Susic: Substitution of An Adult Child Upon a Veteran’s Death

Susic v. Shulkin, Case Number 13-0158, decided October 26, 2017 considers the ability to substitute an adult child upon a veteran’s death.  At issue was potentially over a decade of accrued benefits related to an earlier effective date.  The case had resulted in numerous appeals and the veteran died shortly after the Federal Circuit remanded the case.

Three adult children of the veteran sought to be substituted.  They argued that while they were adult children, the potential earlier effective date involved a time when the children were still minors.

Substitution is governed largely by 38 USC 5121 as well as 38 USC 101(4)(A) which defines child as an unmarried person under 18 or who before turning 19 became permanently incapable of self-support or who is over 18 but less than 23 and seeking higher education.

The Court determined

In section 5121 of title 38, U.S. Code, Congress stated that an accrued benefits

determination is to be made "upon the death of a veteran." 38 U.S.C. § 5121(a)(2). It is clear from the plain language of the statute that to qualify as an accrued benefits beneficiary, an individual must satisfy the requirements of the statutory framework for these benefits when the veteran dies as opposed to at some point during the pendency of the veteran's claim.

The Court also addressed appellant’s arguments that the law had been changed by Congress and stated:

The Court also concludes that the appellant's counsel has failed to persuade the Court that

when it enacted section 5121A, Congress intended to fundamentally change the accrued benefits beneficiary framework. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (finding that the appellant bears the burden of persuasion on appeals to this Court), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Congress enacted 38 U.S.C. § 5121A to "improve and modernize VA claims processing." Breedlove, 24 Vet.App. at 14. The appellant's counsel has not identified any support for the proposition that Congress intended section 5121A to change anything other than how VA processed its claims, particularly as it relates to the dependency requirements for accrued benefits beneficiaries.

  

This case is an example of the fundamental unfairness that can result from the VA’s dilatory measures in making a fair decision.  Delays can result in the death of a veteran and a situation where the VA never has to pay the benefits that were long owed.

Per Curium decision by Judges Schoelen, Pietsch, and Greenberg.