Akard v. Wilkie
| Decision Date | 27 August 2020 |
| Docket Number | 19-6262 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | Jeffrey E. Akard, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Jeffrey E. Akard VA General Counsel
Before ALLEN, Judge.
Self-represented appellant Jeffrey Akard served the Nation honorably in the United States Army. In this appeal, which is timely and over which the Court has jurisdiction, [1]he contests a June 6, 2019, Board of Veterans' Appeals decision that dismissed his appeal concerning the apportionment of withheld VA benefits to his father.[2] Because appellant lacks a sufficient personal stake in the apportionment of benefits to his father as a matter of law, we will affirm the Board's decision.
Because appellant is proceeding pro se, the Court liberally construes appellant's arguments.[3] But as an appellant he still bears the burden to establish error in the Board's decision.[4]Appellant argues that the Board erred in dismissing his appeal. As we will explain, appellant's argument is incorrect.
Appellant is service connected for both a low back disability and residuals of a right shoulder condition.[5] His combined disability rating is 30%.[6] In April 2009, VA learned that appellant was incarcerated after having been convicted of several felonies, and consequently VA proposed to reduce his disability benefit payments to a level corresponding to a 10% rating.[7] VA effected this reduction in June 2009. [8] This reduction was appropriate given appellant's incarceration and appellant does not argue otherwise.[9]
Despite the reduction in his benefits due to incarceration, appellant's benefits could still be apportioned to, among others, a veteran's "dependent parents on the basis of individual need."[10]Appellant requested that his withheld benefits be apportioned to his father.[11] VA requested that appellant's father complete a dependency form to determine whether he qualified for apportionment. [12] Appellant's father did not respond to VA's request. VA then denied the apportionment request because it determined that appellant's "father is not considered a dependent, [and therefore] has no eligibility for an apportionment."[13]
Appellant appealed this decision (but his father did not). In the decision before the Court, the Board determined that appellant lacked standing to contest the decision - that is, that he had no "personal stake" in the outcome of the apportionment decision. [14] Therefore, the Board dismissed appellant's appeal. It is that determination appellant contests.
We review the Board's decision concerning appellant's standing de novo.[15] The Board correctly decided that appellant lacked standing to contest VA's decision not to apportion his benefits to his father. As we have made clear, "[a]though arising from a veteran's benefits, an apportionment is an entity legally separate from those benefits."[16] And we later held that "[o]nce the reduction of benefits has been authorized, the appellant no longer has a personal stake in the apportioned payments."[17]
Belton and Ferenc are dispositive. Appellant does not have a legally sufficient "personal stake" in the denial of apportioned benefits to his father. If VA incorrectly denied apportioned benefits to his father, the person who can contest that "error" is appellant's father. The Board thus correctly decided that appellant lacked a "personal stake" in the decision to deny apportionment of benefits to his father. That apportionment denial was distinct from appellant's benefits claim.[18]Appellant lacks standing to challenge that apportionment determination.
After consideration of the parties' briefs, the governing law, and the record, the Court AFFIRMS the June 6, 2019, Board decision.
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Notes:
[1] See 38 U.S.C. §§ 7252(a), 7266(a).
[2] Record (R.) at 3-7.
[4] See, e.g., Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet.App. 166, 169 (1997).
[5] R. at 587-96, 714-17.
[6] R. at 550.
[7] R. at 294-95.
[8] R. at 281-84.
[9] See 38 U.S.C. § 1114(a); 38 C.F.R. § 3.665 (2020).
[10] 38 C.F.R. § 3.665(e).
[11] R. at 140-41, 223-25.
[12] R. at 115-17, 124-29.
[13] R. at 100.
[14] R. at 4. The Courts notes that the Board and the Secretary discuss the issue in the context of standing under Article III of the Constitution. Technically, Article III standing requirements don't apply to administrative bodies such as the Board. But that does not matter. The key concept is what the Board identified - does appellant have a "personal stake" in the issue. Id. So, we will use the term "standing" with the understanding that we are not doing so in the sense that the Constitution's Article III standing concepts apply fully to administrative bodies.
[15] See Starr Int'l Co. v. United States, 856 F.3d 953, 963 (Fed. Cir. 2017); Sowers v. McDonald, 27 Vet.App. 472, 479 (2016).
[18] Belton, 17 Vet.App. at 211.
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