Sucic v. Wilkie

• Decision Date: 23 April 2019
• Docket Number: 2018-1486
• Citation: 921 F.3d 1095
• Parties: Jack SUCIC, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

921 F.3d 1095

Jack SUCIC, Claimant-Appellant
v.
Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee

2018-1486

United States Court of Appeals, Federal Circuit.

Decided: April 23, 2019

Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

Joshua E. Kurland, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Robert Edward Kirschman, Jr., Loren Misha Preheim, Joseph H. Hunt ; Amanda Blackmon, Brian D. Griffin, Derek Scadden, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Prost, Chief Judge, Reyna and Wallach, Circuit Judges.

Prost, Chief Judge.

The adult children of deceased veteran Jack Sucic appeal the final decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") denying their motion for substitution. Sucic v. Shulkin , 29 Vet.App. 121 (2017). Because the Veterans Court did not err in determining that Mr. Sucic’s non-dependent, adult children do not qualify as accrued benefits beneficiaries under 38 U.S.C. § 5121(a), we affirm the Veterans Court’s denial of their motion for substitution.

921 F.3d 1097

I

Mr. Sucic served on active duty from July 1973 to August 1979 and from December 1982 to October 1984. J.A. 17. In June 2007, he was granted service connection for post-traumatic stress disorder ("PTSD"), effective January 24, 2003. Id. In June 2008, Mr. Sucic filed a notice of disagreement, requesting an earlier effective date of June 30, 1992. J.A. 23–26. The Board of Veterans’ Appeals ("Board") denied Mr. Sucic’s claim for an earlier effective date. J.A. 30, 39–40. The Veterans Court affirmed the Board’s decision. Sucic v. Gibson , No. 13-0158, 2014 WL 2926475, at *4 (Vet. App. June 30, 2014), rev’d and remanded , Sucic v. McDonald , 640 F. App'x 901 (Fed. Cir. 2016). Mr. Sucic appealed to the Federal Circuit, and in February 2016, we reversed the Veterans Court’s denial of an earlier effective date and remanded for further development and determination of the effective date. Sucic v. McDonald , 640 F. App'x 901, 906 (Fed. Cir. 2016). On April 8, 2016, our mandate issued.

The Veterans Court effectuated our ruling by vacating the Board’s decision and remanding Mr. Sucic’s case to the U.S. Department of Veterans Affairs ("VA") for further development and determination of the effective date. Sucic v. McDonald , No. 13-0158, 2016 WL 3035459, at *2 (Vet. App. May 27, 2016), withdrawn , Sucic v. Shulkin , 29 Vet.App. 121 (2017). The Veterans Court entered judgment on June 20, 2016 and issued its mandate on August 22, 2016.

On April 13, 2016, Mr. Sucic died. J.A. 43–46. His death occurred five days after our mandate issued but before the Veterans Court vacated the Board’s decision and remanded the case to the VA. Mr. Sucic’s counsel did not notify the Veterans Court of Mr. Sucic’s death until several months later, on August 31, 2016, shortly after the Veterans Court issued its mandate. See id. On the same day, Mr. Sucic’s counsel filed an unopposed motion to recall the Veterans Court’s judgment and remand decision, J.A. 47–49, and a motion to substitute Mr. Sucic’s three adult children as claimants, J.A. 50–53.

The Veterans Court considered whether Mr. Sucic’s three adult children were eligible accrued benefits beneficiaries under 38 U.S.C. § 5121(a) and therefore qualified for substitution. Sucic , 29 Vet.App. at 122. The Veterans Court interpreted the term "[t]he veteran’s children" in § 5121(a)(2)(B) and determined that Mr. Sucic’s adult children were not eligible accrued benefits beneficiaries. Id. at 125–27. The Veterans Court therefore denied the motion for substitution and dismissed the case. Id. at 127.

Mr. Sucic’s three adult children appealed. We have jurisdiction pursuant to 38 U.S.C. § 7292(a) and (c).

II

We first provide an overview of the statutory provisions at issue in this appeal.

Substitution in VA proceedings is governed by 38 U.S.C. § 5121A. Section 5121A provides that if the claimant dies, living people eligible to receive accrued benefits under § 5121(a) may be substituted as the claimant(s):

If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may , not later than one year after the date of the death of such claimant, file a request to be substituted as the

921 F.3d 1098

claimant for the purposes of processing the claim to completion.

38 U.S.C. § 5121A(a)(1) (emphases added).

The statute governing accrued benefits is 38 U.S.C. § 5121. Accrued benefits are "periodic monetary benefits ... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at [the] date of death ... and [that are] due and unpaid." Id. § 5121(a). Section 5121(a)(2) provides the order of eligibility of claimants to receive accrued benefits upon the death of a veteran:

(2) Upon the death of a veteran, to the living person first listed below:

(A) The veteran’s spouse.

(B) The veteran’s children (in equal shares).

(C) The veteran’s dependent parents (in equal shares).

Id. § 5121(a)(2) (emphasis added).

Congress also enacted a definitions section for Title 38. Id. § 101. Section 101 defines "child" as follows:

(4)(A) The term "child" means (except for purposes of chapter 19 of this title (other than with respect to a child who is an insurable dependent under subparagraph (B) or (C) of section 1965(10) of such chapter) and section 8502(b) of this title) a person who is unmarried and—

(i) who is under the age of eighteen years;

(ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or

(iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty-three years), is pursuing a course of instruction at an approved educational institution;

....

Id. § 101(4)(A).

III

We have exclusive jurisdiction to "review and decide any challenge to the validity of any statute or regulation or any interpretation thereof" by the Veterans Court "and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c). We review the Veterans Court’s statutory interpretation de novo. Cook v. Wilkie , 908 F.3d 813, 817 (Fed. Cir. 2018).

"In statutory construction, we begin ‘with the language of the statute.’ " Kingdomware Techs., Inc. v....