Akard v. McDonough, 2021-1383

• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
• Writing for the Court: PER CURIAM.
• Parties: JEFFREY E. AKARD, Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
• Docket Number: 2021-1383
• Decision Date: 13 December 2021

JEFFREY E. AKARD, Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

No. 2021-1383

United States Court of Appeals, Federal Circuit

December 13, 2021

This disposition is nonprecedential.

Appeal from the United States Court of Appeals for Veterans Claims in No. 19-6262, Judge Michael P. Allen.

JEFFREY E. AKARD, New Castle, IN, pro se.

MARIANA TERESA ACEVEDO, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., LOREN MISHA PREHEIM; AMANDA BLACKMON, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

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Before Prost, Taranto, and Chen, Circuit Judges.

PER CURIAM.

In 2013 and 2015, Jeffrey E. Akard, a veteran of the U.S. Army, requested that the Department of Veterans Affairs (VA) pay to his father the disability benefits being withheld from Mr. Akard during his incarceration. The relevant VA regional office (RO) denied his request for want of evidence that Mr. Akard's father was a dependent parent eligible for such "apportionment." Mr. Akard appealed to the Board of Veterans' Appeals, and the Board dismissed the appeal on the ground that he (unlike his father, who did not appeal) lacked a personal stake in the RO's apportionment ruling and so lacked standing to appeal the ruling to the Board. The Court of Appeals for Veterans Claims (Veterans Court) affirmed the Board's decision. Akard v. Wilkie, No. 19-6262, 2020 WL 5200711 (Vet. App. Aug. 27, 2020); Supplemental Appendix (SAppx.) 1-3. Mr. Akard appeals. We affirm.

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In 1999, VA awarded Mr. Akard disability compensation based on what it found were service-connected low-back and right-shoulder conditions, for which VA assigned him a combined disability rating of 30%. Mr. Akard was later incarcerated after being convicted of several felonies. In April 2009, VA learned of Mr. Akard's incarceration and proposed reducing his benefit payments from 30% to 10%, as authorized by statute, 38 U.S.C. § 5313, and by regulation, see 38 C.F.R. § 3.665(a) (providing that compensation payable to veterans incarcerated for more than 60 days is limited according to 38 C.F.R. § 3.665(d)); id. § 3.665(d) (limiting the compensation payable to an incarcerated veteran with an evaluation of at least 20% to the rate under 38 U.S.C. § 1114(a), equal to a 10% rating). VA implemented the reduction in June 2009, and Mr. Akard does not contest the reduction.

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In both 2013 and 2015, Mr. Akard requested that his withheld benefits-the difference between the 30% awarded and the 10% paid during incarceration-be paid to his father, who, Mr. Akard explained, became disabled in August 2009. SAppx. 8-9. The VA's "apportionment" regulation allows for some or all of the compensation not paid to an incarcerated veteran to be "apportioned" to a "dependent parent[]" on the basis of individual need. See 38 C.F.R. § 3.665(e)(1). The RO "accepted an apportionment claim from [Mr. Akard] on behalf of his father." SAppx 5. In April 2017, the RO, seeking to determine eligibility, asked that Mr. Akard's father complete a dependency form, VA Form 21P-509, see SAppx. 7, and there is no dispute here about the adequacy of notice to Mr. Akard's father of that request. Mr. Akard's father did not respond, and the RO denied Mr. Akard's apportionment request in May 2017, finding insufficient evidence of his father's eligibility. Id.

Mr. Akard filed a notice of disagreement, which the RO accepted for filing. Id. at 5. Whether by that filing or a separate appeal, Mr. Akard appealed the denial of apportionment to the Board.^[1] Mr. Akard's father did not appeal. Indeed, in his brief in the Veterans Court, the Secretary stated that the RO failed to give Mr. Akard's father the required notice of the May 2017 denial at the time, providing that notice only in a June 2020 letter that informed Mr.

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Akard's father of his still-live right to appeal. Sec'y Br. at 7, Akard, 2020 WL 5200711 (19-6262).

The Board dismissed Mr. Akard's appeal in June 2019, citing 38 U.S.C. § 7108's directive that "[a]n application for review on appeal shall not be entertained unless it is in conformity with this chapter [38 U.S.C. §§ 7101-7113]." 38 U.S.C. § 7108; see SAppx. 4-5 (citing statute). The Board reasoned that Mr. Akard did not have "standing" to appeal the denial of apportionment to his father. Id. at 5. To have standing to appeal a denial of apportionment, the Board said, an appellant must have a "'personal stake in the outcome of the controversy.'" Id. (citing Redding v. West, 13 Vet. App. 512, 514 (2000) (citing Baker v. Carr, 369 U.S. 186, 204 (1962))). Here, the Board concluded, Mr. Akard did not show such a stake. The Board explained that an apportionment award "is an entity which is legally separate from [the veteran's] benefits"; incarcerated veterans typically lack a "personal stake" in the benefits that have been properly withdrawn from them (as is undisputed here); and it is only such duly withdrawn benefits that are at issue in a request for apportionment to a dependent. Id. (citing Belton v. Principi, 17 Vet. App. 209, 211-12 (2003) and Ferenc v. Nicholson, 20 Vet. App. 58, 64 (2006)). The Board also found that there was no indication that Mr. Akard was his father's legal guardian, that Mr. Akard's father was his dependent, or that Mr. Akard was adversely affected by the denial of apportionment. Id. For those reasons, the Board dismissed Mr. Akard's appeal. Id.

Mr. Akard appealed to the Veterans Court. The Veterans Court affirmed the Board's dismissal of the appeal on August 27, 2020, agreeing with the Board that Mr. Akard "lacked a 'personal stake' in the decision to deny apportionment of benefits to his father." Akard, 2020 WL 5200711, at *1-2. While observing that Article III itself does not apply to administrative bodies such as the Board, id. at *1 n.14, the Veterans Court ruled that the Board had properly identified the "key concept" defining why Mr. Akard had no

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right to appeal from the RO to the Board here: that he lacked a "personal stake" in whether...