Hyatt v. Shinseki

• Decision Date: 27 May 2009
• Docket Number: No. 2008-7163.,2008-7163.
• Citation: 566 F.3d 1364
• Parties: Paul W. HYATT, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

566 F.3d 1364

Paul W. HYATT, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7163.

United States Court of Appeals, Federal Circuit.

May 27, 2009.

Sandra W. Wischow, Goodman, Allen & Filetti, of Richmond, VA, argued for claimant-appellant.

Claudia Burke, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martie S. Adelman, Attorney, United States, Office of the General Counsel, Department of Veterans Affairs, of Washington, DC.

Before LOURIE, GAJARSA, and PROST, Circuit Judges.

PROST, Circuit Judge.

Mrs. Julianne Hyatt is the widow of Mr. Paul Hyatt, a veteran who died on August 24, 2007, while his claim for disability compensation was pending. On July 22, 2008, the United States Court of Appeals for Veterans Claims ("Veterans Court") issued an order denying two motions filed by Mrs. Hyatt. The first motion requested that the court substitute her as a party in Mr. Hyatt's case. The second asked the court to give nunc pro tunc effect to the Veterans Court's decision on an appeal taken by Mr. Hyatt for which a decision was issued but judgment was not yet entered prior to his death. Because we conclude that Mrs. Hyatt lacks standing to be substituted as a party, we affirm the Veterans Court's disposition of both motions.

I. BACKGROUND

Mr. Hyatt served in the United States Marine Corps from December 1958 to September 1962. In 1959, Mr. Hyatt was injured when a member of his military unit negligently struck him in the back with a bayonet during a ceremony at the Tomb of the Unknowns at Arlington National Cemetery. The serviceman responsible for Mr. Hyatt's injury was disciplined by court martial.

In 1983, Mr. Hyatt filed a claim for disability compensation for a lower-back condition, which he alleged resulted from the 1959 bayonet injury. Along with his application, Mr. Hyatt submitted lay statements describing the circumstances surrounding the bayonet incident. The statements disclosed that the serviceman had been court-martialed, but the court martial records were not submitted and the Department of Veterans Affairs ("VA") did not attempt to acquire them. In December 1983, a VA regional office denied his claim and Mr. Hyatt did not appeal.

In 1998, the VA reopened Mr. Hyatt's case in response to newly submitted evidence. After his claim was again denied, Mr. Hyatt suggested that the Board of Veterans' Appeals ("Board") retrieve the court martial records. The Board declined to do so. Although the Board found that the 1959 bayonet incident had occurred and that Mr. Hyatt currently suffered from a back disability, it also found that a nexus between the two had not been established because there was "no medical, or consistent lay evidence, of the nature and extent of [the bayonet] wound." Accordingly, the Board denied his claim for service connection.

On appeal to the Veterans Court, Mr. Hyatt argued that the VA had failed to satisfy its statutory duty to assist him in obtaining the evidence and information necessary to substantiate his claim. On August 6, 2007, the Veterans Court issued its decision, which reversed the Board's finding that the duty to assist had been satisfied and remanded for further proceedings. The Veterans Court noted the relevance of the court martial records:

In significant part, the Board rested its decision that there was no nexus between Mr. Hyatt's current disability and his injury in service on its finding that there was "no medical, or consistent lay evidence, of the nature and extent of" the wound to Mr. Hyatt's back that he suffered in service. Those dealing with veterans' claims should understand that a court-martial involving an injury to another serviceman likely would contain evidence regarding the extent and nature of the injury for purposes of aggravation and mitigation.

Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007) (citation omitted). Because the court martial records were relevant and had been identified to the VA, the Veterans Court found that the VA "had a duty to attempt to secure the court-martial records and, if unsuccessful in doing so, to provide Mr. Hyatt with the specific notice required by section 5103A(a)(2)." Id. The Veterans Court entered its judgment on August 29, 2007. However, it was later notified that Mr. Hyatt had died on August 24, 2007.

Mrs. Hyatt filed motions requesting substitution of party and reissuance of the judgment nunc pro tunc as of the date of Mr. Hyatt's death. Mrs. Hyatt hoped that these motions, if successful, would result in the court martial records being treated as part of Mr. Hyatt's file at his date of death, thereby making them available for Mrs. Hyatt's claim for accrued benefits under 38 U.S.C. § 5121. In a July 22, 2008 order, the majority of the Veterans Court, over a dissent, determined that Mrs. Hyatt did not have standing to be substituted as a party and thus could not seek reissuance of the judgment. Hyatt v. Peake, 22 Vet.App. 211 (2008). Accordingly, it withdrew the decision on Mr. Hyatt's appeal and vacated the Board decision with respect to the matters upon which Mr. Hyatt's appeal was based. Id. at 215. Mrs. Hyatt timely appealed. We have jurisdiction under 38 U.S.C. § 7292.

II. DISCUSSION

On an appeal from the Veterans Court, this court "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). "Our review is limited to questions of law, and it is de novo." Bailey v. West, 160 F.3d 1360, 1362 (Fed.Cir.1998) (en banc) (citations omitted).

"[A] veteran's claim to disability compensation ... is terminated by his or her death...." Richard v. West, 161 F.3d 719, 723 (Fed.Cir.1998). However, 38 U.S.C. § 5121(a) provides that specified individuals, including a surviving spouse, may receive the "benefits ... to which [the veteran] was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death ... and due and unpaid." Thus, under the statute, "the [§ 5121] claimant takes the veteran's claims as they stand on the date of death." Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed.Cir.1996). Although an accrued benefits claim brought by a surviving spouse under § 5121 is "derivative of the veteran's claim for service connection," it is nevertheless a separate claim based on a separate statutory entitlement to benefits. Id. at 1241. Additionally, it comes with a separate set of administrative and appellate procedures. Id. at 1243-44. Because an accrued benefits claim is a separate claim with separate procedures that begins where the veteran's claim stood at the date of death, the claimant will often be able to pursue her claim without any need to be substituted as a party in the veteran's case. See id. at 1244.

For cases in which the accrued benefits claimant requests substitution, this court has identified a two-part inquiry for deciding if substitution is proper.¹ Padgett v. Nicholson, 473 F.3d 1364, 1370 (Fed.Cir.2007). First, although the Veterans Court is not bound by Article III of the Constitution, it nevertheless requires the claimant to show the presence of a "case or controversy." Id. Second, the claimant "must satisfy the Veterans Court's standing requirement under 38 U.S.C. § 7266(a), which provides that she be `adversely affected' by a decision of the [B]oard." Id.

In this case, Mrs. Hyatt seeks to be substituted as a party in Mr. Hyatt's case and to have judgment reissued nunc pro tunc so that she can benefit from the Veterans Court's decision finding a violation of the duty to assist and remanding for the VA to attempt to obtain the court martial records. The majority of the Veterans Court relied on what appear to be two separate grounds to support its conclusion that Mrs. Hyatt lacks standing for substitution. First, it found that substitution was inappropriate because the result of Mr. Hyatt's appeal lacked the type of "continuing relevance" to Mrs. Hyatt's accrued benefits claim that is required by this court's precedent. Specifically, it concluded that the "continuing relevance" requirement was only met in cases in which the judgment sought to be reissued would result in an imminent entitlement to benefits. Second, it found that Mrs. Hyatt would not be "adversely affected" if the result in Mr. Hyatt's appeal was vacated because even if the decision was to be reissued nunc pro tunc, the court martial records would not be part of the record for Mrs. Hyatt's accrued benefits claim. On appeal, Mrs. Hyatt argues that neither ground is correct.

A

The first ground of the Veterans Court's decision rests on its interpretation of our decisions in Padgett and Pelea v. Nicholson, 497 F.3d 1290 (Fed.Cir.2007). According to Mrs. Hyatt, the Veterans Court improperly relied on Pelea to justify an incorrect interpretation of the rule set forth in Padgett. The government responds that Padgett is distinguishable and Pelea governs the result in this case.

In Padgett, this court addressed a situation in which the Veterans Court, unaware that Mr. Padgett was no longer living, issued a decision that, among other things, reversed a finding by the Board that Mr. Padgett's injury was not service connected. 473 F.3d at 1366-67. By reversing the Board's finding on service connection, the Veterans Court created in Mr. Padgett an entitlement to at least some benefits. Mr. Padgett's surviving spouse, Mrs. Padgett, sought to be substituted. Id. The Veterans Court denied Mrs. Padgett's motion. On appeal, this court reversed, finding that Mrs. Padgett had standing because "but for the nunc pro tunc relief, [the Board's decision, which was reversed by the...