Craig-Davidson: Substitution

Craig-Davidson v. McDonough, Case Number 20-4372, decided May 16, 2022 discusses substitution of a party.

The Board issued a decision in the name of the veteran.  However, a timely notice of appeal was submitted by the veteran’s surviving spouse.  The Secretary sought to dismiss the appeal as untimely because the NOA was filed 202 days after the Board issued its decision.  The question before the Court was whether the surviving spouse of the veteran, and an eligible accrued-benefits claimant, has standing to appeal on her own behalf the December 2019 Board decision, when the veteran died more than 120 days after the Board issued its decision.

The Court concluded “the appellant has statutory and constitutional standing to bring this appeal because the veteran, by application of the doctrine of equitable tolling, died during the time that he was permitted to file an NOA, and therefore the appellant is adversely affected by the Board's decision in the same manner that the veteran was adversely affected by the Board's decision. Further, because the veteran's time to appeal the Board's decision was tolled from December 3, 2019, the day the Board issued its decision, to May 23, 2020, the date of the veteran's death, the appellant's NOA, which was filed 30 days later, will be treated as timely, and the Court will deny the Secretary's motion to dismiss.”

The Court noted the change in substitution brought on by Breedlove v. Shinseki, 24 Vet App 7 (2010).  While historically the Court had concluded that an accrued-benefits claimant lacked standing to appeal a Board decision issued in the name of a veteran who died after the Board issued its decision and prior to filing an NOA this changed with Breedlove. 

Breedlove announced that the Court "henceforth will consider substitution, if requested, in all cases pending before the Court," and the Court concluded as follows: an eligible accrued-benefits claimant is 'adversely affected' by the appealed Board decision denying a veteran's claim for benefits and has standing to pursue substitution on the veteran's claim because he or she is affected by the VA adjudications . . . in the same way that the veteran was affected at the time he filed his [NOA].” 

The Court then relied on Demery and stated: “the Court in Demery concluded that the rationale supporting substitution applies equally to an eligible accrued-benefits claimant's right to file an NOA in his or her name, and that the timing of the veteran's death should not determine whether an accrued-benefits claimant may continue the veteran's appeal.” 

As to the question of standing, the Court determined: “in determining whether the veteran's death occurred during the period to appeal the adverse Board decision, the appellant, as an accrued-benefits claimant, is not limited to the 120-day period set forth in section 7266(a). Rather, the appellant steps into the shoes of the veteran at the time of death; if the veteran's time to file an appeal had not yet run as of the date of his death, then the appellant may be considered a person adversely impacted by the December 2019 Board decision denying the veteran's lung cancer claim, and she has standing to file an NOA in her own right.”

The next question was the time to appeal.  The veteran died 171 days after the Board’s decision.  The spouse argued the veteran’s time to appeal did not begin to run because he was incapacitated by his terminal illness.  The Court concluded: “the appellant has shown that the veteran's illness rendered him incapable of handling his own affairs and thus constitutes an extraordinary circumstance.”  It pointed to the fact of palliative care, use of morphine and lorazepam, and lack of consciousness.

The Court then determined that the time to file (120 days) began after the veteran’s death and because the notice of appeal was submitted within 120 days it was timely.  Thus, the VA’s motion failed.

It is odd that the Secretary would so vigorously fight a surviving spouse under these circumstances and file a motion to dismiss.  The unwillingness to look at the facts and equities and exercise discretion by not filing such a motion or not withdrawing it prior to oral argument on this motion is a shocking exercise of a lack of discretion and judgment.

Decision written per curium by Judges Greenberg, Meredith, and Laurer.

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