Thomas Smith v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 18-4730

THOMAS SMITH, APPELLANT,

V.

DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before GREENBERG, ALLEN, and FALVEY, Judges.

OR D ER

FALVEY, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting
opinion.

Air Force veteran Thomas Smith appealed a Board of Veterans' Appeals decision denying
him specially adapted housing (SAH) benefits. Unfortunately, Mr. Smith passed away before the
case was briefed and before the Court could reach the merits of his claim. His adult daughter,
Christine Hicks, has moved to be substituted as appellant in his place. We are asked to decide
whether the law allows this substitution.

Ms. Hicks's motion highlights some unresolved questions in our substitution doctrine. One
question is whether 38 U.S.C. § 5121A allows us to substitute parties when a claim, like the one
here, is for a one-time, lump-sum benefits payment rather than for recurring, periodic benefits
payments. Another is whether this substitution is alternatively permitted under Padgett v.
Nicholson, 473 F.3d 1364, 1367 (Fed. Cir. 2007), and its progeny, a body of law that preceded
section 5121A and allowed the Court to both issue a decision and grant substitution nunc pro tunc
to a date before the veteran's death. Because of its potential legal complexities, the motion was
sent to a panel of the Court for a decision. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).

Ultimately, we need not answer any broad questions about substitution to resolve Ms.
Hicks's motion. After reviewing the parties' filings and hearing oral argument, the Court concludes
that Ms. Hicks fails to show that she meets any of the possible legal standards for substitution.
Thus, we will deny her motion, vacate the underlying Board decision, and dismiss the appeal.

I. BACKGROUND

The dispute over Mr. Smith's entitlement to SAH benefits dates back more than two
decades. He left active duty in July 1978 and later received service connection for a low back
disability. July 2015 Board Decision (Bd. Dec.) at 2, 7. To relieve Mr. Smith's back symptoms, a
VA physician prescribed pool therapy, which the veteran received at a VA facility. Id. at 7. But
the VA pool eventually became unavailable to Mr. Smith and he decided to build his own. Id. At
least as early as December 1999, he sought VA funding to build a home therapy pool. Id.
 But before receiving VA approval, Mr. Smith built his therapy pool in June 2007 as an
outbuilding at his home and took out a mortgage to finance it. Id. at 8. In March 2010, he filed the
claim now on appeal, seeking SAH benefits as a reimbursement of his costs to build the home
therapy pool. Id. The regional office denied the claim and the veteran appealed to the Board. On
July 29, 2015, the Board denied SAH benefits. Id. at 10. And in May 2018, the Board Chairman
denied reconsideration. May 2018 Reconsideration Dec. at 2.

In August 2018, Mr. Smith, through counsel, appealed to the Court. Unfortunately, in June
2019, before either party had submitted a merits brief, the veteran passed away. Later that month,
the Court ordered the appellant's counsel to show cause why the Court should not vacate the
Board's decision and dismiss the appeal. In October 2019, the appellant's counsel responded that
one of Mr. Smith's adult children should be substituted for him. Response (Resp.) to June 2019
Order at 2-7. In November 2019, the Court ordered the Secretary to respond to the appellant's
counsel's filing.

In January 2020, the Secretary responded that the Board decision should be vacated and
the appeal dismissed because the appellant's counsel had not moved for an eligible accrued-
benefits claimant to be substituted before the Court. Resp. to Nov. 2019 Order at 1-3 (citing
Breedlove v. Shinseki, 24 Vet.App. 7, 21 (2010)). The Secretary stated that VA must determine a
person's eligibility as an accrued-benefits claimant under 38 U.S.C. § 5121 before that person can
be substituted under Breedlove. Id. at 3. But, the Secretary asserted, Breedlove only allows
substitution for accrued benefits—not for non-accrued benefits. Id.

On January 22, 2020, the appellant's counsel moved to substitute Ms. Hicks as the appellant
before this Court. Motion for Substitution at 1. In September 2020, Ms. Hicks responded to a July
2020 Court order and argued that she should be substituted under Breedlove because she is a person
eligible to receive accrued benefits. Resp. to July 2020 Order at 2-3.

In December 2020, the Secretary informed the Court that Ms. Hicks had failed to file an
application with VA to determine her eligibility as an accrued-benefits claimant. Resp. to Oct.
2020 Order at 3-6. The Secretary explained that an application for accrued benefits must be filed
within one year of the veteran's death and that, without that application as well as an accrued-
benefits eligibility determination from VA, Ms. Hicks could not be substituted as the appellant
before the Court. Id. at 3-8. The Secretary then asked the Court to deny Ms. Hicks's motion for
substitution. Id. at 8.

In April 2021, the Court ordered Ms. Hicks to inform us whether she had filed an accrued-
benefits application with VA. In her response, Ms. Hicks did not claim that she had applied for
accrued benefits with VA, but she maintained that she was an eligible accrued-benefits recipient
and could be substituted as appellant. Resp. to Apr. 2021 Order at 1-14.

In June 2022, after finding that Ms. Hicks's motion might require us to address novel
questions about our substitution doctrine, the Court convened a panel to decide the motion. The
Court heard oral argument on September 6, 2022.

2
 During oral argument, the Court ordered the Secretary to file copies of any letters sent to
Ms. Hicks or Mr. Smith's estate with instructions for continuing the appeal after the veteran's death.
The Court also ordered Ms. Hicks to file a copy of any application for accrued benefits that she
had submitted to VA as well as a copy of an order appointing her as the personal representative of
Mr. Smith's estate.

In response, the Secretary submitted copies of two July 2019 letters advising Mr. Smith's
estate that a person eligible to receive accrued benefits might be able to substitute for his claim
and providing a web address for a VA fact sheet with more information about submitting an
application for accrued benefits. Secretary's Resp. to Filing Order Exhibits (Exs.) B, C. Ms. Hicks
filed a copy of a District of Columbia Superior Court order appointing her as the personal
representative for the veteran's estate and a copy of a January 2020 VA Form 21-22a (Appointment
of Individual as Claimant's Representative) listing Ms. Hicks as claimant and the appellant's
counsel as her appointed representative. Proposed Substitute-Appellant's Resp. to Filing Order
Exs. 1, 2. But she provided no evidence of having applied for accrued benefits before VA, although
she attached another 13 exhibits and included a section of argument addressing those exhibits. See
id. at 2-10; Exs. 3-15.

On September 23, 2022, the Secretary filed an opposed motion to strike the section of
argument in Ms. Hick's response as well as her "approximately 100 pages of exhibits" that the
Secretary deemed unresponsive to the Court's filing order. Opposed Motion to Strike at 3. On
October 5, 2022, Ms. Hicks filed her opposition to the motion to strike, asserting that the additional
documents and argument were intended to inform the Court about "important questions . . . that
either were not briefed or not fully addressed at oral argument." Opposition to Motion to Strike at
9. We will address this motion below.

II. PARTIES' ARGUMENTS

Ms. Hicks offers three potential grounds for her to be substituted in her late father's appeal.
First, she asserts that she can be substituted under the Court's substitution doctrine as explained in
Breedlove. Resp. to April 2021 Order at 9-12. She claims that 38 U.S.C. § 5121A, which informed
the Court's decision in Breedlove, allows substitution in "a claim for any benefit under a law
administered by the Secretary," 38 U.S.C. § 5121A (emphasis added), if the substitute-claimant is
eligible to receive accrued benefits under 38 U.S.C. § 5121. Resp. to April 2021 Order at 10. And
she argues that she is eligible to receive accrued benefits under section 5121 because she bore the
expenses of Mr. Smith's last sickness and burial. Resp. to April 2021 Order at 11-12 (citing 38
U.S.C. § 5121(a)(6)). Thus, she contends, she should be able to substitute in his claim for SAH
benefits. Id.

Second, Ms. Hicks argues that she can be substituted for Mr. Smith through nunc pro tunc
relief under the body of law that we routinely applied before we decided Breedlove. Id. at 6-9. She
notes that, although parties rarely seek nunc pro tunc relief instead of substitution under Breedlove
and section 5121A, Breedlove did not overrule the prior body of law, and we have not held that
substitution is unavailable in claims for one-time benefits. Id. at 6, n.7; see Suguitan v. McDonald,
27 Vet.App. 114, 118-19 (2014). She asserts that she satisfies the pre-Breedlove test for nunc pro

3
tunc relief and that this is a proper basis for the Court to substitute her as appellant. Resp. to April
2021 Order at 7-9; see Suguitan, 27 Vet.App. at 119.

Third, Ms. Hicks contends that she can be substituted under Rule 43(a)(2) of the Court's
Rules of Practice and Procedure because she is the personal representative of Mr. Smith's estate.
Resp. to April 2021 Order at 4-6. She notes that Rule 43(a)(2) allows substitution by "'the personal
representative of the deceased party's estate [. . .] to the extent permitted by law'" and asserts that
she is permitted by law to substitute because of her standing as a person who would receive part
of any benefits awarded to Mr. Smith's estate. Id. (quoting U.S. VET. APP. R. 43(a)(2)). Once she
is substituted as the personal representative of Mr. Smith's estate, Ms. Hicks contends, the estate
can, under 38 C.F.R. § 36.4406(c), receive reimbursement of any undisbursed SAH benefits. See
Resp. to April 2021 Order at 12-13; Oral Argument at 16:18-17:13; see also 38 C.F.R. § 36.4406(c)
(2022).

The Secretary opposes the motion for substitution. He contends that substitution under
section 5121A and Breedlove applies only to periodic benefits and that SAH is a nonperiodic
benefit. Resp. to March 2020 Order at 3; Secretary's Resp. to Nov. 2019 Order at 2-3. Thus, he
asserts, substitution is not warranted here regardless of Ms. Hicks's eligibility as an accrued-
benefits claimant. Resp. to March 2020 Order at 3; Resp. to Nov. 2019 Order at 2-3. What's more,
the Secretary argues, Ms. Hicks never applied for a VA determination of her eligibility as an
accrued benefits claimant. Resp. to Oct. 2020 Order at 3-5. Because of this, the Secretary argues,
Ms. Hicks does not qualify to be substituted. Id. at 4-7. The Secretary also argues that nunc pro
tunc relief is unavailable to Ms. Hicks because she lacks standing. Resp. to March 2020 Order at
4.

III. DISCUSSION

Before considering the merits, we will first address the Secretary's pending opposed motion
to strike. The Secretary expresses concern that Ms. Hicks's counsel has submitted a substantive
response and numerous documents that are outside the scope requested in the Court's order. We
agree with the Secretary that the response went beyond what the Court requested and certainly
beyond what Ms. Hicks's counsel alluded to during oral argument. As an experienced attorney,
Ms. Hicks's counsel should understand that submitting unsolicited evidence and argument—
especially after oral argument—is inappropriate. See Carbino v. West, 168 F.3d 32, 34 (Fed. Cir.
1999) ("An improper or late presentation of an issue or argument . . . ordinarily should not be
considered."), aff'g Carbino v. Gober, 10 Vet.App. 507, 511 (1997); Fugere v. Derwinski, 1
Vet.App. 103, 105 ("Advancing different arguments at successive stages of the appellate process
does not serve the interests of the parties or the Court. Such a practice hinders the decision-making
process and raises the undesirable specter of piecemeal litigation."). That said, because our
disposition of this matter does not involve the parts of Ms. Hick's September 14, 2022, response
that the Secretary moves to strike, we will deny the motion to strike as moot. We now turn to the
merits.

The party moving for substitution bears the burden of showing that substitution is proper.
Nat'l Org. of Veterans Advocs., Inc. v. Sec'y of Veterans Affs., 809 F.3d 1369, 1362 (Fed. Cir.
2016) (NOVA); Sucic v. Shulkin, 29 Vet.App 121, 126 (2017). Similarly, a party seeking to

4
substitute through nunc pro tunc relief bears the burden of persuasion. See Suguitan, 27 Vet.App.
at 119 (finding that a party did not meet his burden of showing that he was eligible for nunc pro
tunc relief). Thus, it is Ms. Hicks's burden to show that she can be substituted.

A. Substitution Under Breedlove

We first consider Ms. Hicks's argument that she can be substituted under Breedlove
because she is an eligible accrued-benefits claimant. We recognized in Breedlove that, although
section 5121A does not bind the Court, Congress's enactment of the statute in 2008 "alter[ed] the
underpinnings of th[e] Court's jurisprudence on substitution" and allowed eligible accrued-benefits
beneficiaries to be substituted as parties before the Court. 24 Vet.App. at 8. Although Breedlove
addressed section 5121A substitution in claims for periodic benefits, our caselaw has not clarified
whether it is available in claims for nonperiodic benefits like the one here. In Suguitan, without
holding either way, the Court accepted the proposed substitute-appellant's concession that section
5121A and Breedlove do not allow substitution when the claim is for a nonperiodic, lump-sum
payment. Suguitan, 27 Vet.App. at 118.

Unlike the proposed substitute-appellant in Suguitan, Ms. Hicks here asserts that section
5121A and by extension Breedlove allow substitution in claims for nonperiodic benefits. Resp. to
July 2020 Order at 2-3. She notes that section 5121A allows substitution when "a claimant dies
while a claim for any [VA] benefit" is pending as long as the proposed substitute is a person "'who
would be eligible to receive accrued benefits under section 5121(a).'" Id. at 2 (quoting 38 U.S.C.
§ 5121(a) (emphasis added)). That is, section 5121A does not distinguish between claims for
periodic and nonperiodic benefits and allows substitution in claims for either. According to this
argument, if a proposed substitute-appellant would be eligible to receive hypothetical accrued
benefits under section 5121(a), then that person can be substituted under Breedlove and section
5121A, regardless of whether the actual claim is for periodic or nonperiodic benefits. Id. at 2-3.

Despite any potential merit of Ms. Hicks's argument about the proper reading of Breedlove
and section 5121A, that is a question for another day. On these facts, we need not decide whether
substitution under Breedlove is possible in a claim for nonperiodic benefits. This is because Ms.
Hicks fails to show that she is an eligible accrued-benefits claimant under section 5121, which is
a prerequisite for substitution under Breedlove.

Substitution under Breedlove requires "a determination as to whether a particular movant
is an eligible accrued-benefits claimant." 24 Vet.App. at 20. Eligibility as an accrued-benefits
claimant is "a factual determination that . . . must be made by VA in the first instance" and is
"determined in accordance with section 5121." Id. at 20-21; see 38 U.S.C. § 5121A(b). In turn,
section 5121 provides that "[a]pplications for accrued benefits must be filed within one year after
the date of [the original claimant's] death." 38 U.S.C. § 5121(c); see Breedlove, 24 Vet.App. at 21
(citing section 5121(c)). An application for accrued benefits is no mere formality; it requires the
proposed substitute-appellant to provide evidence of eligibility as an accrued-benefits claimant so
that VA may apply the law to the facts and decide the matter. See 38 C.F.R. § 3.1010(d) (2022);
see also Breedlove, 24 Vet.App. at 20-21.

5
 Here, there is no evidence that, within one year of Mr. Smith's death, Ms. Hicks applied
for a VA determination of her eligibility as an accrued-benefits claimant. This is true even though
the Court provided Ms. Hicks an additional opportunity to submit such evidence. 1 See Proposed
Substitute-Appellant's Resp. to Filing Order Exs. 1-15. Indeed, there is no allegation that she ever
filed or tried to file such an application. Nor is there evidence of a determination by the Secretary
that she is eligible to be substituted. Because a determination of accrued-benefits eligibility under
section 5121 is required for substitution under Breedlove and section 5121A, Ms. Hicks's failure
to timely obtain this determination means that she fails to show that she may be substituted here.2
See 24 Vet.App. at 20; see also NOVA, 809 F.3d at 1362; Zevalkink v. Brown, 102 F.3d 1236, 1244
(Fed. Cir. 1996) (noting that this Court cannot make the factual determination of a person's
eligibility as an accrued-benefits claimant).

B. The Nunc Pro Tunc Standard

Ms. Hicks also argues that she may be substituted through the Court's application of nunc
pro tunc relief. Resp. to April 2021 Order at 6-9. She notes that, even after Breedlove articulated
the Court's substitution doctrine based on section 5121A, Suguitan relied on the Padgett line of
cases to consider relief on a nunc pro tunc basis, although the Suguitan Court denied such relief.
Id. at 6-7; see Suguitan, 27 Vet.App. at 119. And she asserts that she satisfies the nunc pro tunc
standard laid out in the Court's caselaw. Resp. to April 2021 Order at 7-9.

Drawing from prior cases, the Suguitan Court summarized the nunc pro tunc standard as
having three elements: "(1) that the veteran died after the case was submitted to this Court for
decision; (2) that substitution is appropriate because the person seeking substitution has standing;
and (3) that considerations of justice and fairness have been satisfied." 27 Vet.App. at 119 (citing
Pekular v. Mansfield, 21 Vet.App. 495, 500 (2007)); see Padgett, 473 F.3d at 1367-69.

Ms. Hicks fails to satisfy the nunc pro tunc standard because Mr. Smith died before the
case was submitted to the Court for a decision. As recognized in cases including Padgett, Pekular,
and Suguitan, one of the requirements for receiving nunc pro tunc relief is that the case must have

1
During oral argument, the Court provided Ms. Hicks an additional opportunity to submit evidence that she
filed an accrued-benefits application with VA. However, as we already explained, she did not do so. Instead, Ms.
Hicks resubmitted a January 2020 VA Form 21-22a listing Ms. Hicks as claimant and the appellant's counsel as her
appointed representative. This is not the correct form. A VA Form 21-22a is used for appointing an individual as a
representative of a claimant, which is very different from applying for accrued benefits using forms such as VA Form
21P-601, the application form for accrued amounts due a deceased beneficiary or VA Form 21P-534, the application
form for receiving accrued benefits as a surviving spouse or child. Compare VA Form 21-22a (Feb. 2019), available
at https://www.vba.va.gov/pubs/forms/vba-21-22a-are.pdf (last visited Sept. 30, 2022), with VA Form 21P-601 (Aug.
2022), available at http://www.vba.va.gov/pubs/forms/VBA-21P-601-ARE.pdf (last visited Sept. 30, 2022), and VA
Form 21P-534 (Aug. 2021), available at https://www.vba.va.gov/pubs/forms/VBA-21P-534-ARE.pdf (last visited
Sept. 30, 2022).
2
At oral argument, Ms. Hicks's counsel suggested that it would have been futile for Ms. Hicks to file an
accrued-benefits application with VA because VA would have simply denied her claim for SAH benefits as it had
denied Mr. Smith's claim. Oral Argument at 54:00-54:55, 56:54-57:13. But an application for VA to determine one's
eligibility to receive accrued benefits is not a request for a new decision on the merits at the VA level. As explained
in Breedlove, it is a necessary part of the process for seeking substitution in an appeal before this Court. See
24 Vet.App. at 20-21.

6
been submitted to the Court before the veteran's death. See Padgett, 473 F.3d at 1367, 1369;
Suguitan, 27 Vet.App. at 119; Pekular, 21 Vet.App. at 500. A case is "submitted to the Court"
when the appellant's reply brief is filed, the time to file a reply brief expires, or the appellant waives
the right to file a reply brief. Pekular, 21 Vet.App. at 505; see Padgett, 473 F.3d at 1369;
Breedlove, 24 Vet.App. at 8. Here, none of those three events has happened; indeed, the parties
have filed no merits briefs at all. Thus, the case has not been submitted for a decision and Ms.
Hicks cannot receive nunc pro tunc relief. See Pekular, 21 Vet.App. at 505; see also Padgett,
473 F.3d at 1367, 1369.

Ms. Hicks's counsel asserted at oral argument that this first element of nunc pro tunc relief
no longer applies because Breedlove generally eliminated the "zone of no substitution" 3 that
existed before Congress enacted section 5121A and the Court issued Breedlove. Oral Argument at
49:00-50:00. We are not persuaded. This argument asks us to find that Breedlove, with its
reasoning based on section 5121A, overruled Padgett and its progeny, which drew from federal
courts' historical practice of ordering relief on a nunc pro tunc basis to ensure that no prejudice to
the parties resulted from a court's own delay in rendering judgment on a submitted case. See
Padgett, 473 F.3d at 1367 (citing, among others, Mitchell v. Overman, 103 U.S. 62, 64-66 (1880)).

Our decision in Breedlove did not and could not have overruled Padgett, a Federal Circuit
decision holding that this Court can grant nunc pro tunc relief in certain circumstances. It therefore
also did not overrule our cases relying on Padgett and applying the nunc pro tunc standard. See,
e.g., Pekular, 21 Vet.App. at 502-05. Instead, Breedlove began a different line of cases based on a
then-new statute that introduced a separate, alternative basis for substitution. See Breedlove,
24 Vet.App. at 14-21. We see no authority that Padgett and its line of cases governing nunc pro
tunc relief are no longer good law, despite their limited invocation post-Breedlove.4 And this
includes the well-established requirement for nunc pro tunc relief that a case must be submitted
before the veteran's death. 5 See Padgett, 473 F.3d at 1367, 1369; Suguitan, 27 Vet.App. at 119;
Pekular, 21 Vet.App. at 500.

C. Substitution Under Rule 43(a)(2)

Ms. Hicks also argues that she may be substituted under Rule 43(a)(2) of the Court's Rules
of Practice and Procedure. Resp. to April 2021 Order at 4 -6. Under that rule, "the personal
representative of the deceased party's estate or any other appropriate person may, to the extent
permitted by law, be substituted as a party." U.S. VET. APP. R. 43(a)(2) (emphasis added). Ms.
Hicks asserts that Rule 43(a)(2) broadly authorizes substitution and allows her to be substituted

3
The pre-Breedlove "zone of no substitution" refers to when a "veteran died after issuance of the Board
decision but before" the case had been submitted to the Court, making it impossible for the veteran's appeal to meet
the first element of the nunc pro tunc standard. Breedlove, 24 Vet.App. at 20.
4
Given Breedlove's broader standard for substitution, it is unsurprising that few parties have sought nunc pro
tunc relief under Padgett and Pekular in the years since we issued Breedlove.
5
To be clear, our ruling today in no way alters the Breedlove line of cases or imposes a "zone of no
substitution" on motions for substitution under Breedlove. In Breedlove, the Court established a new and doctrinally
separate basis for substitution that avoided the "zone of no substitution" inherent in the nunc pro tunc standard. But as
explained above, Ms. Hicks fails to meet the Breedlove standard.

7
for her father so long as she otherwise satisfies "[t]he general rules for legal standing." Resp. to
April 2021 Order at 5-6.

But Rule 43 is simply a procedural mechanism for substitution. As the Federal Circuit
recently stated when discussing substitution under the Federal Rules of Appellate Procedure,
"[p]rocedural rules . . . do not resolve the question of what law of survival of actions should be
applied in a case . . . but simply describe the manner in which parties are to be substituted." Merritt
v. Wilkie, 965 F.3d 1357, 1360 (Fed. Cir. 2020) (internal alterations and quotations omitted). By
allowing substitution "to the extent permitted by law," Rule 43(a)(2) explicitly leaves the
substantive standard for substitution to be filled in by other authorities. U.S. VET. APP. R. 43(a)(2).
And aside from an appeal to equitable considerations, Ms. Hicks provides no authority why we
should abandon our existing substantive law governing substitution and replace it with a standard
such as "[t]he general rules of legal standing." Resp. to April 2021 Order at 4-6. Her argument on
this point is undeveloped, and we will consider it no further. See Locklear v. Nicholson,
20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain undeveloped arguments).

Finally, even if we assumed that Ms. Hicks could be substituted under Rule 43 and that
VA accepted this substitution for the purpose of granting benefits, she fails to demonstrate that
reimbursement under this avenue would be appropriate. See Hilkert v. West, 12 Vet.App. 145, 151
(1004) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Ms. Hicks contends that
§ 36.4406(c) authorizes her, as a representative of Mr. Smith's estate, to receive reimbursement of
SAH benefits. See Resp. to April 2021 Order at 12-13; Oral Argument at 16:18-17:13. Section
36.4406(c) provides:

Should an eligible individual die before the Secretary disburses the full [SAH]
housing grant, the eligible individual's estate must submit to the Secretary all
requests for reimbursement within one year of the date the Loan Guaranty Service
learns of the eligible individual's death. Except where the Secretary determines that
equity and good conscious require otherwise, the Secretary will not reimburse an
eligible individual's estate for a request that has not been received by [VA] within
this time frame.

38 C.F.R. § 36.4406(c). To be clear, § 36.4406(c) specifically requires a request for reimbursement
to be filed with VA within one year of the eligible recipient's death. Similarly as with the accrued-
benefits theory addressed in Part III.A above, there is no evidence that Ms. Hicks submitted an
application for reimbursement within one year of Mr. Smith's death.

IV. CONCLUSION

After reviewing the parties' filings and hearing oral argument, the Court concludes that Ms.
Hicks is entitled to neither substitution under Breedlove nor nunc pro tunc relief. Thus, we will
deny the motion for substitution, vacate the Board's decision, and dismiss this appeal. See
Suguitan, 27 Vet.App. at 123; Breedlove, 24 Vet.App. at 21.

On consideration of the above, it is

8
 ORDERED that the Secretary's September 23, 2022, opposed motion to strike is denied as
moot. It is also

ORDERED that Ms. Hicks's January 22, 2020, motion for substitution is denied. It is also

ORDERED that the July 29, 2015, Board decision is VACATED. It is also

ORDERED that this appeal is DISMISSED.

DATED: October 17, 2022

GREENBERG, Judge, dissenting: Today was an opportunity to clarify the Court's holding
in Breedlove v. Shinseki, 24 Vet.App. 7, 21 (2010), and address the appellant's claim on the merits.
I believe that the appellant is an eligible substitute party because she bore the expense of her
father's last sickness. The Court should have considered the filing of the motion to substitute
within a year consistent with Breedlove and congressional intent. Instead, the majority has created
new case law rather than relying on precedent. Breedlove does not require a claimant to file an
application for accrued benefits within one year after the date of the original claimant's death in
order to be granted substitution at the Court. Instead Breedlove provides:

The Court must first obtain from the Secretary a determination as to whether a
particular movant is an eligible accrued-benefits claimant. This is a factual
determination that, unless conceded by the Secretary on appeal, must be made by
VA in the first instance. Those who are eligible to make a claim for accrued benefits
are determined in accordance with [38 U.S.C. §] 5121. This Court may remand the
question of whether a person qualifies as an accrued benefits claimant, stay the
appeal until a determination by VA is made, or direct the Secretary to inform the
Court of his determination within a set period of time. See Zevalkink [v. Brown],
102 F.3d [1236] 1244 [(Fed. Cir. 1996)].

24 Vet.App. at 20-21 (emphasis added). The above citation to section 5121 could only apply to
section 5121(a) as this is the only section that pertains to who may "make a claim" for accrued
benefits. The lone citation to section 5121(c) is part of the majority misreading of this sentence.
The Breedlove Court stated:

We note that if, when a veteran has died while an appeal is pending here, no one
seeks substitution or the person seeking substitution is not an eligible accrued-
benefits claimant, then Board vacatur and dismissal of the appeal would be the
appropriate action. See [United States v.] Munsingwear, 340 U.S. 36, 41, 71 S.Ct.
104 (1950); see Padgett [v. Nicholson], 473 F.3d [1376,] 1370[(Fed. Cir. 2007)]
("Absent substitution, we would face the scenario contemplated by
Munsingwear."); see also 38 U.S.C. § 5121(c)("Applications for accrued benefits
must be filed within one year after the date of death.").

Id. at 21 (emphasis added). The sentence exclusively deals with substitution at the Court and the
appropriate remedy when a claimant does not seek substitution or an ineligible claimant seeks to
be substituted. The Court should have clarified today that, under Breedlove, claimants had one

9
year to file a motion to substitute with the Court and that nothing has to be filed with VA. This
would have been consistent with Breedlove's holding that 38 U.S.C. § 5121A does not apply to the
Court. See 24 Vet.App. at 8. The appellant filed her motion within one year of her father's death
and VA was therefore timely notified of her desire to seek substitution at the Court. The Court
should have considered her claim on the merits and, for this reason, I dissent.

10