Case: 23-1749 Document: 43 Page: 1 Filed: 04/04/2025
United States Court of Appeals
for the Federal Circuit
______________________
JOSHUA L. SMITH,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1749
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-3568, Judge Amanda L. Meredith, Judge Joseph L. Toth, Judge William S. Greenberg.
______________________
Decided: April 04, 2025
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KENNETH M. CARPENTER, Carpenter Chartered, Topeka, KS, argued for claimant-appellant.
YARIV S. PIERCE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, ERIC P. BRUSKIN, BRENDAN DAVID
JORDAN, PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN,
SAMANTHA ANN SYVERSON, Office of General Counsel,
United States Department of Veterans Affairs, Washington, DC.
Case: 23-1749 Document: 43 Page: 2 Filed: 04/04/2025
2 SMITH v. COLLINS
______________________
Before DYK, MAYER, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Joshua Smith was substituted in his deceased veteran
father’s appeal to the Board of Veterans’ Appeals. The
Board denied Mr. Smith’s request for an earlier effective
date for benefits for service-connected injuries based on allegedly newly associated service department records. The
U.S. Court of Appeals for Veterans Claims affirmed. We
determine that Mr. Smith’s appeal to this court is moot and
thus dismiss.
BACKGROUND
In 2010, George Smith (“Mr. Smith, Sr.”) filed to reopen
a previously denied claim for benefits for service-connected
post-traumatic stress disorder (“PTSD”). J.A. 57. The Department of Veterans’ Affairs (“VA”) regional office (“RO”)
granted service connection effective on the date of his 2010
request to reopen. J.A. 58–64. Mr. Smith, Sr. appealed,
requesting an effective date prior to the date of the 2010
request to reopen. J.A. 91–94. In 2015, the Board of Veterans’ Appeals (“Board”) remanded to obtain and review
the complete record, since prior VA medical treatment records, which indicated an earlier PTSD diagnosis, were not
in the claims file. J.A. 95–98. On remand, the RO determined that Mr. Smith, Sr.’s first PTSD diagnosis was in
2007, but the RO did not grant this earlier effective date,
since that diagnosis was for medical treatment purposes
and not currently part of the claim file. J.A. 99–126.
Mr. Smith, Sr. appealed to the Board, requesting an effective date prior to the date of the 2010 request to reopen.
See J.A. 128. After Mr. Smith, Sr. died in 2016, the Board
dismissed the appeal as moot. J.A. 127–32. The VA then
granted a request by appellant, Joshua Smith
Case: 23-1749 Document: 43 Page: 3 Filed: 04/04/2025
SMITH v. COLLINS 3
(“Mr. Smith”), who is the son of Mr. Smith, Sr., to substitute as the claimant. J.A. 133–36.
In 2021, the Board granted an earlier effective date
based on Mr. Smith, Sr.’s first PTSD diagnosis in 2007, because the Board determined that his entitlement arose on
the date of that diagnosis, not merely the date in 2010
when the VA received Mr. Smith, Sr.’s request to reopen.
J.A. 137–49. The Board also decided that Mr. Smith, as an
adult, was “only eligible for the accrued benefit necessary
to reimburse expenses bore [sic] in relation to the last sickness or burial of the Veteran.” J.A. 139–40 (citing 38
C.F.R. § 3.1000(a)(5)).
Later in 2021, the RO implemented the Board decision,
calculating the total accrued benefits. J.A. 189–92. The
RO “defer[red] a decision on payment of accrued benefits
on development of evidence of expenses.” J.A. 190. The
difference between the total calculated by the RO and payments already disbursed to Mr. Smith, Sr. under the RO
rating decision from 2010 amounted to over $9,000. See
J.A. 63, 190; Appellee’s Br. 14. 1 Mr. Smith then sent to the
VA a “breakdown of funeral expenses” for Mr. Smith, Sr., a
total of $1,143. J.A. 196–98.
In 2022, Mr. Smith appealed to the U.S. Court of Appeals for Veterans Claims (“Veterans Court”), requesting
an even earlier effective date because, according to
Mr. Smith, the Board misinterpreted the requirement to
reconsider newly associated service department records
under 38 C.F.R. § 3.156(c). J.A. 150–79. The Veterans
Court affirmed. J.A. 1–11. The Veterans Court determined that the Board had properly considered all available
evidence, including newly associated service department
1 The “more than $9,000” difference is based on calculations by the VA, Appellee’s Br. 14, but Mr. Smith does
not dispute this calculation. Appellant’s Reply Br. 2.
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4 SMITH v. COLLINS
records under § 3.156(c), to conclude that the earliest possible effective date was that of Mr. Smith, Sr.’s first PTSD
diagnosis in 2007. Id.
On appeal to this court, Mr. Smith argues that the Veterans Court misinterpreted § 3.156(c) and, as a result,
should have remanded for the VA to grant him an earlier
effective date. Appellant’s Br. 6–16. The Secretary of Veterans Affairs (“Secretary”) responds that the appeal is
moot. Appellee’s Br. 12–14. In the alternative, the Secretary argues that the court did not misinterpret the regulation or that any error in doing so was harmless. Appellee’s
Br. 14–27.
DISCUSSION
The Secretary argues that Mr. Smith’s appeal is moot,
as it would be of “no consequence” to him if, on remand, the
claim were assigned an earlier effective date. Appellee’s
Br. 12–13. According to the Secretary, as a substituted
party for his deceased veteran father, Mr. Smith is only entitled to the deceased veteran’s due and unpaid accrued
benefits up to a certain point: those that would cover the
expenses of last sickness and burial. Appellee’s Br. 13.
Here, as noted previously, those expenses amount to
$1,143. J.A. 198. Thus, according to the Secretary, even if
the amount of accrued benefits were to increase based on
an earlier effective date, Mr. Smith would nonetheless be
entitled to only $1,143 of that pot of accrued benefits. Appellee’s Br. 14. The Secretary notes that, based on the 2021
RO implementation, the unaccounted-for benefits amount
to over $9,000, which is more than $1,143—thus, any decision granting entitlement to more accrued benefits would
not affect the outcome for Mr. Smith. Appellee’s Br. 14.
For the following reasons, we agree.
We review mootness de novo as a question of law. Ford
Motor Co. v. United States, 688 F.3d 1319, 1329 (Fed. Cir.
2012). Federal courts may only decide “cases and controversies.” Kingdomware Techs., Inc. v. United States, 579
Case: 23-1749 Document: 43 Page: 5 Filed: 04/04/2025
SMITH v. COLLINS
5
U.S. 162, 169 (2016) (cleaned up). This means that “an actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed.” Already, LLC v.
Nike, Inc.,
568 U.S. 85, 91 (2013) (cleaned up). Federal
courts are “not empowered to decide moot questions or abstract propositions.” North Carolina v. Rice,
404 U.S. 244,
246 (1971) (cleaned up).
The VA granted Mr. Smith substitution under
38 U.S.C. § 5121A. J.A. 134. That section requires that
“[t]hose who are eligible to make a claim under this section
shall be determined in accordance with section 5121 of this
title.” 38 U.S.C. § 5121A(b). Turning to 38 U.S.C. § 5121,
that provision contains six subsections. The only applicable subsection is (a)(6), which requires that, “[i]n all other
cases” besides those enumerated at (a)(1)–(5), “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.”
38 U.S.C. § 5121(a)(6) (emphasis
added). Here, Mr. Smith does not fall into any of the enumerated categories at
35 U.S.C. § 5121(a)(1)–(5). 2 As a result, Mr. Smith falls within the “other cases” under
§ 5121(a)(6), so he can only be reimbursed for the expenses
of last sickness and burial.
2 The only enumerated “case” that might apply to
Mr. Smith would be the case enumerated at 38 U.S.C.
§ 5121(a)(2)(B), which permits benefits to go to a “veteran’s
children” upon the veteran’s death. But
38 U.S.C. § 101
defines “child” under this title as a person who is unmarried and is either below 18 years old, “became permanently
incapable of self-support” prior to that age, or is between
18–23 years old and “is pursuing a course of instruction at
an approved educational institution.” Mr. Smith meets
none of these criteria for “child,” and thus § 5121(a)(2)(B)
does not apply to him. See J.A. 139–40.
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6 SMITH v. COLLINS
At his time of death, Mr. Smith, Sr. was entitled to and
had not received benefits for at least the previously unaccounted-for period from the effective date in 2007 assigned
by the RO and the earliest date of certain records in 2009.
See J.A. 63, 190. These benefits amounted to over $9,000.
Id.; see also Appellee’s Br. 14. By contrast, Mr. Smith’s expenses for last sickness and burial were $1,143 for the cost
of the funeral, J.A. 198—significantly less than $9,000. If
Mr. Smith were to obtain an even earlier effective date,
prior to 2007, any increase in unaccounted-for benefits
would not change the amount of Mr. Smith’s reimbursement under § 5121(a)(6). Here, Mr. Smith can only be reimbursed up to $1,143 from his father’s accrued benefits of
$9,000 (or more, assuming an effective date earlier than
the date of the PTSD diagnosis in 2007).
Mr. Smith argues that he should receive the entirety of
the benefits due to Mr. Smith, Sr., because 38 U.S.C.
§ 5121A, which sets out the requirements for substitution
in cases pending before the VA, “allows him [Mr. Smith] to
complete his father’s pending appeal to recover all benefits
due his father.” Appellant’s Reply Br. 4 (Mr. Smith’s emphasis). According to Mr. Smith, this provision is not limited by the separate statutory provision at 38 U.S.C.
§ 5121(a)(6), which limits recovery of an accrued benefits
recipient to “the expenses of last sickness and burial.” Appellant’s Reply Br. 4. We reject Mr. Smith’s reading of
§ 5121A. Subsection (a)(1) of this provision requires that
“a living person who would be eligible to receive accrued
benefits due to the claimant under section 5121(a) of this
title may . . . file a request to be substituted as the claimant
for the purposes of processing the claim to completion.”
38 U.S.C. § 5121A(a)(1). This provision does not, contrary
to Mr. Smith’s position, provide that Mr. Smith is entitled
to “recover all benefits” due to his father upon substitution.
Rather, this provision allows a party, like Mr. Smith, to be
substituted so long as the party is eligible under § 5121(a).
As previously discussed, § 5121(a) provides six categories
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SMITH v. COLLINS 7
of persons potentially eligible to recover benefits. And as
we determined, Mr. Smith can recover only under subsection (a)(6), which limits recovery to the expenses of last
sickness and burial. Mr. Smith fares no better under subsection (b) of 38 U.S.C. § 5121A, which also limits recovery
of benefits based on the provisions of § 5121(a). See
38 U.S.C. § 5121A(b) (noting that “[t]hose who are eligible
to make a claim under this section shall be determined in
accordance with section 5121 of this title”).
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the above reasons, we
conclude that Mr. Smith’s appeal is moot.
DISMISSED
COSTS
No costs.
