[00:00:00] Speaker 05:
There are three argued cases this morning.

[00:00:01] Speaker 05:
The first is number 23, 1377, Rodenheiser versus McDonough.

[00:00:08] Speaker 05:
Mr. Carpenter.

[00:00:16] Speaker 04:
May it please the court.

[00:00:17] Speaker 04:
Kenneth Carpenter appearing on behalf of Mrs. Deborah Rodenheiser, mother of the deceased veteran Thomas Rodenheiser, who was the appellant before the Veterans Court.

[00:00:27] Speaker 04:
This court asked that we be prepared to address this court's decision in Smith through Hicks versus McDonough.

[00:00:36] Speaker 04:
And I am prepared to start my argument with that, unless the court wants to.

[00:00:42] Speaker 04:
Well, let's couple that with merit.

[00:00:46] Speaker 05:
Yes.

[00:00:47] Speaker 05:
So if I understand Merritt and Smith, they're saying that 5121A, whatever the number is, which provides for the filing of a claim after a veteran dies, is dealing only with claims that are pending before the Veterans Administration and not those in the Veterans Court or in this court.

[00:01:15] Speaker 05:
Yes, that's correct, Your Honor.

[00:01:18] Speaker 05:
OK.

[00:01:19] Speaker 05:
And so how do you get around that?

[00:01:23] Speaker 04:
Your Honor, the Veterans Court's reliance upon its precedent in breed love is where the error in this case occurred.

[00:01:35] Speaker 04:
And the reason that we are able to get around it

[00:01:39] Speaker 04:
is because the substitution provisions of the Veterans Court are controlled by its rules and are not controlled by either the statute or the VA determination regarding substitution.

[00:01:52] Speaker 03:
What about how the Veterans Court seems to have said what their rules are?

[00:01:56] Speaker 03:
And they first want to have some sort of determination from the VA on a motion for accrued benefits.

[00:02:04] Speaker 04:
And that's where the decision in breed love is incorrect and inconsistent with the statutory requirements of 5121A for substitution.

[00:02:16] Speaker 05:
But we rejected that in merit.

[00:02:20] Speaker 04:
Your Honor, I don't believe that you did in merit.

[00:02:23] Speaker 04:
Merit was a standing issue based upon the fact that there hadn't been a timely motion.

[00:02:29] Speaker 05:
The substitution motion doesn't give you a substantive right to the claim, that you have to get that separately.

[00:02:37] Speaker 05:
And you have to get that separately by filing a claim with the VA under 5121.

[00:02:47] Speaker 04:
That is not correct, Your Honor.

[00:02:51] Speaker 04:
But that's what it held.

[00:02:53] Speaker 05:
That's what merit held.

[00:02:56] Speaker 04:
I don't believe that that's what merit held.

[00:02:58] Speaker 04:
What merit held was is that Mrs. Merritt had not made

[00:03:02] Speaker 04:
an application within one year.

[00:03:04] Speaker 04:
That is not the case here.

[00:03:06] Speaker 04:
She made a request for substitution, which is all that's required by the statute.

[00:03:13] Speaker 04:
The statute only requires a request to be substituted.

[00:03:17] Speaker 04:
She did that.

[00:03:17] Speaker 04:
That was in the record.

[00:03:19] Speaker 04:
It was before the VA.

[00:03:21] Speaker 04:
And the Veterans Court was on notice of that.

[00:03:24] Speaker 04:
And therefore,

[00:03:25] Speaker 04:
When the Veterans Court relied upon breed love to require an actual application for accrued benefits, it was incorrect as a matter of law, because the requirement under 5121A is only that a request for substitution be made within one year.

[00:03:46] Speaker 00:
And she did that.

[00:03:47] Speaker 00:
But why do you think that the conclusion

[00:03:54] Speaker 00:
in breed love and I think essentially approved by us in the Smith case that 5121A does not apply to substitution once the matter is in the Veterans Court or

[00:04:14] Speaker 00:
above.

[00:04:15] Speaker 00:
Do you disagree with that?

[00:04:17] Speaker 00:
I do not disagree with that.

[00:04:19] Speaker 00:
OK.

[00:04:19] Speaker 00:
So what 5121 Big A says is not controlling of the substitution standard that the Veterans Court can adopt and has adopted, right?

[00:04:34] Speaker 04:
I respectfully disagree, Your Honor, because the statute only requires that a request be made.

[00:04:41] Speaker 04:
She made- Which statute?

[00:04:43] Speaker 04:
5121A, the substitution statute.

[00:04:46] Speaker 00:
But it doesn't apply to substitution.

[00:04:48] Speaker 00:
No, no, no.

[00:04:50] Speaker 04:
I understand that, Your Honor.

[00:04:51] Speaker 04:
But the issue in merit was, was there a timely request made in order to have standing

[00:05:01] Speaker 04:
The decision in merit was a standing decision that she did not have standing because she did not make that request.

[00:05:09] Speaker 05:
Well, that same thing applies here.

[00:05:11] Speaker 04:
I beg your pardon?

[00:05:11] Speaker 04:
The same problem exists here.

[00:05:13] Speaker 04:
But it does not, Your Honor, because what she did make was all that was required by statute, which was a request for substitution, not a request for accrued benefits.

[00:05:26] Speaker 04:
The application for accrued benefits is an application that is processed as a separate derivative right.

[00:05:34] Speaker 04:
The request for substitution is a procedural mechanism under which Congress has provided that a person who is eligible to proceed with accrued benefits may make a request to be substituted.

[00:05:52] Speaker 04:
Those are two different statutory requirements.

[00:05:54] Speaker 05:
But you seek to acquire accrued benefits to the extent of the funeral expenses, correct?

[00:05:58] Speaker 04:
That's correct, Your Honor.

[00:06:00] Speaker 05:
I really don't understand what you're saying.

[00:06:03] Speaker 04:
Because the language in the statute only requires a showing of eligibility to seek accrued benefits, not an application for accrued benefits.

[00:06:14] Speaker 03:
But since we've all agreed, I hear your point.

[00:06:17] Speaker 03:
But since we've all agreed that 5121 Big A does not apply in the Veterans Court, why couldn't the Veterans Court develop its procedure for what it wanted

[00:06:30] Speaker 03:
for substitution in its court.

[00:06:33] Speaker 03:
And it did so, I believe, in 2010 in Breedlove.

[00:06:37] Speaker 03:
Why wasn't it able to do that?

[00:06:40] Speaker 03:
Why doesn't it have the discretion to announce what its procedure is?

[00:06:44] Speaker 04:
Because that requirement is inconsistent with the statutory requirements set out by Congress.

[00:06:50] Speaker 03:
The statute doesn't apply to the Veterans Court.

[00:06:52] Speaker 04:
It does not apply to the Veterans Court, Your Honor, but it does apply

[00:06:55] Speaker 04:
to the agency.

[00:06:57] Speaker 04:
And in the rule that you say was created in breed love, the Veterans Court delegated inappropriately its authority to decide who will be substituted to the secretary, dependent upon.

[00:07:11] Speaker 03:
They wanted to have a fact finding, right?

[00:07:14] Speaker 04:
But a fact finder is not required in this circumstance, Your Honor, because the requirement under the statute is only that the person be eligible to

[00:07:25] Speaker 04:
make application for accrued benefits.

[00:07:28] Speaker 05:
Which statute?

[00:07:30] Speaker 04:
5121A.

[00:07:32] Speaker 05:
That doesn't apply.

[00:07:35] Speaker 04:
I understand that, Your Honor.

[00:07:36] Speaker 04:
But that's the predicate for the rule in Breeden.

[00:07:40] Speaker 04:
Therefore, we can't separate the application of Breeden as the appropriate criteria to determine who is an appropriate person to be substituted.

[00:07:52] Speaker 04:
That is the only requirement under the court's regulation.

[00:07:58] Speaker 04:
It is inappropriate for a court to delegate

[00:08:02] Speaker 04:
to an agency the obligation to determine who will and who will not be substituted in their court.

[00:08:10] Speaker 04:
That application was denied by the VA and is on appeal now to the Veterans Court.

[00:08:19] Speaker 00:
Where does that appeal stand?

[00:08:23] Speaker 04:
It has just been filed, and it's just being preceded.

[00:08:27] Speaker 00:
The briefing has not?

[00:08:28] Speaker 04:
Oh, no.

[00:08:28] Speaker 04:
The briefing hasn't started yet.

[00:08:30] Speaker 04:
The decision was just made in August, and I think it was filed sometime in September.

[00:08:36] Speaker 04:
And so we don't even have a briefing order yet in that case.

[00:08:42] Speaker 04:
But that case will decide.

[00:08:45] Speaker 04:
what the Veterans Court made reference to in its decision, which is whether or not she is or isn't an appropriate person to be substituted.

[00:08:55] Speaker 04:
The board said on a different ground than the agency said that she was not such an appropriate person.

[00:09:02] Speaker 04:
If she prevails in that appeal, then she has the standing to be substituted in a case which should not have been dismissed and was dismissed prematurely before she had the opportunity to exhaust her appellate remedies.

[00:09:20] Speaker 04:
And that reference.

[00:09:21] Speaker 05:
If I understand what you're saying correctly,

[00:09:25] Speaker 05:
We're supposed to decide the issue of standing, which you say is pending in the other case.

[00:09:31] Speaker 05:
It's only a question of whether she can be substituted pending a decision on the standing issue.

[00:09:38] Speaker 04:
Well, I would put it a slightly different way that the court prematurely dismissed Mr. Rodenheiser's appeal and her request to be substituted.

[00:09:48] Speaker 05:
So she gets standing she's confronted with a problem that she's not been substituted in the case.

[00:09:54] Speaker 05:
Correct.

[00:09:55] Speaker 05:
OK, I understand what you're saying.

[00:09:57] Speaker 03:
Is there a reason why

[00:09:59] Speaker 03:
I have a question.

[00:10:02] Speaker 03:
A motion for acute benefits wasn't filed in the VA in July 2021 after the government

[00:10:16] Speaker 04:
But it would have been an application for accrued benefits.

[00:10:19] Speaker 04:
She's not seeking accrued benefits.

[00:10:21] Speaker 05:
She is seeking to be substituted.

[00:10:23] Speaker 05:
She was seeking accrued benefits.

[00:10:25] Speaker 05:
She's seeking funeral expenses, which are part of accrued benefits.

[00:10:30] Speaker 04:
That's the qualifying predicate for eligibility under 5121 capital A to be

[00:10:37] Speaker 04:
substituted.

[00:10:38] Speaker 00:
So can I ask this question?

[00:10:40] Speaker 00:
And you'll correct me about my understanding.

[00:10:45] Speaker 00:
So if one had a 5121 Big A situation, then somebody who is substituted there, what does that person?

[00:11:00] Speaker 00:
And let's suppose for a minute that

[00:11:04] Speaker 00:
There are no other possible substitutes.

[00:11:08] Speaker 00:
Do I understand that either the statute or the regulation

[00:11:13] Speaker 00:
entitles that person to the entirety of any victory in the veteran's claim now being litigated by the substitute?

[00:11:26] Speaker 04:
That question has been adversely decided by the Veterans Court in Frasier.

[00:11:30] Speaker 04:
And that appeal and cross-appeal have been filed before this court on that very issue.

[00:11:36] Speaker 00:
So whereas

[00:11:40] Speaker 00:
crude benefit claim under 5121, full stop, would be, at least for your client, would be limited under C to the funeral expenses.

[00:11:53] Speaker 04:
Actually, it would not be limited under C. It would be limited under A6.

[00:12:00] Speaker 00:
Yes, A6.

[00:12:01] Speaker 00:
I'm sorry.

[00:12:02] Speaker 04:
C is the requirement that you actually make an application within one year for accrued benefit.

[00:12:07] Speaker 00:
And there's also a disparity right between the accrued benefit

[00:12:13] Speaker 00:
situation and substitute in what evidence might be the basis.

[00:12:18] Speaker 00:
If you're a substitute, you get to develop new evidence on a remand or something.

[00:12:24] Speaker 04:
And that's the purpose of 5121A to complete the pending claim.

[00:12:29] Speaker 04:
The disconnect here, and Breedlove got it right that 5121A as written by Congress does not pertain to the Veterans Court.

[00:12:38] Speaker 04:
But the problem is what happens when you have an appeal

[00:12:43] Speaker 04:
to the Veterans Court, which if vacated and remanded, would result in a claim pending before the Veterans Court.

[00:12:52] Speaker 04:
And so if she prevails in the appeal for her son, then she would have a claim pending.

[00:12:58] Speaker 04:
That was the basis for the original denial by the agency for substitution, that there was no claim pending.

[00:13:10] Speaker 04:
I'll reserve the balance for tonight.

[00:13:14] Speaker 05:
Alright, let's hear from the government, Mr. Jordan.

[00:13:24] Speaker 02:
It pleases the court.

[00:13:25] Speaker 02:
This court should affirm the decision of the Veterans Court because the VA has not found that appellant, Ms.

[00:13:30] Speaker 02:
Deborah Rodenheiser, is an accrued benefits claimant entitled to accrued benefits unpaid and due to her son, Thomas Rodenheiser, at the time of his death on September of 2020.

[00:13:39] Speaker 02:
The VA is the only entity that can determine whether Ms.

[00:13:43] Speaker 02:
Rodenheiser is an eligible accrued benefits claimant.

[00:13:46] Speaker 05:
And there is such a claim pending before the VA.

[00:13:50] Speaker 05:
So correct.

[00:13:52] Speaker 05:
That was timely.

[00:13:53] Speaker 02:
That was timely under 5121C.

[00:13:56] Speaker 00:
I'm sorry.

[00:13:57] Speaker 00:
What claim was pending and timely?

[00:14:02] Speaker 02:
So there was no pending claim timely.

[00:14:04] Speaker 02:
I understood the court to be articulating what is required under 5121.

[00:14:09] Speaker 05:
No.

[00:14:11] Speaker 05:
What I was trying to get at is Mr. Carpenter seems to be saying that the issue of standing depends on the outcome of a proceeding before

[00:14:23] Speaker 05:
the VA as to whether she has a claim for accrued benefits to the extent of the funeral expenses.

[00:14:30] Speaker 05:
Correct.

[00:14:31] Speaker 05:
Right?

[00:14:32] Speaker 05:
And do you agree that there is such a claim pending at the VA?

[00:14:36] Speaker 02:
No.

[00:14:36] Speaker 02:
There's no such claim because the VA has not made that determination.

[00:14:41] Speaker 02:
Now, there is another case.

[00:14:42] Speaker 02:
I'm sorry.

[00:14:43] Speaker 00:
There's one question about whether a claim has been filed.

[00:14:49] Speaker 00:
There's a separate question about whether VA has made a determination.

[00:14:52] Speaker 00:
Which is your position?

[00:14:54] Speaker 00:
I took it.

[00:14:56] Speaker 00:
Yeah, and I'm not even sure what the Veterans Court position is.

[00:14:59] Speaker 00:
I understand the facts to be this, that the veteran died in September of, what, 2021?

[00:15:04] Speaker 00:
2020.

[00:15:06] Speaker 00:
2020.

[00:15:07] Speaker 00:
In November, there was a filing made before the regional office.

[00:15:13] Speaker 00:
The filing was on a form about substitution.

[00:15:16] Speaker 00:
And there is an issue now about whether that filing should be treated as a 5121 subsection C claim for accrued benefits.

[00:15:26] Speaker 00:
That's the issue that's now being briefed in the Veterans Court.

[00:15:31] Speaker 00:
Is that right?

[00:15:32] Speaker 00:
Correct.

[00:15:32] Speaker 00:
And in another case.

[00:15:33] Speaker 00:
OK.

[00:15:34] Speaker 00:
So I think I understand what the claim situation is.

[00:15:38] Speaker 00:
The determination situation, I'm a little confused about.

[00:15:43] Speaker 00:
To the extent that the Veterans Court was saying,

[00:15:45] Speaker 00:
The only way this appeal can proceed is if we have a appellant in front of us with a stake, essentially a standing point.

[00:15:55] Speaker 00:
We don't.

[00:15:57] Speaker 00:
We don't, at least after September of 2021, because at that point, the one-year time limit of 5121 subsection C has expired.

[00:16:10] Speaker 00:
And unless we treat the November 2020 filing as an accrued benefits claim under 5121 C, there cannot be eligibility, because there was no timely claim.

[00:16:25] Speaker 02:
That's correct.

[00:16:26] Speaker 02:
That filing in December of 2020, I believe it's on Appendix page 61 or 62.

[00:16:32] Speaker 02:
If in that other case, they find that that is an application for accrued benefits, in that other case, then my understanding is that

[00:16:44] Speaker 02:
Ms.

[00:16:45] Speaker 02:
Roanheuser was unsuccessful before the RO and the BVA is currently on appeal.

[00:16:49] Speaker 05:
But if she's successful in the Veterans Court, she will have a claim and she will have standing, right?

[00:16:55] Speaker 05:
In that other case.

[00:16:56] Speaker 05:
Yeah, but I think the problem that Mr. Carpenter was identifying, if this case gets dismissed, even though she ultimately establishes standing, she will have no remedy to be substituted because the case will have gone.

[00:17:10] Speaker 02:
That's incorrect with respect to accrued benefits, which is the real interest here.

[00:17:14] Speaker 02:
Because the BVA, I'm sorry, the Veterans Court vacated the adverse veterans decision, which it did on page three of its decision.

[00:17:24] Speaker 02:
So the adverse decision that was on appeal at the time of Mr. Rodenheiser's passing has been vacated.

[00:17:30] Speaker 02:
And Ms.

[00:17:30] Speaker 02:
Rodenheiser can pursue accrued benefits as a claim before the BVA.

[00:17:35] Speaker 02:
And what can be litigated?

[00:17:37] Speaker 02:
What can she litigate in that proceeding?

[00:17:40] Speaker 02:
So she can litigate his appeal that was pending at the time of his death, but the amount she can collect is capped at the amount of the film.

[00:17:48] Speaker 00:
And she can litigate that appeal only on the pre-death evidence.

[00:17:53] Speaker 00:
Isn't that what 5121 says?

[00:17:57] Speaker 02:
So there is no claim after his passing.

[00:17:59] Speaker 00:
I'm sorry.

[00:18:01] Speaker 00:
I think you were here from my colloquy with Mr. Carpenter.

[00:18:07] Speaker 00:
There's a big difference between 5121 accrued benefits claims and 5121 capital A substitution in the following regard.

[00:18:18] Speaker 00:
A substitute can expand the record beyond the evidence that was in the record at the time of the veteran's death.

[00:18:28] Speaker 00:
An accrued benefits claimant under 5121 cannot.

[00:18:33] Speaker 00:
Is that right?

[00:18:36] Speaker 00:
I should say I don't have any doubt about this.

[00:18:40] Speaker 00:
So I mean, I could be just completely off.

[00:18:43] Speaker 02:
But I mean.

[00:18:45] Speaker 02:
So my understanding of substitution is that substitution would allow the individual to step in the place of that claim that was pending at the time of death.

[00:18:55] Speaker 02:
So at the Veterans Court, whether the appeal of an adverse BVA decision, Ms.

[00:19:01] Speaker 02:
Rodenheiser can just step in.

[00:19:02] Speaker 02:
But that's been vacated, that adverse decision.

[00:19:04] Speaker 05:
Yeah, but she can't because of what the Veterans Court did.

[00:19:08] Speaker 05:
If she establishes standing, why isn't she then able to be substituted for the Veterans Court in the accrued benefits appeal?

[00:19:18] Speaker 02:
So there's also an issue of waiver, too.

[00:19:20] Speaker 02:
At the level below, Ms.

[00:19:22] Speaker 02:
Rodenheiser said she's not seeking accrued benefits.

[00:19:25] Speaker 05:
No, no, but she is to the extent of the funeral expenses.

[00:19:27] Speaker 05:
That's what the statute provides.

[00:19:30] Speaker 05:
It's an accrued benefits claim, but only to the extent of funeral expenses.

[00:19:34] Speaker 05:
Correct.

[00:19:35] Speaker 05:
Right.

[00:19:37] Speaker 05:
But I don't think you've answered my question.

[00:19:39] Speaker 05:
I'm not understanding why her case in the Veterans Court got dismissed when she's trying to establish that she has standing.

[00:19:48] Speaker 05:
Because if any effort to substitute herself after establishing standing would then be untimely, she wouldn't be able to continue the case in the Veterans Court, no?

[00:20:00] Speaker 02:
Because there was no BVA determined.

[00:20:04] Speaker 02:
But that's right.

[00:20:05] Speaker 05:
There was no application.

[00:20:07] Speaker 05:
She wins her standing appeal.

[00:20:09] Speaker 05:
It's too late for her to be substituted in the veterans case in the Veterans Court, right?

[00:20:15] Speaker 02:
Correct.

[00:20:15] Speaker 02:
It's too late, because that one year has passed.

[00:20:17] Speaker 02:
The application was not there.

[00:20:19] Speaker 05:
Well, that seems to be unfair.

[00:20:21] Speaker 05:
Why shouldn't the Veterans Court hold the appeal until the standing issue is resolved?

[00:20:27] Speaker 02:
Because Ms.

[00:20:28] Speaker 02:
Rodenheiser can still pursue that claim for accrued benefits before the BVA, and then eventually the veterans... Yeah, but she has to start over again.

[00:20:35] Speaker 05:
That's what she doesn't want to do.

[00:20:40] Speaker 00:
But let me just add, it's not just that she has to start over.

[00:20:44] Speaker 00:
This is the point about the different evidentiary record.

[00:20:47] Speaker 00:
My understanding, I think from the text of 5121, it says that if you're an accrued benefit claim, you get to claim it.

[00:20:55] Speaker 00:
You get to litigate the rest of the veteran's claim.

[00:20:58] Speaker 00:
And the veteran was saying, I didn't get enough money, and then the veteran died.

[00:21:02] Speaker 00:
But the accrued benefits claimant is limited to the pre-death evidence.

[00:21:07] Speaker 00:
Pre-death evidence, right?

[00:21:10] Speaker 00:
the evidence in the record at the time of the death of the veteran.

[00:21:14] Speaker 00:
And that's not true for a substitute.

[00:21:20] Speaker 00:
And that could matter, right?

[00:21:22] Speaker 00:
I mean, we've certainly seen enough cases where there's a remand for more evidence, and more evidence then changes the outcome.

[00:21:32] Speaker 00:
And that's what starting over with a pure accrued benefits claim under 5121 would not allow, all of which is to say it feels like it might make a difference, which you're suggesting it really doesn't make a difference, whether she's remitted to a accrued benefit claim starting over or this appeal is held until the standing question is resolved.

[00:22:01] Speaker 02:
Correct.

[00:22:02] Speaker 02:
That's what the Veterans Court held.

[00:22:03] Speaker 02:
There is no difference because she can still pursue that remedy and the appeal that's currently pending.

[00:22:10] Speaker 02:
And I think any question of whether there is an evidentiary difference would certainly be unripe.

[00:22:16] Speaker 02:
I don't recall the parties briefing that issue.

[00:22:19] Speaker 02:
What I do recall is in the briefs is that Ms.

[00:22:22] Speaker 02:
Rodenheiser argued that she's not seeking accrued benefits.

[00:22:24] Speaker 02:
She simply filed a motion to substitute.

[00:22:26] Speaker 02:
And I think the court's cases and merit

[00:22:29] Speaker 02:
And Smith are very controlling here, because at the time that motion was filed, there was no finding and there was no application.

[00:22:35] Speaker 02:
And so the question is, without that, was the denial of that motion an abuse of the Veterans Court discretion?

[00:22:41] Speaker 02:
And I think Merritt and Smith are clear on that.

[00:22:43] Speaker 00:
Can I ask this question?

[00:22:44] Speaker 00:
So some of the discussion here has been about this being essentially an issue of standing.

[00:22:54] Speaker 00:
In other contexts, a court of appeals, which ordinarily cannot make fact finding, just like the Veterans Court, does actually make a determination on standing by receiving declarations.

[00:23:14] Speaker 00:
That's what we do in the patent context when a unsuccessful challenger to a patent, unsuccessful before the Patent Trial and Appeal Board, loses and then wants to take an appeal.

[00:23:28] Speaker 00:
There was no Article III requirement before the

[00:23:31] Speaker 00:
patent board, there is here, suddenly there's a standing question.

[00:23:35] Speaker 00:
And the way that we deal with that is we allow declarations to be submitted to establish under a kind of defined standard that there is standing.

[00:23:48] Speaker 00:
Why would the Veterans Court not have the same ability to do that, notwithstanding that it, like any other court of appeals, is not supposed to make fact findings?

[00:24:01] Speaker 02:
So I think under its procedures,

[00:24:04] Speaker 02:
they need to reach that determination of whether there's accrued benefits.

[00:24:09] Speaker 02:
And there's fact-finding that cannot simply be done through affidavit's declaration, because the issue is broader than standing.

[00:24:15] Speaker 02:
The issue is whether or not the individual is sufficient and where they stand in the priority of claims.

[00:24:19] Speaker 02:
If there is a child or a spouse within the order, that needs to be determined by the agency and make those factual determinations.

[00:24:27] Speaker 02:
In this particular case.

[00:24:28] Speaker 03:
Do you get that law from breed law?

[00:24:30] Speaker 03:
Is that what you're relying on to answer this question?

[00:24:33] Speaker 02:
So breed love is informative there, but also the idea that fact-finding is done by the agency, I think, is pretty well-established.

[00:24:42] Speaker 03:
So what Judge Toronto was saying is that in standing situations, we sometimes have to make fact-findings.

[00:24:49] Speaker 03:
So why couldn't that be done by the Veterans Court, setting whatever breed love says aside?

[00:24:56] Speaker 02:
Because it's an eligibility determination, whether one satisfies that requirement as a matter of eligibility, which is accrued benefits.

[00:25:03] Speaker 05:
And the eligibility.

[00:25:04] Speaker 05:
Merritt rejected that proposition that we or the Veterans Court can make the standing determination.

[00:25:12] Speaker 05:
It said you've got to go back and make an application to the VA for the accrued benefits.

[00:25:19] Speaker 02:
Correct.

[00:25:19] Speaker 02:
There needs to be an application, fact-finding by the agency.

[00:25:22] Speaker 02:
And then once that is done, the substitution motion brought before

[00:25:26] Speaker 02:
Merritt decided in this court, to the extent there was any doubt, Smith resolved that with respect to Rule 43 substitution motions at the Veterans Court.

[00:25:36] Speaker 02:
And so the precise issue the court is confronted with here is, on the filing of that Rule 43 motion at the Veterans Court,

[00:25:44] Speaker 02:
in the absence of any fact finding by the agency that this individual is indeed an accrued benefits claimant and the absence of any application, whether or not that was an abuse of discretion.

[00:25:54] Speaker 02:
And it was not.

[00:25:55] Speaker 03:
Can I ask another question?

[00:25:56] Speaker 03:
Breedlove says that the Veterans Court, in determining this question, could remand the question of whether a person qualifies under Section 5121 or direct the secretary to inform the court within a set time period, whether they satisfy that.

[00:26:13] Speaker 03:
Why didn't that happen here?

[00:26:16] Speaker 02:
It did happen here.

[00:26:17] Speaker 03:
What happened was I don't see any order where the court remanded to the VA to make a determination on this issue.

[00:26:26] Speaker 03:
That is, whether she was entitled to accrued benefits under 5121.

[00:26:30] Speaker 03:
If that's a prerequisite, as breed love requires, in breed love, they have certain procedures that they mentioned that could be done.

[00:26:39] Speaker 03:
It says may.

[00:26:41] Speaker 03:
But they weren't followed here that I can tell.

[00:26:44] Speaker 02:
So I should clarify, there was a show cause order, and then there was an opportunity.

[00:26:47] Speaker 03:
I understand, but what I said isn't the same as a show cause order.

[00:26:51] Speaker 03:
What I said was a remand from the Veterans Court to the agency saying, hey, VA, tell us whether Ms.

[00:27:01] Speaker 03:
Rodenheiser qualifies under 5121.

[00:27:05] Speaker 03:
That didn't happen, right?

[00:27:07] Speaker 02:
So a remand did not, but the.

[00:27:10] Speaker 02:
Yeah, OK.

[00:27:11] Speaker 02:
But they never requested it either, right?

[00:27:12] Speaker 03:
They never asked for it.

[00:27:14] Speaker 03:
They never directed the agency, right?

[00:27:17] Speaker 03:
They never said to the agency, please let us know whether she satisfies 5121.

[00:27:22] Speaker 03:
We'll give you five months to give us an answer.

[00:27:25] Speaker 03:
They didn't certify a question to the agency.

[00:27:27] Speaker 03:
They didn't remand to the agency.

[00:27:29] Speaker 03:
I'm just trying to make sure I understand the basic facts, which are

[00:27:34] Speaker 02:
Procedurally, it did not happen in that precise way.

[00:27:37] Speaker 02:
But there was an opportunity for the agency to say whether there's an accrued benefit.

[00:27:41] Speaker 02:
There's an opportunity to respond in an opportunity.

[00:27:44] Speaker 03:
I know there was brief.

[00:27:45] Speaker 03:
I just wanted a yes or no answer.

[00:27:48] Speaker 02:
A remand did not occur.

[00:27:50] Speaker 03:
Nor did they ask the agency for an answer.

[00:27:52] Speaker 03:
They did have a show cause order seeking

[00:27:56] Speaker 03:
The answer being, has she shown, please, make the factual determination of whether she satisfies 5121.

[00:28:04] Speaker 03:
That didn't happen, right?

[00:28:08] Speaker 05:
No, no, that did happen, right?

[00:28:10] Speaker 05:
I mean, that's the basis for her claim that's pending now before the Veterans Court.

[00:28:14] Speaker 03:
I understand, but that's a separate, not in this case.

[00:28:16] Speaker 03:
In this appeal, it didn't happen.

[00:28:18] Speaker 02:
Right.

[00:28:19] Speaker 02:
That's what I meant.

[00:28:22] Speaker 02:
At the Veterans Court, there was a pending claim.

[00:28:26] Speaker 02:
I'm sorry, the form that they filed on appendix page 61 through 62.

[00:28:32] Speaker 02:
In that other case, in that other claim stream, that determined that.

[00:28:38] Speaker 02:
So the question is, is that with the specific case?

[00:28:41] Speaker 03:
So going back to this, why do you think there wasn't a remand here?

[00:28:44] Speaker 03:
Why didn't he?

[00:28:47] Speaker 03:
Why didn't the violence court say, hey, Ms.

[00:28:49] Speaker 03:
Rodenheiser, why don't you go file a paper under 5121?

[00:28:52] Speaker 03:
And nobody seems to be looking out for her.

[00:28:56] Speaker 02:
Two reasons.

[00:28:58] Speaker 02:
One, there was opportunity to make that application for accrued benefits within the time of briefing and the show cause order.

[00:29:08] Speaker 02:
So it provided an opportunity.

[00:29:09] Speaker 03:
Who ordered a filing?

[00:29:11] Speaker 03:
And the court didn't tell her to file it.

[00:29:13] Speaker 02:
Well, through briefing and just the law, it should have been clear that that sort of filing was needed and that was not done.

[00:29:20] Speaker 02:
Instead, what Ms.

[00:29:22] Speaker 02:
Rodenheiser tried to do was say, none of that is needed.

[00:29:25] Speaker 02:
All you need to do is file this substitution motion without any sort of effort.

[00:29:31] Speaker 05:
No, that's not true.

[00:29:33] Speaker 05:
She's started a proceeding before the VA to establish her standing.

[00:29:37] Speaker 05:
And the question, it seems to me, that Mr. Carpenter is saying is, under those circumstances, you can't just simply dismiss her substitution request and dismiss the appeal and deny the substitution request.

[00:29:53] Speaker 05:
You've got to hold the case until her standing is resolved.

[00:29:57] Speaker 05:
I mean, there are two ways to go about this, I guess.

[00:30:01] Speaker 05:
for the Veterans Court, faced with a motion for substitution, to remand the case to the VA to determine eligibility.

[00:30:10] Speaker 05:
That's a possibility mentioned in greed law.

[00:30:13] Speaker 05:
The other possibility is, under the statute 5121, to make the application to the VA for accrued benefits and pause the Veterans Court case until that determination has been made at the VA.

[00:30:29] Speaker 02:
So procedurally, and I know my time has expired, procedurally, what the Veterans Court did that accomplished the same effect as that latter thing was to vacate the BVA decision and allow that to pursue.

[00:30:42] Speaker 02:
But she has to start over as a result of that, right?

[00:30:47] Speaker 02:
Well, if she is successful.

[00:30:48] Speaker 02:
Assuming she establishes standing, she has to start over.

[00:30:51] Speaker 02:
So the agency could notice those other decisions.

[00:30:55] Speaker 02:
The claims have already been briefed.

[00:30:57] Speaker 02:
And so there's no prejudice there.

[00:30:59] Speaker 02:
And that's what the Veterans Court does.

[00:31:00] Speaker 05:
I don't understand.

[00:31:01] Speaker 05:
If the Veterans Court dismissed the appeal by the veteran from the failure to award benefits, how does that appeal get reinstated once she establishes standing?

[00:31:18] Speaker 02:
It would not be reinstated.

[00:31:20] Speaker 02:
She can file whatever motions she would want, but the appeal would not be restated because the Veterans Court identified this other process.

[00:31:28] Speaker 02:
So she has to start over.

[00:31:29] Speaker 02:
And there's also a waiver problem.

[00:31:31] Speaker 02:
She has to start over, right?

[00:31:33] Speaker 02:
She would have to litigate before the BVA.

[00:31:37] Speaker 02:
And she has a waiver issue as well.

[00:31:39] Speaker 05:
I just don't understand how that is sensible.

[00:31:43] Speaker 05:
The veteran has brought his case all the way to conclusion in the veteran's court.

[00:31:49] Speaker 05:
And you're saying that because the veteran died, she has to start over instead of being substituted in the veteran's own case.

[00:31:58] Speaker 05:
I agree that she has to establish standing in order to do that.

[00:32:02] Speaker 05:
But I just don't understand how the veteran's court

[00:32:05] Speaker 05:
she can get away with dismissing the case and forcing it to start over.

[00:32:10] Speaker 02:
I just don't get that.

[00:32:21] Speaker 02:
I respectfully request that the court affirm the decision of the Veterans Court.

[00:32:25] Speaker 02:
And depending on the results of the other case, we may be back here again.

[00:32:28] Speaker 02:
And she can still get accrued benefits depending on the result of that other.

[00:32:32] Speaker 00:
OK, can I just double check something?

[00:32:34] Speaker 00:
So the appendix page 41 to 42 is your July 2021 filing in which you say, I guess the Veterans Court wanted to know your view of eligibility.

[00:32:50] Speaker 00:
And you say, as of the filing of this response, no application for accrued benefits has been received.

[00:32:56] Speaker 00:
As a result, agency of original jurisdiction has not made a determination because there hasn't been a 5121 accrued benefits application.

[00:33:08] Speaker 00:
Without a final determination, the secretary remains unable to state a position with respect to the motion to substitute.

[00:33:17] Speaker 00:
At that point, there was two months left on the 5121C clock.

[00:33:25] Speaker 00:
Yet that paper does not say the clock is ticking.

[00:33:30] Speaker 00:
You need to file this document.

[00:33:34] Speaker 00:
under 5121C in order to make any progress on your substitution time.

[00:33:44] Speaker 02:
So I think the case law and I think that specific provision makes it clear that one year is what's required.

[00:33:50] Speaker 02:
And so Ms.

[00:33:51] Speaker 02:
Rodenheiser could have filed an application for accrued benefits or if she is successful in her appeal challenging that form on appendix page 61 and 62.

[00:34:04] Speaker 02:
That's another basis.

[00:34:06] Speaker 02:
But there was ample notice and opportunity to file that.

[00:34:11] Speaker 02:
another application and be able to satisfy that, but it never occurred.

[00:34:15] Speaker 05:
And so the Veterans Court was confronted... Well, you're trying to force her to file the application before the time limit ran.

[00:34:21] Speaker 05:
Excuse me?

[00:34:21] Speaker 05:
You're forcing her to file the application before the VA, before the one-year time limit ran.

[00:34:27] Speaker 05:
That's the requirement.

[00:34:29] Speaker ?:
No.

[00:34:29] Speaker 05:
There's a one-year time requirement.

[00:34:32] Speaker 05:
It doesn't say she's out of luck if she files 10 months in one day.

[00:34:38] Speaker 02:
That's correct.

[00:34:39] Speaker 02:
She needs to file an application of recruit benefits within one year.

[00:34:41] Speaker 02:
I believe that's well established by case law and the plain text.

[00:34:46] Speaker 05:
So if she did that, she should be able to continue with the appeal, the merits appeal, before the veterans court.

[00:34:52] Speaker 02:
That is not the case this court is confronted with.

[00:34:55] Speaker 05:
Pardon?

[00:34:55] Speaker 02:
That's not what this court is confronted with, because it never occurred.

[00:34:59] Speaker 05:
It's still pending.

[00:35:00] Speaker 02:
In another case.

[00:35:02] Speaker 05:
OK.

[00:35:05] Speaker 05:
Thank you.

[00:35:06] Speaker 05:
Mr. Carpenter, you've got about two minutes.

[00:35:18] Speaker 05:
question.

[00:35:20] Speaker 05:
Would you be satisfied if

[00:35:41] Speaker 00:
Oh, and is there any basis for establishing that other than winning the parallel appeal to the effect that the form that was filed in November 2020 was sufficient to?

[00:35:57] Speaker 04:
I don't believe there would be, Your Honor, no.

[00:35:59] Speaker 00:
No other basis, OK, because of the one-year clock?

[00:36:02] Speaker 00:
No.

[00:36:03] Speaker 00:
OK.

[00:36:05] Speaker 04:
The only thing I would ask this Court to do is to,

[00:36:10] Speaker 04:
review the Secretary's regulations at 3.1000 and 3.1010, one applies to substitution, one applies to accrued benefits, and make a determination that the factual determination for substitution is to be made by the Veterans Court and not by, as in

[00:36:34] Speaker 04:
as directed in Breedlove, the VA's determination.

[00:36:39] Speaker 04:
OK, but that is contrary to merit, I think.

[00:36:43] Speaker 04:
I don't believe it is, Your Honor, when you understand what the Secretary did by regulation.

[00:36:49] Speaker 04:
The decision in Breedlove was decided in 2010.

[00:36:52] Speaker 04:
The Secretary did not promulgate regulations for substitution until 2014.

[00:36:58] Speaker 04:
And in those regulations,

[00:37:01] Speaker 04:
3.1010a, he defines eligibility and clearly states that it is a person who is eligible for accrued benefits, not to make an application for, but eligible for in the priority order may request

[00:37:27] Speaker 04:
substitution and may continue the current claim or appeal.

[00:37:33] Speaker 04:
Now, I'm sure it's referring to an administrative appeal as opposed to a court appeal.

[00:37:39] Speaker 04:
But in subparagraph D, it defines the evidence of eligibility.

[00:37:43] Speaker 04:
And it says evidence of eligibility to substitute means evidence demonstrating that the person is among those listed in the category of eligible persons.

[00:37:56] Speaker 04:
If the person requested does not eligible, then he may not be substituted.

[00:38:04] Speaker 04:
That is what controls substitution.

[00:38:08] Speaker 04:
And all that the Veterans Court needed to do under its regulation was to determine whether or not she did or didn't have standing as an appropriate person who made a request to be substituted.

[00:38:20] Speaker 00:
Can I ask this question?

[00:38:22] Speaker 00:
So there's been talk about the other possible eligible accrued benefits people.

[00:38:34] Speaker 00:
For her to be eligible, must there be a finding that there would be money remaining

[00:38:46] Speaker 00:
if the veteran's appeal were successful, money remaining for her down low in the list?

[00:38:56] Speaker 00:
Or is that really not an issue for Stan?

[00:38:58] Speaker 04:
That's not an issue.

[00:38:59] Speaker 04:
The only thing that would preclude would be someone in the list above a person who paid the funeral expenses.

[00:39:07] Speaker 04:
And those persons are a surviving spouse,

[00:39:10] Speaker 04:
And there is none in this case.

[00:39:12] Speaker 00:
No, no, I'm asking a legal question.

[00:39:15] Speaker 00:
So I think one of the things that Mr. Jordan said, which would make the factual issue more complicated than otherwise, is that one needs to know who else might be there as a substitute and what money might be left.

[00:39:35] Speaker 00:
And that I took the point of that to be

[00:39:38] Speaker 00:
an assertion that she would not be eligible unless it were clear enough that she might get some money as opposed to she's listed in A6, she's eligible, now you can substitute.

[00:39:52] Speaker 00:
Never mind whether there are people ahead of her.

[00:39:56] Speaker 04:
The only way she's eligible under A6 is there is no one ahead of her who is eligible.

[00:40:02] Speaker 00:
Okay.

[00:40:02] Speaker 04:
And there is no one eligible and that

[00:40:06] Speaker 04:
would have to be someone coming forward.

[00:40:09] Speaker 04:
And the court could certainly order the court to determine it.

[00:40:13] Speaker 04:
But this is the mother who knows whether or not her son was or wasn't married, does or doesn't have any minor children.

[00:40:20] Speaker 04:
There is no one else on the list of the hierarchical listing under

[00:40:30] Speaker 04:
5121 for those persons who.

[00:40:33] Speaker 00:
So in your view, there is a factual question.

[00:40:36] Speaker 00:
The factual question is, did she pay for the funeral benefits?

[00:40:40] Speaker 00:
And if she has documents.

[00:40:42] Speaker 04:
And that was submitted to the VA, and that was submitted to the court.

[00:40:45] Speaker 05:
And what's the issue about eligibility that's pending now in the Veterans Court?

[00:40:52] Speaker 04:
The Board of Veterans Appeals, on different basis than the

[00:40:59] Speaker 04:
regional office denied substitution under 3.1010.

[00:41:09] Speaker 04:
Because?

[00:41:11] Speaker 04:
Well, the agency denied because there was no pending claim.

[00:41:15] Speaker 04:
The board denied because she was what they referred to as an adult parent, and therefore not eligible as an adult parent.

[00:41:25] Speaker 04:
And of course, she's not.

[00:41:27] Speaker 04:
She doesn't make her application to be substituted as the parent, but as the person who is responsible for the payment of the funeral expenses.

[00:41:37] Speaker 05:
OK.

[00:41:38] Speaker 04:
Thank you.

[00:41:39] Speaker 04:
Thank you.

[00:41:39] Speaker 05:
Thank both counsel.

[00:41:40] Speaker 04:
The case is submitted.