Veteranclaims’s Blog

June 11, 2019

substitution motion; Padgett v. Nicholson, 437 F.3d 1364, 1367-71 (Fed. Cir. 2007); 38 U.S.C. § 5121A; Veterans’ Benefits Improvement Act of 2008, codified at 38 U.S.C. § 5121A;

Filed under: Uncategorized — veteranclaims @ 4:10 pm


relevant law, citations

… , surviving spouse of the Veteran, moves the Court for an order substituting he/her as the Appellant in place of the Veteran and is eligible for substitution under 38 U.S.C. § 5121A.


Pursuant to the Veterans’ Benefits Improvement Act of 2008, codified at 38
U.S.C. § 5121A, an accrued benefits claimant has the right to be substituted for a deceased claimant if: (1) the claimant died on or after October 10, 2008; (2) the claimant died while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending; (3) the movant is a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121(a); and (4) the motion is filed not later than one year after the date of death of the claimant. 38 U.S.C. § 5121A(a)(1). Section 5121(a) states that due and unpaid periodic monetary benefits that a veteran was entitled to at death may be paid to the Veteran’s surviving spouse. See 38 U.S.C. § 5121(a). In Padgett v. Nicholson, 437 F.3d 1364, 1367-71 (Fed. Cir. 2007), the Federal Circuit established a test to determine whether a surviving spouse should be substituted in a case. First, it stated that the case or controversy requirement must be met. Id. at 1370. Second, the surviving spouse must prove he or she was adversely affected by the Board’s decision. Id.

In Breedlove v. Shinseki, 24 Vet.App. 7, 8 (2010) (per curiam order), the Court held that the enactment of 38 U.S.C. § 5121A, although not directly applicable to the Court, nonetheless altered the underpinnings of the Court’s jurisprudence on substitution. “A veteran’s chapter 11 disability benefits claim survives the death of the veteran, not for the purpose of providing VA benefits to a veteran, but for purposes of furthering the processing of the claim of an eligible accrued-benefits claimant.” Breedlove, 24 Vet.App. at 8.


In a motion for substitution, (1) the Court will obtain from the Secretary a determination as to whether a particular movant is an eligible accrued benefits claimant; and (2) if status as a potential accrued-benefits claimant is established, then standing is established, and the Court will generally permit substitution, subject to a judicial decision that it is the appropriate course of action in the particular case as a matter of the Court’s discretion. Id. at 20-21.

See Reeves v. Shinseki, 682 F.3d 988, 994 (Fed. Cir. 2012) (holding that although there may be situations in which a remand is appropriate because the question of whether the survivor is eligible to receive accrued benefits is in dispute, it was not necessary in Mrs. Reeves’s case because there was no question that she was an eligible substitute).

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