This case involves the issue of whether a World War II veteran's survivor can substitute into her deceased husband's CUE Claims that pending - for nearly 2 decades - at the time of his death death.

Before he died in 2010, a World War II Veteran had filed a CUE claim to revise 1989 and 1992 BVA decisions that denied him an earlier effective date based on Clear and Unmistakeable Error (CUE).

When he passed away, his surviving spouse attempted to take advantage of the VA's survivor substitution law and appear as a substitute claimant into the appeal to continue it for him, as it was still pending at his death.

38 U.S.C. § 5121A is the primary statute regarding the survivor substitution law, and provides that “[i]f a claimant dies 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, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.”

The Court of Appeals for Veterans Claims found the BVA was legally wrong under the survivor substitution law when it decided a survivor cannot substitute into a CUE claim pending at the veteran's death. Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2014)(the Federal Circuit allowed a surviving spouse to substitute on a veteran's appeal to the Court, in part, because the Veteran had a claim pending at the time of death); Rusick v. Gibson, 760 F.3d 1342 (Fed. Cir. 2014) (the Federal Circuit recognizes that “[38 U.S.C. §] 5121A might now allow a survivor to substitute on a pending CUE claim that the veteran had filed before his death . . . ”)

The BVA also — incorrectly — decided that the surviving spouse's request to substitute into the appeal was not "at issue", even though it was clearly raised by the record.

On a Joint motion for remand, the CAVC vacated the BVA decision and remanded it back to the BVA to correctly apply the survivor substitution law.

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Link to the BVA Decision on CAVC Website.

Link to the Joint Motion to Remand the CAVC Website.

Case Details

OGC Attorney: Anthony D. Ortiz

Veteran Representation at CAVC: Chris Attig (link to bio)

Board of Veterans Appeals Veterans Law Judge: K. Millikan

Regional Office: New Orleans, Louisiana, VA Regional Office

Vets’ Rep at BVA: Chris Attig (Link to BVA Appeals Attorney Representation Information)

Date of BVA Decision: February 3, 2015

Date of CAVC Judgment on Remand: February 17, 2016