Merritt v. Wilkie

Case: 19-1095 Document: 58 Page: 1 Filed: 07/17/2020

United States Court of Appeals
for the Federal Circuit
______________________

CHRISTINA MERRITT, SUBSTITUTED FOR
DOUGLAS A. MERRITT,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2019-1095
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-898, Senior Judge Robert N. Da-
vis.
______________________

Decided: July 17, 2020
______________________

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

SEAN LYNDEN KING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by ETHAN P. DAVIS, MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR., REBECCA SARAH KRUSER;
CHRISTINA LYNN GREGG, BRIAN D. GRIFFIN, Office of
Case: 19-1095 Document: 58 Page: 2 Filed: 07/17/2020

2 MERRITT v. WILKIE

General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________

Before PROST, Chief Judge, CLEVENGER and DYK, Circuit
Judges.
DYK, Circuit Judge.
Douglas A. Merritt, a U.S. Navy veteran and the origi-
nal claimant in this case, filed an application for service-
connected benefits. The Board of Veterans’ Appeals
(“Board”) held that Mr. Merritt had not established entitle-
ment. The United States Court of Appeals for Veterans
Claims (“Veterans Court”) affirmed, and Mr. Merritt ap-
pealed to this court. Mr. Merritt died while his appeal was
pending. Christina Merritt filed a motion for substitution
arguing that she was the surviving spouse, which we
granted. We now dismiss the appeal as moot because Mrs.
Merritt has not preserved her claim by filing a formal claim
with the Department of Veteran Affairs (“VA”) within one
year of Mr. Merritt’s death as required by the applicable
statutes and regulations.
BACKGROUND
Mr. Merritt served in the U.S. Navy from May 1972 to
September 1973. During the time he was in service, in
March of 1973, Mr. Merritt sustained a concussion in an
automobile accident. In October 2006, a VA psychologist
who had been treating Mr. Merritt for approximately a
year prepared a note (“the VA psychology note”) stating
that Mr. Merritt had shown “[s]ymptoms of bipolar disor-
der[, which] first began when Mr. Merritt . . . was on active
duty in the Navy,” and that Mr. Merritt’s “work perfor-
mance began to suffer” after the in-service accident.
J.A. 19.
In March 2010, Mr. Merritt filed for disability benefits
for “[b]ipolar disorder, anxiety[,] and personality
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MERRITT v. WILKIE 3

disorders.” J.A. 24. The Board determined that Mr. Mer-
ritt’s psychiatric disorders were not service connected. The
Board’s decision acknowledged the existence of the VA psy-
chology note but did not discuss whether the note estab-
lished a medical nexus between Mr. Merritt’s bipolar
disorder and in-service accident. Instead, the Board’s de-
termination relied solely on an independent medical expert
opinion, which stated that Mr. Merritt’s “behavior during
his period in the service was not connected to a bipolar dis-
order or any other psychiatric disorder other than a per-
sonality disorder,” and that it was “at least as likely as not
that any current psychiatric disorder was neither caused
[n]or aggravated by the Veteran’s period of military ser-
vice.” J.A. 68.
Mr. Merritt appealed to the Veterans Court, which va-
cated and remanded the Board’s decision for failing to
“meaningfully discuss the [VA psychology note] or explain
whether it [wa]s an adequate nexus opinion.” J.A. 86. On
remand, the Board again denied Mr. Merritt’s claim, stat-
ing that the VA psychology note was entitled “little, if any,
probative weight,” apparently because there was “no evi-
dence that, at the time of the rendering of that opinion, the
[VA psychologist] had access to either [Mr. Merritt]’s
claims file or his service treatment records,” J.A. 101, and
there was a discrepancy between the VA psychology note
and Mr. Merritt’s treatment records “as to the length of
time [that] Mr. Merritt was unconscious from the concus-
sion sustained in the automobile accident,” J.A. 4. Mr.
Merritt appealed to the Veterans Court for a second time,
arguing that the Board had failed to follow the Veterans
Court’s remand order.
On July 26, 2018, the Veterans Court affirmed the
Board’s decision. The Veterans Court found that the Board
had not complied with the remand order, because even if
the VA psychologist lacked access to the service records
and even if the VA psychology note had “a factual inaccu-
racy,” the Board still had an obligation to “explain why it
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4 MERRITT v. WILKIE

apparently regarded that inaccuracy as critical to the
nexus analysis” before finding that the note was entitled to
no probative weight. J.A. 4–5. The Veterans Court found,
however, that the Board’s error was harmless, because
even if the Board had considered the VA psychology note,
it “described no symptoms that . . . supported . . . a retro-
spective diagnosis” of bipolar disorder, and “there [was] no
possibility that the Board could have awarded service con-
nection based on [the VA psychology note].” 1 J.A. 5–6.
On October 17, 2018, Mr. Merritt filed a notice of ap-
peal with this court. Mr. Merritt died on November 10,
2018. On December 19, 2018, Mrs. Merritt filed a motion
to substitute herself as the surviving spouse. Mrs. Mer-
ritt’s motion included Mr. Merritt’s death certificate. This
court granted Mrs. Merritt’s motion under Federal Rule of
Appellate Procedure 43(a)(1).
On appeal, Mrs. Merritt argues that (1) the Veterans
Court had failed to enforce its own remand order and
(2) the Veterans Court lacked authority to consider the
question of harmless error because 38 U.S.C. § 7261(b)(2),
which requires the Veterans Court to “take due account of
the rule of prejudicial error,” “has no applicability in the
context of an appeal in which the issue is the enforcement
of the appellant’s right to compliance with the [Veterans]
Court’s prior remand order.” Appellant’s Reply Br. 14.
DISCUSSION
“[E]very federal appellate court has a special obligation
to ‘satisfy itself . . . of its own jurisdiction[] . . . ’ even though

1 The Veterans Court also stated that a medical ex-
amination report would not be “entitled to any weight in a
service-connection or rating context if it contains only data
and conclusions.” J.A. 5 (quoting Nieves-Rodriguez v.
Peake, 22 Vet. App. 295, 304 (Ct. Vet. App. 2008)). This
statement appears to be questionable.
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MERRITT v. WILKIE 5

the parties are prepared to concede it.” Bender v. Wil-
liamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting
Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). “[W]here[]
. . . the underlying controversy is . . . moot, the preferred
course is to decide mootness, before reaching difficult ques-
tions more closely tied to the merits of the underlying con-
troversy, such as subject matter jurisdiction.” Kaw Nation
v. Norton, 405 F.3d 1317, 1323 (Fed. Cir. 2005).
I
We begin with a brief description of the statutory and
regulatory background:
When a veteran dies, his right to continuing disa-
bility compensation ends. See 38 U.S.C.
§ 5112(b)(1) (providing that a veteran’s right to dis-
ability compensation terminates on the last day of
the month before the veteran’s death). Pursuant to
38 U.S.C. § 5121, however, certain individuals—
typically the surviving spouse—have the right to
obtain the accrued benefits that were due and pay-
able to the veteran at the time of his death.
Reeves v. Shinseki, 682 F.3d 988, 993 n.3 (Fed. Cir. 2012)
(emphasis added).
Mrs. Merritt argues that she is the surviving spouse
and that she is entitled to pursue a claim for Mr. Merritt’s
“accrued benefits.” The government argues that Mrs. Mer-
ritt has not established that she is the veteran’s surviving
spouse. It points to an apparent inconsistency in the death
certificate that Mrs. Merritt submitted in her motion for
substitution, which identified Mr. Merritt’s spouse as
“Christina Prewitt.” It argues that Mrs. Merritt “has not
furnished any independent evidence” resolving this appar-
ent inconsistency on the death certificate. Gov’t’s Br. 19.
We need not address these arguments, because Mrs. Mer-
ritt has not preserved her claim for accrued benefits under
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6 MERRITT v. WILKIE

the statute and regulation by filing a claim for accrued ben-
efits within the statutory time limit.
II
Even if we assume that Mrs. Merritt was the surviving
spouse and has therefore properly substituted herself un-
der Federal Rule of Appellate Procedure 43(a)(1), that sub-
stitution does not itself grant entitlement. Substitution is
not the same as entitlement. Procedural rules such as Rule
43(a)(1) “do[] not resolve the question [of] what law of sur-
vival of actions should be applied in [a] case.” Robertson v.
Wegmann, 436 U.S. 584, 587 n.3 (1978) (second alteration
in original) (quoting Shaw v. Garrison, 545 F.2d 980, 982
(5th Cir. 1977)). Instead, they “simply describe[] the man-
ner in which parties are to be substituted in federal court
once it is determined that the applicable substantive law
allows the action to survive a party’s death.” Id. (quoting
Shaw, 545 F.2d at 982); see also Reeves, 682 F.3d at 992
(“[T]he question of substitution is separate from that of
standing.” (quoting Richard v. West, 161 F.3d 719, 722
(Fed. Cir. 1998))). Mrs. Merritt must show that she is en-
titled to Mr. Merritt’s claim under the applicable statutes
and regulations. 2
III
In general, “a specific claim in the form prescribed by
the Secretary [of the VA] . . . must be filed in order for ben-
efits to be paid or furnished to any individual under the
laws administered by the Secretary.” 38 U.S.C.

2 We note that 38 U.S.C. § 5121A, which provides for
substitution in VA proceedings, is consistent with this re-
quirement. Section 5121A provides that, even after substi-
tution is granted, entitlement is “determined in accordance
with [38 U.S.C. §] 5121 [(providing for the eligibility of a
surviving spouse for accrued benefits)].” 38 U.S.C.
§ 5121A(b).
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MERRITT v. WILKIE 7

§ 5101(a)(1)(A); see also 38 C.F.R. §§ 3.155, 3.160. Further-
more, an application for accrued benefits “must be filed
within one year after the date of death [of the veteran ben-
eficiary].” Id. § 5121(c). These requirements apply to all
pending claims by the deceased veteran.
Mrs. Merritt does not meaningfully dispute that the
claim filing requirements apply to pending actions. 3 But
she argues that, under Reeves, her motion for substitution
constitutes the filing of a claim under the statute. Reeves
involved a similar situation where a veteran-claimant died
shortly after filing a notice of appeal with this court.
Reeves, 682 F.3d at 992. The veteran’s surviving spouse
filed a motion to be substituted for her husband’s appeal,
and the government argued that the surviving spouse
lacked standing to be substituted because she had not yet
filed an accrued benefits claim. Id. at 992–93. We held
that “[e]ven assuming arguendo that standing can be es-
tablished only if a surviving spouse files an accrued-bene-
fits claim, [the surviving spouse’s] motion to be substituted
for her husband qualifie[d] as an informal claim for accrued
benefits.” Id. at 993.
Reeves is of no help to Mrs. Merritt because it was de-
cided under an earlier version of the applicable regulation.
See Reeves, 682 F.3d at 993 (citing 38 C.F.R. § 3.155
(2011)). That regulation created an “informal claim”
framework, where “any communication can qualify for an
informal claim if it: (1) is in writing; (2) indicates an intent
to apply for veterans’ benefits; and (3) identifies the partic-
ular benefits sought.” Id. It was under this informal claim

3 At oral argument, counsel for Mrs. Merritt con-
tended that Mrs. Merritt was not required to file a claim
for accrued benefits because there was “nothing pending
before the VA.” Oral Arg. at 00:46–50, available at
http://www.cafc.uscourts.gov/node/26086. We see no basis
for such a distinction.
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8 MERRITT v. WILKIE

framework that we held that a motion for substitution
“qualifie[d] as an informal claim for accrued benefits.” Id.
And even under the earlier regulation, we noted that a sur-
vivor might “forfeit all right to relief” for failing to file a
formal claim with the VA “within one year of [the] veteran’s
death” under 38 U.S.C. § 5121(c). Reeves, 682 F.3d at
995 n.5.
In 2015, the VA revised 38 C.F.R. §§ 3.155 and 3.160 to
“require that claims be submitted on a specific form pre-
scribed by [the] VA, effectively ending the practice of ‘infor-
mal claims.’” Shea v. Wilkie, 926 F.3d 1362, 1366 n.3 (Fed.
Cir. 2019). That framework was replaced by the “intent to
file a claim” framework prescribed in the new regulation.
Veterans Justice Grp., LLC v. Sec’y of Veterans Affairs, 818
F.3d 1336, 1342–43 (Fed. Cir. 2016). Now, if a survivor has
not filed a formal claim, he or she may still preserve the
claim by submitting an “intent to file a claim” within the
one-year period after the veteran’s death. See 38 C.F.R.
§ 3.155(b) (effective 2015) (providing that, if a claimant
complies with the regulation’s other requirements, the “VA
will consider the complete claim filed as of the date the in-
tent to file a claim was received”); 38 U.S.C § 5121(c). We
upheld the validity of these revisions on the ground that
Congress did not codify the “informal claim” framework.
Veterans Justice Grp., 818 F.3d at 1346–1350. Thus, a sur-
vivor can no longer preserve a claim for accrued benefits by
filing an informal claim within one year of the veteran’s
death.
Mrs. Merritt did not file a formal claim with the VA
within one year of Mr. Merritt’s death, as the parties agree.
See Oral Arg. at 0:34–45 (when asked if Mrs. Merritt had
“filed a claim for accrued benefits with the VA,” counsel for
Mrs. Merritt responded “no”); id. at 20:50–21:13 (counsel
for the government stating “[Mrs. Merritt] did not file the
appropriate application” within the “one-year deadline”).
When this court asked whether, “if we hold that you had to
file within the one-year period, this case is moot,” counsel
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MERRITT v. WILKIE 9

for Mrs. Merritt responded “[t]hat would be true.” Id. at
31:00–31:11.
Even assuming Mrs. Merritt’s motion for substitution
constituted an “intent to file a claim” under § 3.155, 4 she
still cannot meet the regulatory requirement that she file
a “complete application form” within one year of submit-
ting her intent to file a claim. 38 C.F.R. § 3.155(b)(4) (“If
. . . a complete claim is not filed within 1 year of the receipt
of an intent to file a claim, [the] VA will not take further
action unless a new claim or a new intent to file a claim is
received.”); 38 U.S.C. § 5121(c) (requiring claims for ac-
crued benefits to be filed “within one year after the date of
death”). Here, even treating Mrs. Merritt’s motion for sub-
stitution as an intent to file a claim, she did not file a com-
plete application within one year of filing her motion for
substitution.
IV
Finally, there is the question of 38 U.S.C.
§ 5101(a)(1)(B), which was enacted in 2016 and provides
that the “Secretary [of the VA] may pay benefits [including
accrued benefits] . . . to a survivor of a veteran who has not
filed a formal claim if the Secretary determines that the
record contains sufficient evidence to establish the entitle-
ment of the survivor to such benefits.” 38 U.S.C.
§ 5101(a)(1)(B)(i). Mrs. Merritt did not rely on this section
of the statute in her opening brief. After oral argument, we
ordered supplemental briefing addressing the applicability

4 The current regulation specifies that only three
types of communications may constitute an intent to file a
claim: (1) an electronic application through the VA website,
(2) an “intent to file a claim form” prescribed by the VA,
and (3) “[o]ral intent communicated to designated VA per-
sonnel and recorded in writing.” 38 C.F.R. § 3.155(b)(1)(i)–
(iii).
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10 MERRITT v. WILKIE

of the statute to Mrs. Merritt’s accrued benefits claim in
this case. In her supplemental brief, Mrs. Merritt argued
for the first time that § 5101(a)(1)(B) “renders it unneces-
sary for [her] to file a . . . claim for accrued benefits . . .
within one year of Mr. Merritt’s death.” Appellant’s Supp.
Br. 6. We conclude that § 5101(a)(1)(B) is irrelevant here.
Congress enacted § 5101(a)(1)(B) as an informal claim
process to “[e]xpedite payment of survivor’s benefits” rec-
ognizing that the then-existing “system for processing sur-
vivor’s benefits [wa]s inefficient because VA employees
[we]re required to review paperwork that may already be
in the veteran’s file” and required the survivor to “resubmit
documents that may already be in [the] VA’s possession.”
H.R. Rep. No. 114-405, at 23 (2016). Section 5101(a)(1)(B)
was intended to serve as an alternative claim process when
the “VA has the information necessary to establish entitle-
ment to benefits,” allowing the survivor to claim accrued
benefits without filing duplicative paperwork. Id.; see also
Reeves, 682 F.3d at 993 n.3 (noting that a survivor’s ac-
crued benefits claim “incorporates any prior adjudications
of the service-connection issue on claims brought by the
veteran” (quoting Padgett v. Nicholson, 473 F.3d 1364,
1369 (Fed. Cir. 2007))).
While it is true that Mrs. Merritt served Mr. Merritt’s
death certificate on the VA, there was no argument in Mrs.
Merritt’s opening brief that she sought benefits pursuant
to § 5101(a)(1)(B), or that the Secretary has made a “deter-
mination” pursuant to § 5101(a)(1)(B)(i). Thus, Mrs. Mer-
ritt, having failed to make an argument under
§ 5101(a)(1)(B), we need not decide whether such a deter-
mination by the Secretary under § 5101(a)(1)(B)(i) (declin-
ing the payment of accrued benefits) would be appealable
to the Veterans Court and, by extension, this court. We
simply hold that where, as here, the surviving spouse seeks
survivorship benefits pursuant to § 5121, § 5101(a)(1)(B)
does not excuse her failure to file a formal claim within one
year after the veteran’s death.
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MERRITT v. WILKIE 11

We conclude that § 5101(a)(1)(B) does not prevent this
case from becoming moot.
The case is dismissed as moot because Mrs. Merritt did
not preserve her claim for accrued benefits by filing a for-
mal claim within one year of Mr. Merritt’s death as re-
quired under 38 U.S.C. § 5121(c).
DISMISSED
COSTS
No costs.