Sherman E. Morris Sr
v. Shinseki, Opinion Number 12-1913, was decided March 20, 2014 and
concerns who can receive benefits due and payable at the time of a veteran’s
death.
The veteran’s brother served as fiduciary; however, the VA
was retaining a significant amount of unpaid compensation that had resulted
from waiting on a determination of the amount of severance pay the veteran had
received after being released from the temporary disabled retirement list. The VA had not released the unpaid
compensation to the fiduciary because the fiduciary had yet to obtain the VA required
bond.
Ordinarily, under 38 USC Section 5112 upon a veteran’s
death, any monetary benefits due at death goes to the following in order: a)
the veteran’s spouse, b) the veteran’s children, and c) the veteran’s dependent
parents. However, here, the veteran’s
brother argued he was entitled to the withheld funds due but unpaid by
operation of Georgia state inheritance law.
The Court determined that “[i]n enacting section 5121,
Congress limited eligibility for accrued benefits due and unpaid to the same
few categories of dependent family members for whom a veteran could seek
additional disability compensation while alive.” Id. at *6.
The brother argued Section 5121 does not preempt state
inheritance law, but the Court found that under the theory of conflict
preemption, Georgia state inheritance law was preempted.
The brother also argued the veteran had a constitutionally
protected property right in the VA disability award. However, the Court noted Federal Circuit case
law stating a protectable property interest in VA disability benefits extends
only so far as the law creates it and section 5121 does not extend the interest
in this case to the brother. Id. at *18.
It should be noted section 5121 does offer an exception to
reimburse any person who bore the expenses of the last sickness and burial.
Decision written by Judge Bartley and joined by Judges Lance
and Bartley.
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