from the United States Court of Appeals for Veterans Claims
in No. 13-158, Judge Mary J. Schoelen, Judge Coral Wong
Pietsch, Judge William S. Greenberg.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for claimant-appellant.
E. Kurland, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
represented by Robert Edward Kirschman, Jr., Loren Misha
Preheim, Joseph H. Hunt; Amanda Blackmon, Brian D. Griffin,
Derek Scadden, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Prost, Chief Judge, Reyna and Wallach, Circuit Judges.
adult children of deceased veteran Jack Sucic appeal the
final decision of the United States Court of Appeals for
Veterans Claims ("Veterans Court") denying their
motion for substitution. Sucic v. Shulkin, 29 Vet.
App. 121 (2017). Because the Veterans Court did not err in
determining that Mr. Sucic's non-dependent, adult
children do not qualify as accrued benefits beneficiaries
under 38 U.S.C. § 5121(a), we affirm the Veterans
Court's denial of their motion for substitution.
Sucic served on active duty from July 1973 to August 1979 and
from December 1982 to October 1984. J.A. 17. In June 2007, he
was granted service connection for post-traumatic stress
disorder ("PTSD"), effective January 24, 2003.
Id. In June 2008, Mr. Sucic filed a notice of
disagreement, requesting an earlier effective date of June
30, 1992. J.A. 23-26. The Board of Veterans' Appeals
("Board") denied Mr. Sucic's claim for an
earlier effective date. J.A. 30, 39-40. The Veterans Court
affirmed the Board's decision. Sucic v. Gibson,
No. 13-0158, 2014 WL 2926475, at *4 (Vet. App. June 30,
2014), rev'd and remanded, Sucic v.
McDonald, 640 Fed.Appx. 901 (Fed. Cir. 2016). Mr. Sucic
appealed to the Federal Circuit, and in February 2016, we
reversed the Veterans Court's denial of an earlier
effective date and remanded for further development and
determination of the effective date. Sucic v.
McDonald, 640 Fed.Appx. 901, 906 (Fed. Cir. 2016). On
April 8, 2016, our mandate issued.
Veterans Court effectuated our ruling by vacating the
Board's decision and remanding Mr. Sucic's case to
the U.S. Department of Veterans Affairs ("VA") for
further development and determination of the effective date.
Sucic v. McDonald, No. 13-0158, 2016 WL 3035459, at
*2 (Vet. App. May 27, 2016), withdrawn, Sucic v.
Shulkin, 29 Vet. App. 121 (2017). The Veterans Court
entered judgment on June 20, 2016 and issued its mandate on
August 22, 2016.
April 13, 2016, Mr. Sucic died. J.A. 43-46. His death
occurred five days after our mandate issued but before the
Veterans Court vacated the Board's decision and remanded
the case to the VA. Mr. Sucic's counsel did not notify
the Veterans Court of Mr. Sucic's death until several
months later, on August 31, 2016, shortly after the Veterans
Court issued its mandate. See id. On the same day,
Mr. Sucic's counsel filed an unopposed motion to recall
the Veterans Court's judgment and remand decision, J.A.
47- 49, and a motion to substitute Mr. Sucic's three
adult children as claimants, J.A. 50-53.
Veterans Court considered whether Mr. Sucic's three adult
children were eligible accrued benefits beneficiaries under
38 U.S.C. § 5121(a) and therefore qualified for
substitution. Sucic, 29 Vet. App. at 122. The
Veterans Court interpreted the term "[t]he veteran's
children" in § 5121(a)(2)(B) and determined that
Mr. Sucic's adult children were not eligible accrued
benefits beneficiaries. Id. at 125-27. The Veterans
Court therefore denied the motion for substitution and
dismissed the case. Id. at 127.
Sucic's three adult children appealed. We have
jurisdiction pursuant to 38 U.S.C. § 7292(a) and (c).
first provide an overview of the statutory provisions at
issue in this appeal.
in VA proceedings is governed by 38 U.S.C. § 5121A.
Section 5121A provides that if the claimant dies, living
people eligible to receive accrued benefits under ...