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Sucic v. Wilkie (definition of

What is the Deep Issue in the Case?

Claimants eligible to receive accrued benefits upon the veteran's death are, in order of eligibility, the veteran's spouse, "the veteran's children" and the veteran's dependent parents. 38 U.S.C. §5121(a)(2). When the veteran died in 2016, his three adult children argued they were eligible accrued benefits beneficiaries, and should be permitted to substitute into the appeal pending at the veteran's death. Are non-dependent, adult children part of what Congress called "the veteran's children" in the substitution and accrued benefits statutes?

What did the FCOA Decide?

The Federal Circuit held, in a precedential decision that the term "children" in the accrued benefits statute (38 USC §5121(a)(2)(B)) is clearly and unambiguously governed by the definition of "child" in §101(4)(A) and that non-dependent adult children are not eligible accrued benefits beneficiaries as the "veteran's children."

The Court declined to consider the pro-veteran canon, finding that canon is a  traditional tool of statutory construction to be used only when there is an ambiguity in Congress's words.

Takeaway Points for VSOs and Veterans Disability Lawyers:

1) How does this change your practice?

It won't change it much.

This appeal was an attempt to broaden the interpretation of the accrued benefits statutes, so that a veteran's claim could be continued if he died, without a spouse, by his adult children.

So the law will stay how it has been, for now.

This appeal was an attempt to broaden the interpretation of the accrued benefits statutes, so that a veteran's claim could be continued if he died, without a spouse, by his adult children.

Veterans have long been concerned that because the accrued benefits statutes are limited to children who were under the age of 18 at the time of the veteran's death gives the VA motive to delay a claim until a veteran and his surviving spouse die. There's a lot of evidence to support the VA's "Delay until they Die" motive.

Frankly, it is my personal opinion that a statute allowing a veteran's estate to substitute into a claim or appeal pending at the time of death would have a much more significant effect in the improvement of the VA claims and appeals process then any change to the actual process itself.

Remove the VA's motive to delay, and they might focus on getting claims resolved as quickly as possible.

One thing to keep in mind is that a dependent minor child who substituted into a pending claim or appeal at the time of the veteran's death continues to be an eligible beneficiary even if that child reaches the age of majority.

This decision only limits eligible accrued beneficiaries to those who were dependent minor children at the time of the veteran's death.

3) The role of the Pro Veteran Canon - one theory appears to continue to be disfavored.

This appeal was a pure statutory interpretation argument. 

And, in rendering its interpretation of the word "veteran's children" in the accrued benefits statute, the Court found that the word children was unambiguously defined by the word child in 38 U.S.C. §101(4)(A).

Because it found the statute to lack ambiguity - meaning Congress's intent and meaning was clear on the face of the statute's text - the Court found that there was no need to apply a traditional tool of statutory construction.

This includes the pro-veteran canon.

In fact, as it did has in the past, the Federal Circuit found that the veterans canon only applies to ambiguous statutes and cannot be used to override the clear meaning of a particular provision. Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1340 (Fed. Cir. 2003); Gazelle v. Shulkin,868 F.3d 1006, 1012 (Fed. Cir. 2017); Boyer v. West, 210 F.3d 1351, 1355 (Fed. Cir. 2000). In other words, it is a traditional tool of statutory construction used in Chevron Step 1.

While clearly against the body of precedent, I believe that the pro veteran canon is more than just a traditional tool of statutory construction. As I have argued elsewhere, I believe the pro veteran canon is like a spotlight that illuminates the entire statutory (and, frankly, regulatory) interpretation process. It casts what I call a "penumbra of beneficence" over the entire interpretive process.

In my mind, all veterans benefits statutes - not just the unambiguous ones - must be interpreted "in light of 'the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.' " Henderson v. Shinseki, 562 U.S. 428 (2011).

I'm not sure the scenario came into clear relief in Sucic, but what happens when a statute is unambiguous, its meaning clear on its face, but the result is that the interpretation does not favor the beneficiaries? In such a hypothetical scenario, there is a conflict in Congressional intent, that may create the very ambiguity that Chevron requires before the canons of construction may be used.

I could very well be wrong on this, and perhaps someday the Supreme Court will illuminate the role, or define the reach, of the pro-veteran canon in the context of statutory interpretation.

Until then, the Federal Circuit makes clear that it will only use the pro veteran canon as a traditional tool of statutory construction - no more, no less.

Case Details

At the Federal Circuit:

Federal Circuit Court of Appeals Panel:

Chief Judge Sharon Prost (Opinion Author) (link to bio on Federal Circuit Court of Appeals website)

Circuit Judge Jimmie V. Reyna (link to bio on Federal Circuit Court of Appeals website)

Circuit Judge Evan J. Wallach (link to bio on Federal Circuit Court of Appeals website)

Veteran Representation at Federal Circuit: Ken Carpenter, Carpenter Chartered (link to decisions involving Ken Carpenter on this blog)

DOJ Attorney at Federal Circuit: Joshua E. Kurland, Attorney.

Attorney for Amicus: No Amicus filed

Date of Decision: April 23, 2019

Link to Decision on Federal Circuit Court of Appeals Website.

At the CAVC:

CAVC Panel

Judge William S. Greenberg (CAVC Memorandum Decision Author) (link to bio on CAVC website)

Judge Coral W. Pietsch  (link to bio on CAVC website)

Judge Mary J. Schoelen  (link to bio on CAVC website)

Veteran Representation at CAVC: Ken Carpenter, Carpenter Chartered (link to decisions involving Ken Carpenter on this blog)

OGC Attorney at CAVC: Michele R. Katina  (on the briefs and merits) (link to bio on LinkedIn)

Date of CAVC Decision: January 31, 2017

Link to Memorandum Decision on CAVC Website.

Link to Panel Decision on CAVC Website

At the BVA:

Regional Office:  St. Louis, MO, VA Regional Office

Vets’ Rep at BVA: Ken Carpenter, Carpenter Chartered (link to decisions involving Ken Carpenter on this blog)

Board of Veterans Appeals Veterans Law Judge: Jennifer Hwa (link to blog posts involving this BVA VLJ) 

Attorney for the BVA: D.M. Donahue, Associate Counsel

Date of Board Decision: September 25, 2012

Link to BVA Decision on CAVC Website

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