Veteranclaims’s Blog

July 17, 2020

FedCir; Merritt v. Wilkie, No. 2019-1095(Decided: July 17, 2020); failure to preserved substitution claim by filing a formal claim with the Department of Veteran Affairs (“VA”) within one year of death; 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)); an application for accrued benefits “must be filed within one year after the date of death [of the veteran beneficiary].” Id. § 5121(c);

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. Davis.


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, Washington,
DC, argued for respondent-appellee. Also represented
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: 1 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 original
claimant in this case, filed an application for serviceconnected
benefits. The Board of Veterans’ Appeals
(“Board”) held that Mr. Merritt had not established entitlement.
The United States Court of Appeals for Veterans
Claims (“Veterans Court”) affirmed, and Mr. Merritt appealed
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 disorder[,
which] first began when Mr. Merritt . . . was on active
duty in the Navy,” and that Mr. Merritt’s “work performance
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
Case: 19-1095 Document: 58 Page: 2 Filed: 07/17/2020
MERRITT v. WILKIE 3
disorders.” J.A. 24. The Board determined that Mr. Merritt’s
psychiatric disorders were not service connected. The
Board’s decision acknowledged the existence of the VA psychology
note but did not discuss whether the note established
a medical nexus between Mr. Merritt’s bipolar
disorder and in-service accident. Instead, the Board’s determination
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 disorder
or any other psychiatric disorder other than a personality
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 service.”
J.A. 68.
Mr. Merritt appealed to the Veterans Court, which vacated
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, stating
that the VA psychology note was entitled “little, if any,
probative weight,” apparently because there was “no evidence
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 concussion
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 inaccuracy,”
the Board still had an obligation to “explain why it
Case: 19-1095 Document: 58 Page: 3 Filed: 07/17/2020
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 retrospective
diagnosis” of bipolar disorder, and “there [was] no
possibility that the Board could have awarded service connection
based on [the VA psychology note].”1 J.A. 5–6.
On October 17, 2018, Mr. Merritt filed a notice of appeal
with this court. Mr. Merritt died on November 10,

  1. On December 19, 2018, Mrs. Merritt filed a motion
    to substitute herself as the surviving spouse. Mrs. Merritt’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 examination
    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.
    Case: 19-1095 Document: 58 Page: 4 Filed: 07/17/2020
    MERRITT v. WILKIE 5
    the parties are prepared to concede it.” Bender v. Williamsport
    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 questions
    more closely tied to the merits of the underlying controversy,
    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 disability
    compensation ends. See 38 U.S.C.
    § 5112(b)(1) (providing that a veteran’s right to disability
    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 payable
    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. Merritt
    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 apparent
    inconsistency on the death certificate. Gov’t’s Br. 19.
    We need not address these arguments, because Mrs. Merritt
    has not preserved her claim for accrued benefits under
    Case: 19-1095 Document: 58 Page: 5 Filed: 07/17/2020
    6 MERRITT v. WILKIE
    the statute and regulation by filing a claim for accrued benefits
    within the statutory time limit.
    II
    Even if we assume that Mrs. Merritt was the surviving
    spouse and has therefore properly substituted herself under
    Federal Rule of Appellate Procedure 43(a)(1), that substitution
    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 survival
    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 manner
    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 entitled
    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 benefits
    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 requirement.
    Section 5121A provides that, even after substitution
    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).
    Case: 19-1095 Document: 58 Page: 6 Filed: 07/17/2020
    MERRITT v. WILKIE 7
    § 5101(a)(1)(A); see also 38 C.F.R. §§ 3.155, 3.160. Furthermore,
    an application for accrued benefits “must be filed
    within one year after the date of death [of the veteran beneficiary].”
    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 established
    only if a surviving spouse files an accrued-benefits
    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 decided
    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 particular
    benefits sought.” Id. It was under this informal claim
    3 At oral argument, counsel for Mrs. Merritt contended
    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.
    Case: 19-1095 Document: 58 Page: 7 Filed: 07/17/2020
    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 survivor
    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 prescribed
    by [the] VA, effectively ending the practice of ‘informal
    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 intent
    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 survivor
    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
    Case: 19-1095 Document: 58 Page: 8 Filed: 07/17/2020
    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 submitting
    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 accrued
    benefits to be filed “within one year after the date of
    death”). Here, even treating Mrs. Merritt’s motion for substitution
    as an intent to file a claim, she did not file a complete
    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 entitlement
    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 personnel
    and recorded in writing.” 38 C.F.R. § 3.155(b)(1)(i)–
    (iii).
    Case: 19-1095 Document: 58 Page: 9 Filed: 07/17/2020
    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 unnecessary
    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” recognizing
    that the then-existing “system for processing survivor’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 entitlement
    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 accrued
    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 “determination”
    pursuant to § 5101(a)(1)(B)(i). Thus, Mrs. Merritt,
    having failed to make an argument under
    § 5101(a)(1)(B), we need not decide whether such a determination
    by the Secretary under § 5101(a)(1)(B)(i) (declining
    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.
    Case: 19-1095 Document: 58 Page: 10 Filed: 07/17/2020
    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 formal
    claim within one year of Mr. Merritt’s death as required
    under 38 U.S.C. § 5121(c).
    DISMISSED
    COSTS
    No costs.
    Case: 19-1095 Document: 58 Page: 11 Filed: 07/17/2020

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