evidence that
VA . . . made a determination about her eligibility to
receive accrued benefits.” 1
Id. The court noted that it
“cannot make the factual determination of a person’s
accrued-benefits eligibility” in the first instance.
Id.
(citing Breedlove, 24 Vet. App. at 20–21). The Veterans
1 In a parallel proceeding that is now pending before the Veterans Court, the Board acknowledged that
“[Ms. Rodenhizer] filed her claim within one year of
[Mr. Rodenhizer’s] death in September 2020,” as required
by the statute, though the Board found she was not
eligible to be considered a substitute party on other
grounds. Copy of BVA Decision at 3, Rodenhizer v.
McDonough, No. 24-7589 (Vet. App. Nov. 18, 2024).
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RODENHIZER v. MCDONOUGH 5
Court explained that it was “vacating the Board’s adverse
decision on [Ms. Rodenhizer’s] son’s claim, which in turn
would allow her to pursue accrued benefits before VA
should the Board deem her eligible to do so.” Id.
Ms. Rodenhizer timely appealed. We have jurisdiction under 38 U.S.C. § 7292(a).
DISCUSSION
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)).
I
We begin with an overview of the relevant statutes as
they pertain to the merits of the case. Section 5121A of
Title 38 of the U.S. Code permits “a living person . . . eligible to receive accrued benefits due to [a]
claimant under [38 U.S.C. §] 5121(a)” to request to be
substituted as the claimant if the claimant dies while his
or her claim for benefits is pending before the VA. 38
U.S.C. § 5121A(a)(1). Section 5121A only applies to cases
pending before the VA. 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”);
Smith through Hicks v. McDonough,
112 F.4th 1357, 1361
(Fed. Cir. 2024) (“[W]e have acknowledged that § 5121A
governs proceedings at the VA level.”). At the time of
Mr. Rodenhizer’s death, his case was pending before the
Veterans Court, not the VA, so § 5121A was inapplicable.
At the same time, we agree with the Veterans Court, see
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6 RODENHIZER v. MCDONOUGH
Breedlove, 24 Vet. App. at 18–21, that the policies animating § 5121A should guide us in determining issues of
substitution in this related context.
When a veteran dies while his or her case is pending
before the Veterans Court, substitution is governed by
Veterans Court Rule 43. That rule provides that in such
a situation, “the personal representative of the deceased
party’s estate or any other appropriate person may, to the
extent permitted by law, be substituted as a party on
motion by such person.” U.S. VET. APP. R. 43(a)(2). There
is no dispute that Mr. Rodenhizer died while his appeal
was pending before the Veterans Court and that
Ms. Rodenhizer filed a motion to be substituted for
Mr. Rodenhizer on appeal. There is, however, a question
as to whether Ms. Rodenhizer is an “appropriate person”
that is eligible to be substituted under Rule 43(a)(2). A
person may be an “appropriate person”—i.e., eligible—to
be substituted only if two statutory conditions are satisfied.
First, the successor “must . . . file[] [an application for
accrued benefits] within one year after the date of death
[of the veteran beneficiary].” 38 U.S.C. § 5121(c). 2
Second, a successor seeking accrued benefits must fall
within the list of eligible individuals under § 5121(a) and
establish he or she is entitled to priority among those
individuals. Section 5121(a) enumerates the categories of
persons who are able to recover “accrued benefits” that
were “due and unpaid” at the time of a veteran’s death.
2 In general, “a specific claim in the form prescribed
by the Secretary [of the VA] . . . must be filed in order for
benefits to be paid or furnished to any individual under
the laws administered by the Secretary.” Id.
§ 5101(a)(1)(A).
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RODENHIZER v. MCDONOUGH 7
The statute then delineates the order of preference in
paying out such benefits. See 38 U.S.C. § 5121(a)(1)–(6).
As relevant to this appeal, § 5121(a)(6) allows qualified
persons to recover accrued benefits to the extent “necessary to reimburse the person who bore the expense of last
sickness and burial.”
38 U.S.C. § 5121(a)(6).
The determination of eligibility is not made in the
first instance by the Veterans Court unless eligibility
presents only a legal question, see Smith, 112 F.4th at
1361, or eligibility is conceded by the Secretary, Breedlove, 24 Vet. App. at 20–21. 3 If eligibility presents fact
issues, “[t]he Court must first obtain from the Secretary a
determination as to whether a particular movant is an
eligible accrued-benefits claimant.” Breedlove, 24 Vet.
App. at 20–21; see Smith, 112 F.4th at 1361–62; Merritt,
965 F.3d at 1360–61. This is so because the Veterans
Court lacks jurisdiction to find facts de novo. See Tadlock
v. McDonough,
5 F.4th 1327, 1333–34 (Fed. Cir. 2021)
(explaining that “Congress expressly limited the Veterans
3 We have acknowledged that the Veterans Court
can decide whether substitution is appropriate without an
eligibility determination from the VA when a would-be
substitute is ineligible as a matter of law and that determination does not present any undecided factual issues.
See Smith, 112 F.4th at 1361 (explaining that under
Breedlove, “the Veterans Court may evaluate whether
substitution is appropriate in the first instance when the
issue presents purely legal questions.” (citing Gabrielli v.
McDonough, No. 2022-1505,
2024 WL 2968937, at *2 &
n.3 (Fed. Cir. June 13, 2024) (nonprecedential)); Breedlove,
24 Vet. App. at 13. So, too, if eligibility is “conceded
by the Secretary on appeal,” no fact finding is required.
Breedlove, 24 Vet. App. at 20–21.
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8 RODENHIZER v. MCDONOUGH
Court’s jurisdiction to exclude de novo fact-finding” (citing
38 U.S.C.§ 7261(c)); see also Smith,
112 F.4th at 1362.
II
Thus, in order to establish her right to be substituted
(her eligibility), Ms. Rodenhizer was required to establish
that she filed the required application within one year of
Mr. Rodenhizer’s death pursuant to § 5121(c) and that she
was an eligible accrued-benefits claimant under § 5121(a).
A
As to the first question, the issue is whether
Ms. Rodenhizer’s filing of VA Form 21P-0847 is such a
filing. The Veterans Court expressly reserved this question, see J.A. 3, and it appears to be at issue in the parallel proceeding. 4
As to the second question, Ms. Rodenhizer endeavors
to establish her entitlement to Mr. Rodenhizer’s claim by
showing she is “the person who bore the expense of
[Mr. Rodenhizer’s] last sickness and burial.” 38 U.S.C.
4 The government admits that “at the time Ms. Rodenhizer filed her VA Form 21P-0847 (Request for Substitution of Claimant Upon Death of Claimant) with [the]
VA, the Veterans Benefits Administration Adjudication
Procedures Manual . . . included [that form] in a list of
applications upon which a claim for accrued benefits may
be filed.” Respondent-Appellee’s Br. at 9 n.2 (first citing
J.A. 1, 61; and then citing J.A. 62). It appears that the
Board in the parallel proceeding has already concluded
that Ms. Rodenhizer’s filing constituted a timely filing of
such a claim. The Board stated, “[Ms. Rodenhizer] filed
her claim within one year of [Mr. Rodenhizer’s] death in
September 2020.” Copy of BVA Decision at 3, Rodenhizer
v. McDonough, No. 24-7589 (Vet. App. Nov. 18, 2024).
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RODENHIZER v. MCDONOUGH 9
§ 5121(a)(6); J.A. 31. 5 She must also establish she is
entitled to priority among potential claimants. See 38
U.S.C. § 5121(a)(1)–(6). These are not legal questions, nor
is this a situation in which the Secretary has conceded
eligibility. Thus, whether Ms. Rodenhizer is an eligible
claimant is a fact question the Veterans Court was without jurisdiction to decide in the first instance, and it must
be resolved in the pending VA proceeding.
B
At oral argument, Ms. Rodenhizer’s counsel appeared
to agree that there is a factual question as to her eligibility as an accrued-benefits claimant, but Ms. Rodenhizer
contends that the Veterans Court erred in denying the
motion to substitute and dismissing Mr. Rodenhizer’s case
before a final decision was made in the parallel VA proceeding relating to her eligibility as an accrued-benefits
claimant. She had earlier sought such a stay in the
Veterans Court. See J.A. 58–59. We agree that the
Veterans Court erred.
Two considerations support Ms. Rodenhizer’s view.
First, under the Veterans Court decision in this case, if
5 In the parallel proceeding, the Board found that
Ms. Rodenhizer “has not alleged or submitted evidence
that she was the dependent parent of [Mr. Rodenhizer]
eligible for substitution under 38 U.S.C. § 5121(a)(2)(C).”
Copy of BVA Decision at 3, Rodenhizer v. McDonough, No.
24-7589 (Vet. App. Nov. 18, 2024). In the present case,
however, Ms. Rodenhizer clarified to the Veterans Court
that she sought substitution as the “person who bore the
expense of last sickness and burial” under
38 U.S.C.
§ 5121(a)(6), not as Mr. Rodenhizer’s dependent parent
under § 5121(a)(2)(C). See J.A. 44.
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10 RODENHIZER v. MCDONOUGH
Ms. Rodenhizer receives in her parallel action a final
determination that she is an eligible accrued-benefits
claimant, because of the refusal to allow substitution in
the Veterans Court, she would have to restart merits
proceedings relating to the accrued benefits due to her son
rather than continuing in his place. 6 But Mr. Rodenhizer
already invested time in pursuing those benefits. Requiring Ms. Rodenhizer to start over would be contrary to the
principles of expediency, fairness, and efficiency served by
this statutory scheme as recognized in connection with
the related procedures of § 5121A. See Reeves v. Shinseki,
682 F.3d 988, 997 (Fed. Cir. 2012) (explaining that after
the enactment of § 5121A, “there is no continuing justification for refusing to allow an appropriate accrued-benefits claimant to be substituted for a veteran who dies
while his appeal is pending before this court”); cf. H.R.
REP. NO. 110–789, at 17 (2008) (Committee on Veterans’
Affairs report on bill leading to § 5121A explaining that
“[a]llowing substitution [in VA proceedings] prevents
unnecessary reworking of the same claim . . . and saves
families from facing unnecessary administrative hurdles.”). There is no prejudice to the VA in staying the
parallel proceeding in the Veterans Court pending the
eligibility determination. Quite the contrary, the VA’s
interests are served by determining eligibility in the
current case, rather than in a new proceeding.
Second, under Federal Rule of Appellate Procedure
43, similar to Veterans Court Rule 43, courts have approved the stay of proceedings pending a determination as
to who is the “personal representative” of a deceased
party. See Ward v. Edgeton, 59 F.3d 652, 653 (7th Cir.
1995) (concluding state’s motion to dismiss decedent’s
6 It is not clear on the record before us exactly what
starting over in the merits proceedings would entail.
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RODENHIZER v. MCDONOUGH 11
appeal was premature where decedent’s representatives
were undetermined and had yet to file a motion to substitute); Mallick v. Int’l Bhd. of Elec. Workers, 814 F.2d 674,
675–76 (D.C. Cir. 1987) (delaying the briefing schedule in
appeal where parties moved for substitution in district
court). We think a similar approach is required at the
Veterans Court. Here, the Veterans Court should have
paused the proceedings in Mr. Rodenhizer’s appeal awaiting the result of the parallel eligibility proceeding.
In sum, we hold that when there is a fact question as
to eligibility, the Veterans Court should stay action on a
motion to substitute in the original claimant’s case and
stay the determination of whether the case should be
dismissed pending a final determination on eligibility in
the VA proceeding. 7 The continuation of such a stay may
be appropriately conditioned on the claimant’s prompt
action in the parallel proceeding to obtain a determination on eligibility.
CONCLUSION
We vacate the Veterans Court’s judgment and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
Costs to movant-appellant.
7 Similar procedures shall govern under Federal
Rule of Appellate Procedure 43(a) if the claimant dies
while the case is pending in our court.
