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Sucic v. Wilkie

United States Court of Appeals, Federal Circuit

April 23, 2019

JACK SUCIC, Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeal 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.

          Joshua E. Kurland, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.

          Also 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.

          Before Prost, Chief Judge, Reyna and Wallach, Circuit Judges.

          PROST, CHIEF JUDGE.

         The 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.

         I

         Mr. 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.

         The 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.

         On 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.

         The 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.

         Mr. Sucic's three adult children appealed. We have jurisdiction pursuant to 38 U.S.C. § 7292(a) and (c).

         II

         We first provide an overview of the statutory provisions at issue in this appeal.

         Substitution 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 ...


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