"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Monday, August 16, 2010

Breedlove: What Happens to a Case When a Veteran Dies?

Breedlove: What Happens to a Case when a Veteran Dies?

The decision in Charles L. Breedlove v. Eric K. Shinkseki, Opinion Number 08-3059, decided August 10, 2010, answers the question of what happens when a veteran dies during a case before the Court.

The obvious answer to the above question might be to allow the veteran’s surviving spouse or children to take the veteran’s place. But, that has not been the Court’s practice. Instead, the Court would only allow substitution of party after the case was submitted to the Court, which meant where the veteran’s death occurred after briefing of the case was complete.

However, in light of a new law passed by Congress, 38 U.S.C. Section 5121A the, Court reconsidered its practice and liberalized the ability to substitute a party. Section 5121A as read by the Court specifically applies to an appeal before the VA (as opposed to the Court) and allows substitution when a claimant dies while his appeal is pending before the VA. The Court held that while Section 5121A did not apply directly to the Court, it altered the underpinnings of the Court’s jurisprudence “because a claim for VA benefits no longer necessarily dies with the veteran. The legislation expressly recognizes that an accrued-benefits claimant, in appropriate cases, can continue the veteran’s claim.” Id. at *12. Thus, the Court concluded “no rationale now exists for foreclosing the opportunity for substitution on appeal at this Court based on the time of the death of the veteran.” Id. at *13. “Therefore, [the Court] now hold[s] that, based on enactment of section 5121A, a veteran’s chapter 11 disability benefits claim survives the death of the veteran, not for the purpose of providing VA benefits to a veteran, but for the purpose of furthering the claim of an eligible accrued-benefits claimant. Since Congress has now created an avenue for an accrued-benefits claimant to continue to pursue a veteran’s claim within VA after the veteran’s death, the Court henceforth will consider substitution, if requested, in all cases pending before the Court regardless of the stage of briefing at the time of veteran’s death.” Id. at *13.

The Court then clarified that an accrued-benefits claimant has two options: a) request substitution and carry on the appeal of a deceased veteran through the judicial process, or b) not request substitution and allow the Board decision on a deceased veteran’s claim to be vacated and pursue the accrued-benefits claim anew.

Practically speaking, the decision to substitute as a new party or allow the decision to be vacated and start anew is difficult. Starting anew will likely mean long wait times to go through the administrative levels whereas winning an appeal would start you out as an appealed case which means you should be afforded expeditious treatment. So, assuming you think you can win a decision at the Court level through a Joint Motion for Remand you might be better off taking that route. Additionally, of course, the issue of attorney’s fees is important. A prevailing party before the Court is awarded attorneys fees under the Equal Access to Justice Act. Assuming a claimant prevails before the Court and is awarded attorney’s fees under most fee agreements that will reduce any future attorney fee’s awarded from the back pay, meaning substituting as a party and continuing the case before the Court might also be the best financial option for the claimant.

Decision by Judges Moorman and Lance with a concurrence by Chief Judge Kasold.

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