[00:00:00] Speaker 01:
I know case for argument is 23-1378, Smith v. McDonough.

[00:00:07] Speaker 01:
Mr. Martin, wherever you're at.

[00:00:11] Speaker 04:
Good morning, Your Honors, and may I please the Court.

[00:00:14] Speaker 04:
My name is Jeffrey Martin.

[00:00:16] Speaker 04:
I represent Ms.

[00:00:17] Speaker 04:
Karen Hicks in a case to determine if she may be substituted for her father.

[00:00:23] Speaker 04:
Thomas Smith has a representative of his estate to prosecute a claim for reimbursement of approximately $34,000 in cost to construct a spa under the special adaptive housing program for veterans with service connected disabilities.

[00:00:41] Speaker 04:
Her father died five years ago, May 15th, 2019.

[00:00:47] Speaker 04:
On a pro bono basis, I represented him for almost 10 years.

[00:00:51] Speaker 04:
In the last five years, I now represent his daughter, school teacher in Jacksonville, Florida.

[00:00:58] Speaker 04:
She's the one who's been holding the family together, purchasing flowers for his funeral, paying the mortgage taken out to finance the spa that treated him during his last sickness.

[00:01:10] Speaker 04:
And she serves as a court-appointed executor for a state.

[00:01:15] Speaker 04:
We're here today to seek reversal of a ruling by the Court of Appeals

[00:01:21] Speaker 04:
for the veterans claims, holding that she could not be substituted for her father.

[00:01:27] Speaker 04:
Let me make my most important point at the outset.

[00:01:33] Speaker 04:
The decision of the veterans court below is clearly erroneous.

[00:01:38] Speaker 04:
because it held mis-hits.

[00:01:40] Speaker 03:
You're starting off the wrong foot when you're saying clearly arreneous.

[00:01:43] Speaker 03:
That's a similar review for facts, which we don't have.

[00:01:48] Speaker 04:
Correct.

[00:01:48] Speaker 04:
Air doesn't matter of law, Your Honor.

[00:01:50] Speaker 03:
So what is the legal air in them refusing to substitute here?

[00:01:56] Speaker 03:
Correct.

[00:01:57] Speaker 04:
They ruled that she was not eligible to pursue her own claim for accrued benefits when what she instead

[00:02:05] Speaker 04:
was seeking to do was substitute on her father's claim for non-accrued benefits.

[00:02:11] Speaker 01:
Do you agree that eligibility for accrued benefits is a factual determination?

[00:02:16] Speaker 04:
Your Honor, I believe it's a mixed question of fact and law.

[00:02:20] Speaker 03:
Well, we don't have jurisdiction over that either.

[00:02:24] Speaker 03:
Well, you do have jurisdiction.

[00:02:25] Speaker 03:
Actuation of not a fact.

[00:02:26] Speaker 03:
We don't have jurisdiction.

[00:02:27] Speaker 03:
Correct.

[00:02:27] Speaker 03:
That's very unprecedented.

[00:02:31] Speaker 03:
Let me just cut to the chase.

[00:02:32] Speaker 03:
Of course.

[00:02:33] Speaker 03:
But we have controls here, right?

[00:02:35] Speaker 03:
Because this is not a situation where the veteran died after all the briefing had been submitted to the Veterans Court, and you could do a non-protonch under Padre and all the Veterans Court decisions, right?

[00:02:47] Speaker 03:
That's not an issue here.

[00:02:51] Speaker 04:
Well, I think what changed a couple of weeks ago is when... No, no, no, no, no.

[00:02:56] Speaker 03:
Answer me the question.

[00:02:57] Speaker 03:
Breed lab is controlling care.

[00:02:59] Speaker 03:
You haven't talked about phasor that's hard, but phasor is interpreting breed law.

[00:03:03] Speaker 04:
It is interpreting breed law, but the basic issue in both cases is whether or not there's a program that allows substitution for non-approved claims.

[00:03:15] Speaker 03:
And breed lab...

[00:03:17] Speaker 03:
set forth the standards by which somebody can substitute in for the deceased veteran.

[00:03:24] Speaker 03:
Frazier said that that can occur even if it's not a accrued benefits claim, but it still applied the Breed Wealth Standard, which means that in order to substitute

[00:03:36] Speaker 03:
the party seeking to substitute has to show that they would have been eligible to substitute in for accrued benefits under 5121A, correct?

[00:03:45] Speaker 03:
That's correct.

[00:03:47] Speaker 03:
So that's what Frasier says.

[00:03:49] Speaker 04:
We're on the same page.

[00:03:51] Speaker 03:
Unfortunately, your client did not prove that she was eligible to substitute in under 5121A.

[00:03:59] Speaker 03:
Isn't that the final effect that the Veterans Court made?

[00:04:02] Speaker 04:
No, that's not correct because

[00:04:05] Speaker 04:
What was submitted to the Veterans Court in before then was an affidavit of page 86 of our joint appendix showing that she incurred cause of his last sickness.

[00:04:18] Speaker 03:
I understand all that, but that's stuff for the Veterans Court to decide.

[00:04:22] Speaker 03:
And the Veterans Court imbued that

[00:04:25] Speaker 03:
has a bunch of language about how it can decide it if it's unopposed, it can amend it to the secretary, or it can require the party seeking substitution to apply to the secretary to establish that entitlement.

[00:04:39] Speaker 03:
And on this record, the Veterans Court found that she did not establish entitlement.

[00:04:45] Speaker 03:
I understand why you factually disagree with that.

[00:04:49] Speaker 03:
You might be right as a matter of fact, but she didn't submit anything to the VA seeking to show her qualification for accrued benefits, right?

[00:04:58] Speaker 04:
The VA had, at the time this was pending before the Veterans Court, her affidavit from page 86 of our joint appendix.

[00:05:08] Speaker 04:
It had a request for substitution to the VA, which is at our appendix at page 106.

[00:05:15] Speaker 04:
It had proof that she had submitted flowers, paid for flowers for his burial.

[00:05:22] Speaker 04:
So what we are saying, Your Honors, is that under the standard of 5121, for an A6,

[00:05:31] Speaker 04:
she incurred the last expense of burial.

[00:05:35] Speaker 04:
And that was not disputed by the Veterans Administration.

[00:05:40] Speaker 03:
No, I think it is disputed by the Veterans Administration.

[00:05:42] Speaker 04:
Not that she incurred those expenses.

[00:05:44] Speaker 03:
Well, I think we'll hear, yes, that whether she qualified under 5121 little a subpart 6.

[00:05:51] Speaker 03:
I think we're going to hear that it was disputed, or at least it's not been proved.

[00:05:56] Speaker 03:
The problem for you, I understand, this seems like somebody who the Veterans Court should just have substituted based upon its own motion.

[00:06:04] Speaker 03:
But it made a finding that she hadn't shown that she was eligible.

[00:06:09] Speaker 03:
And that at best is an application of a lot of fact that I don't get a review.

[00:06:13] Speaker 04:
But this court wasn't the court below.

[00:06:17] Speaker 04:
You had to look at the terms of that Section A6.

[00:06:21] Speaker 04:
to see whether or not you could apply for any other benefit.

[00:06:26] Speaker 03:
You could apply it.

[00:06:27] Speaker 03:
That's what you're asking us to review, their application of it.

[00:06:30] Speaker 03:
You lose on jurisdiction if you're asking us to review their application.

[00:06:35] Speaker 03:
Like I said, I think that she should have been substituted.

[00:06:38] Speaker 03:
It's clear that she probably, if she'd gone through the right steps, had been substituted.

[00:06:44] Speaker 03:
But there's no legal error here, is there?

[00:06:46] Speaker 04:
Well, if that is the approach, if we say that doesn't apply and if we're only looking to review matters of fact,

[00:06:54] Speaker 04:
and can't look at matters of fact.

[00:06:56] Speaker 04:
Then it seems to me breed love still allows for two possibilities.

[00:07:01] Speaker 04:
Number one is evaluation of the paddock non-porton standard.

[00:07:08] Speaker 04:
Well that just doesn't apply here.

[00:07:10] Speaker 04:
Well yes it could.

[00:07:11] Speaker 03:
I mean, you can explain, but isn't Padgett clear that it's after the case has been fully briefed and submitted to the Veterans Court that you cannot put a tough case?

[00:07:21] Speaker 04:
Your Honor, absolutely.

[00:07:21] Speaker 04:
It does say that, but what we are saying is that the rationale for that submission requirement is so that the veteran and his

[00:07:33] Speaker 04:
the state are not prejudiced by delay in the court.

[00:07:37] Speaker 04:
And what we see in court reaching a decision, and what we have in this case, is extraordinary delay.

[00:07:44] Speaker 04:
And frankly, some questionable practices.

[00:07:47] Speaker 03:
The delay is this, if I could explain.

[00:07:50] Speaker 03:
I'm going to stop you, because the reason for Padgett was, at the time, there was no other admonition.

[00:07:56] Speaker 03:
This had gone all the way through briefing

[00:07:59] Speaker 03:
to the veteran's court and the veteran died before the veteran's court issued a decision, the survivor had to serve all the way over.

[00:08:06] Speaker 03:
We're not in that situation anymore.

[00:08:08] Speaker 03:
Breathe Love makes it clear you don't have to serve over at all.

[00:08:12] Speaker 03:
You have to meet the qualifications for Breathe Love and you didn't do them.

[00:08:17] Speaker 03:
So I don't understand why you would need Padgett to fill in the gap.

[00:08:22] Speaker 03:
Because you're asking for an extension of Padgett.

[00:08:24] Speaker 03:
But they've already covered that with Breathe Love.

[00:08:28] Speaker 04:
Well, if Paget is not subject to re-evaluation, and there's a hard requirement... Well, I mean, we can't do that.

[00:08:38] Speaker 03:
We'd have to go on bump to extend Paget.

[00:08:42] Speaker 03:
Maybe that's the next... Why would we do that when Breed Lab already covers the situation you're talking about?

[00:08:49] Speaker 04:
Well, the other scenario for jurisdiction here is simply to look at the

[00:08:58] Speaker 04:
court's authority under Rule 43A to evaluate a decision of law, application of a statute that entitles the benefit in our case to SAH benefits.

[00:09:14] Speaker 04:
That created a right in him and a right that allows her to be substituted

[00:09:22] Speaker 04:
at the court without going through any determination by the VA.

[00:09:27] Speaker 01:
Where does that come from?

[00:09:31] Speaker 01:
You're saying in any case there's a right to substitute?

[00:09:34] Speaker 04:
There's a right to review agency action, and that would qualify as an agency determination subject to review for which she meets substitution standards because she... What substitution standards does she meet?

[00:09:47] Speaker 04:
She has to work with an interest, legal interest.

[00:09:50] Speaker 04:
She's a core appointed representative of the estate.

[00:09:53] Speaker 04:
She incurred expenses of less sickness.

[00:09:56] Speaker 04:
She would be subject to reimbursement for some of her expenses if she's so qualified.

[00:10:02] Speaker 03:
So, yeah, she... If you would just rely on Rule 34, that would have applied

[00:10:10] Speaker 03:
to any of these cases, we wouldn't have needed Padgett, we wouldn't have needed 5121 Big A enacted by Congress to allow substitution of the Boehler.

[00:10:21] Speaker 03:
None of that would have been required at all if you had Rule 40A was sufficient to allow anybody that was the representative of this state.

[00:10:29] Speaker 04:
See, the problem we're dealing with is that

[00:10:32] Speaker 04:
Congress created and the VA was supposed to issue regulations that administered programs for substitution in cases where the veteran died.

[00:10:42] Speaker 03:
It did not administer... Well, but that's at the board anyway.

[00:10:48] Speaker 03:
5121A, at least as found by the Veterans Court, I don't know that we've looked at it yet, applies to the board.

[00:10:54] Speaker 03:
Breed lab applies to the court.

[00:10:57] Speaker 04:
Well, 5121A, no.

[00:11:00] Speaker 03:
it refers to, in fact, a 5121 large A. It says, if it's a big A. Look, I don't need to get into a dispute about whether 5121 big A applies to the Veterans Court or not.

[00:11:13] Speaker 03:
They found it doesn't, and they filled the gap with brew love.

[00:11:17] Speaker 03:
And they're largely duplicative anyway.

[00:11:22] Speaker 03:
So I don't understand why it's an important legal argument.

[00:11:25] Speaker 03:
You have to show,

[00:11:27] Speaker 03:
that you were supposed to be substituted under a big bump.

[00:11:30] Speaker 03:
And unfortunately, you didn't.

[00:11:33] Speaker 02:
Mr. Norton, can I ask you a question?

[00:11:35] Speaker 02:
Getting back to 5121A6, there's in all of the cases, et cetera, none of the all of the cases, in other words, what is 5121A6 getting to?

[00:11:50] Speaker 02:
Who is someone who qualifies for the all other cases?

[00:11:57] Speaker 04:
Well, it could be a case for non-occurring benefits, just like our situation.

[00:12:00] Speaker 02:
What kind of person is it?

[00:12:03] Speaker 02:
Is it someone who is claiming accrued benefits?

[00:12:08] Speaker 04:
Well, I think the structure of that section is to rank by order of priority who are the familiar

[00:12:23] Speaker 04:
familial members.

[00:12:24] Speaker 04:
We should be eligible and at the bottom is someone who has paid last expenses of sickness.

[00:12:34] Speaker 02:
Even if they're not a family member.

[00:12:36] Speaker 01:
But it's limited to someone to taking the money out of crude benefits.

[00:12:44] Speaker 01:
It has to be someone who is eligible for crude benefits.

[00:12:47] Speaker 04:
Isn't that what it says?

[00:12:50] Speaker 04:
Because the earlier reference in 5121 large A refers to any benefit.

[00:12:58] Speaker 01:
Look at 6.

[00:12:59] Speaker 01:
It says, in all other cases, only so much of the accrued benefits may be paid as may be necessary.

[00:13:06] Speaker 01:
We're just talking about payment of accrued benefits.

[00:13:11] Speaker 01:
So there has to be eligibility for accrued benefits for six to even come into play, right?

[00:13:17] Speaker 04:
Well, I don't think that's the way that section should be read, because it says,

[00:13:23] Speaker 04:
In all other cases, only so much of the accrued benefits may be paid as necessary to reimburse the person who bore the expense of last sickness.

[00:13:32] Speaker 04:
So really, what they're identifying here is the who, as Frazier says, the who.

[00:13:38] Speaker 04:
That's what this... And the who is somebody who simply pays the... But the who is very structured.

[00:13:46] Speaker 02:
Mr. Moore, wasn't the who someone who

[00:13:50] Speaker 02:
well-being rules is eligible for a crude benefit no no and that is not the way that this should be read it's simply someone who pays let's say for example a friend absolutely so there was a friend of the deceased veteran who he or she just came in spontaneously and paid that's right frazier talked about that scenario and what frazier said was well in that case

[00:14:18] Speaker 04:
that person should be limited to the expenses of last sickness and burial.

[00:14:26] Speaker 04:
So you can qualify if that's all you do.

[00:14:28] Speaker 04:
You don't have to submit your own claim for approved benefits.

[00:14:32] Speaker 04:
You can qualify if you do that, and she did that.

[00:14:35] Speaker 03:
Now, what's... But in Frasier, the person seeking to be substituted, it proved that they were eligible for accrued benefits.

[00:14:47] Speaker 01:
But you don't have to go through that step... Frasier says he holds that an accrued benefit recipient under... They're talking about an accrued benefit recipient who is covered by six, right?

[00:15:00] Speaker 04:
No, it refers to so much of the accrued benefits may be paid.

[00:15:05] Speaker 04:
But then it talks about paid to whom, someone who bears expenses of last sickness.

[00:15:11] Speaker 04:
So Frazier talked about the scenario.

[00:15:13] Speaker 04:
Frazier is all about accrued benefit.

[00:15:15] Speaker 04:
It's that we don't want to allow someone to come and pay for funeral flowers.

[00:15:21] Speaker 01:
Excuse me.

[00:15:23] Speaker 01:
Frazier talks about an eligible accrued benefit recipient.

[00:15:28] Speaker 01:
And that is the person we're talking about under six.

[00:15:31] Speaker 01:
Right?

[00:15:32] Speaker 04:
Frasier says you can still get any benefit if you qualify under 5121 large A. All you have to do is show you then qualify as the who under 5121 sixth.

[00:15:44] Speaker 02:
No, the process just quoting from Frasier shows that it has to be someone who is eligible for accrued benefits.

[00:15:52] Speaker 02:
That's what Frasier just said.

[00:15:55] Speaker 04:
Well, if that's the meaning of Frasier and I don't think it was, then it's incorrect because the language here only says you have to incur the cost.

[00:16:04] Speaker 04:
What Frasier was trying to say was you can't come in and just buy a spray of funeral flowers and then seek to recover the whole SAH benefit.

[00:16:13] Speaker 04:
But that doesn't answer the question of what do you do with the rest of the benefit that should have been paid to the veteran if somebody comes in and does that.

[00:16:22] Speaker 04:
If they show he should have received this benefit,

[00:16:25] Speaker 04:
as we argue Ms.

[00:16:27] Speaker 04:
Hicks should have, then what should happen is she can, under this structure, receive the expenses she paid for last sickness and burial, but also we have to determine what happens to the rest of the benefit.

[00:16:46] Speaker 04:
So it's taken out of, this is a structure that allows you to take out of the decedent's estate what he should have been paid in the form of SAH benefits.

[00:16:55] Speaker 04:
Someone who just pays for flowers can get the flower expenses if they are eligible for that, but they don't get more.

[00:17:03] Speaker 04:
But that leaves open the question of what happens to the rest of the benefits and it also leaves open the question of whether, in our case,

[00:17:12] Speaker 04:
She simply should have been substituted for satisfying care.

[00:17:15] Speaker 01:
You're saying six doesn't apply at all in this case.

[00:17:18] Speaker 04:
It does apply, and she meets it.

[00:17:21] Speaker 04:
That's what I'm saying.

[00:17:22] Speaker 04:
Because all she has to do to meet it is to prove, as she did, without contradiction, that she incurred less expenses of sickness and burial.

[00:17:32] Speaker 04:
She did provide flowers, but she also paid for the spa that was treating him when he died.

[00:17:39] Speaker 01:
Why don't we hear from the other side?

[00:17:51] Speaker 00:
I'd like to start with some first principles in these substitution cases because they have a long history and there's been statutory changes along the way.

[00:18:02] Speaker 00:
A key principle is that there's a difference between procedural rules governing substitution, whether in court or at the VA, such as Rule 43 in the Veterans Court in this court or Rule 5121A in VA proceedings.

[00:18:15] Speaker 00:
There's a difference between those procedural rules versus the rules of entitlement that go to the case or controversy.

[00:18:21] Speaker 00:
Is there a benefit that remains in a case or controversy?

[00:18:24] Speaker 00:
And that question is decided by the substantive rule governing survival of the action, in this case, the original specially-adopted housing benefits claim.

[00:18:35] Speaker 00:
filed by Mr. Smith or whether, as in accrued benefits cases, that the survivor has their own claim that then results in ongoing controversy about the accrued benefits that were originally filed.

[00:18:48] Speaker 00:
I think this key distinction is the cause of some of the confusion about why it is that simply satisfying Rule 43 does not actually provide entitlement.

[00:18:57] Speaker 00:
This is exactly what the Court reasoning.

[00:18:58] Speaker 03:
I don't think there's any confusion that Rule 43 doesn't provide a basis for substitution.

[00:19:03] Speaker 03:
It has to show it has to be the 5121A, big A at the agency or breed love at the court.

[00:19:12] Speaker 03:
Can I ask you, does the secretary agree with Frazier

[00:19:20] Speaker 03:
I can't speak to that specifically because it's- I think your position here is that the special adaptive housing claim dies with the veteran, isn't it?

[00:19:32] Speaker 00:
That's right.

[00:19:33] Speaker 03:
So that there can be no substitution on that claim at all.

[00:19:36] Speaker 01:
And is that because, and I'm sorry because this may be a very stupid question, is that because under six

[00:19:43] Speaker 01:
Are you saying it doesn't come under the expense of last sickness?

[00:19:48] Speaker 01:
Or are you saying because under six, there has to be a predicate of an eligibility for food benefits, which she hasn't established?

[00:19:56] Speaker 00:
So yes to the last question you asked.

[00:19:58] Speaker 00:
As to Fraser, I can't speak to whether Fraser itself is correct or not.

[00:20:02] Speaker 00:
The no mandate has yet issued.

[00:20:06] Speaker 00:
it may become a controversy before this court, I don't know.

[00:20:09] Speaker 00:
And I'm not in charge of saying it.

[00:20:10] Speaker 03:
It's really inconsistent with the argument you made to us.

[00:20:13] Speaker 00:
So what I can say is, here's how we understand 5121 and 5121A.

[00:20:16] Speaker 00:
5121A is a procedural rule.

[00:20:21] Speaker 03:
It's like rule 43, because it provides for- Can you just clarify and say 5121A?

[00:20:28] Speaker 03:
You're talking about big A now, right?

[00:20:30] Speaker 03:
Big A. OK.

[00:20:30] Speaker 00:
So 5121 big A.

[00:20:33] Speaker 00:
provides for substitution.

[00:20:35] Speaker 00:
That's like Rule 43.

[00:20:36] Speaker 00:
That's a procedural entitlement.

[00:20:38] Speaker 00:
And you wouldn't expect to find a substantive entitlement in a rule that only applies to VA proceedings.

[00:20:44] Speaker 00:
And in Breedlove, the court said it only applies to VA proceedings.

[00:20:47] Speaker 00:
And in footnote two, in Merritt, this court also repeated that, although it wasn't directly at issue.

[00:20:55] Speaker 03:
So we're to... But essentially, I don't mean to keep it an epic, the court filled in the gap

[00:21:03] Speaker 03:
with Breedlove and said, we're going to adopt essentially the same policy with Breedlove.

[00:21:06] Speaker 00:
Yeah.

[00:21:07] Speaker 03:
I think that the 51-20-1 Big A. Exactly.

[00:21:10] Speaker 00:
So I think what the court recognized in Breedlove, and this court essentially adopted it in Reeves, although Reeves was undercut later because it involved an informal claim, but that the enactment of 51-21 A recognized that there actually is a harm from the accrued benefit claimant having to start over.

[00:21:31] Speaker 00:
at the VA level.

[00:21:34] Speaker 00:
Someone who is a accrued benefits claimant can then continue on.

[00:21:43] Speaker 00:
This is all about substitution, but then when you are looking to entitlement,

[00:21:50] Speaker 00:
does the, so again, the premise here is that the claim terminates upon the veteran's death, so.

[00:21:56] Speaker 03:
What's your support for the notion that, especially about the health and claim, terminates upon death?

[00:22:03] Speaker 00:
Yeah, so I think this principle is so well established when it comes to disability benefits that it's not discussed in great detail why it's true.

[00:22:11] Speaker 00:
I think to go back to the Richard case.

[00:22:13] Speaker 03:
We need some troubling language.

[00:22:14] Speaker 03:
I understand you had a point that you ran 21 big A as a procedural rule.

[00:22:19] Speaker 03:
But it does have some very bad language about substitution for any claim administered by, for benefits administered by the secretary, which is land fascia.

[00:22:30] Speaker 03:
They said it includes substitution for special adaptive housing claims.

[00:22:36] Speaker 00:
Right.

[00:22:36] Speaker 00:
It says substitution, not payment, 5121 governs payment.

[00:22:41] Speaker 00:
5121 big A governs substitution, like rule 43.

[00:22:46] Speaker 00:
The A where it talks about any benefit, what you can do with any benefit is the person, the proposed substitute can, quote, file a request to be substituted as the claimant for the purpose of processing the claim.

[00:23:01] Speaker 00:
So they can file the request under 5121A, big A. And then actual substitution is governed by 5121A, big A, three.

[00:23:11] Speaker 00:
Big A, subsection A, three.

[00:23:13] Speaker 00:
which says substitution is governed by relief.

[00:23:16] Speaker 03:
Theoretically, I guess your view is if she had followed the procedures laid out in read left, she could have been substituted in for the substantive housing, or special SAH.

[00:23:27] Speaker 03:
I'm just trying to say it out.

[00:23:30] Speaker 03:
But your view is that she wouldn't be entitled to abandonment to any of the relief.

[00:23:37] Speaker 03:
I'm sorry.

[00:23:38] Speaker 03:
Can I just ask this?

[00:23:40] Speaker 03:
Do we need to reach any of these questions?

[00:23:43] Speaker 03:
Because under Breed Lab, the court set out the criteria for substituting in, and even if we assume that you ran and she can substitute in for SAH benefits, she didn't meet the other criteria.

[00:23:59] Speaker 03:
At least the Veterans Court's found that she didn't meet the other criteria, which is she didn't show

[00:24:05] Speaker 03:
that she was entitled to accrued benefits.

[00:24:08] Speaker 00:
Right.

[00:24:08] Speaker 00:
I mean, that's kind of debatable.

[00:24:10] Speaker 03:
I don't understand why the Secretary would necessarily oppose that here.

[00:24:13] Speaker 03:
You know, if she is the adult daughter, she said she paid for at least, like, some funeral expenses.

[00:24:18] Speaker 03:
But none of that is anything we can do to solve it.

[00:24:20] Speaker 03:
And it isn't that for this positive issue here that I would believe that she hasn't met the criteria for substitution.

[00:24:28] Speaker 00:
Right.

[00:24:28] Speaker 00:
So at appendix page 83 is the motion for substitution.

[00:24:33] Speaker 00:
Ms.

[00:24:33] Speaker 00:
Hicks asked to substitute under 5121A.

[00:24:36] Speaker 00:
That requires that there be an eligible accrued benefits claimant, and eligibility is decided under 5121A, subsection B, pursuant to the terms of 5121, which is decided by the Secretary.

[00:24:49] Speaker 00:
So it's clear that if she wants to pursue her own claim for occurred benefits, that has to be a separate app.

[00:24:57] Speaker 00:
It's her own claim.

[00:24:58] Speaker 00:
She has to apply to the VA to do that, to be found to be eligible.

[00:25:02] Speaker 03:
Sure.

[00:25:02] Speaker 03:
But in three minutes, the clerk kind of left a little bit of room for herself to say, it could do a number of things when faced with this motion.

[00:25:10] Speaker 03:
It could either decide it outright if the secretary didn't oppose.

[00:25:14] Speaker 03:
It could remand to the board to make a determination, or it could wait for her to file for a claim.

[00:25:19] Speaker 03:
So are you saying that those first two are impossible, that she always has to file a claim for accrued benefits?

[00:25:28] Speaker 00:
She has to file the claim.

[00:25:30] Speaker 00:
The secretary would not be consenting if she wasn't eligible.

[00:25:36] Speaker 00:
So the fact that the secretary could represent, yes, she has gone through the required procedures.

[00:25:42] Speaker 00:
She's eligible.

[00:25:43] Speaker 00:
That doesn't mean that she doesn't have to go at all.

[00:25:45] Speaker 00:
And merit, this court's decision in merit specifically said, you have to.

[00:25:49] Speaker 03:
I think that- So in response to this motion, the court could have sent it back to the secretary and said, see if she's filed a claim yet.

[00:25:58] Speaker 00:
That's kind of what they did, I think.

[00:26:02] Speaker 03:
Didn't they ask the secretary a couple of times if she has filed a claim?

[00:26:06] Speaker 03:
And your response continuously, and I think the record supports that, even though we don't get to decide that is, she has not.

[00:26:12] Speaker 00:
That's right.

[00:26:13] Speaker 00:
The Veterans Court asked repeatedly, both Ms.

[00:26:16] Speaker 00:
Hicks and the Secretary, for any information about a claim, none was filed.

[00:26:20] Speaker 00:
What I think the alternative basis that was never developed before the Court and still hasn't been developed by Ms.

[00:26:26] Speaker 00:
Hicks here, who bears the burden to demonstrate eligibility to substitute, is the theory that actually, unlike disability benefits, which terminate upon the Veterans' death, well, this Court has said more generally that Veterans' benefits terminate

[00:26:40] Speaker 00:
But the theory, I think, that Ms.

[00:26:42] Speaker 00:
Hicks is proposing is that actually specially-debit housing benefits do not terminate.

[00:26:47] Speaker 00:
And there's never been any development of that.

[00:26:49] Speaker 00:
And it's contrary to the rule this court has recognized in many, many cases.

[00:26:54] Speaker 00:
And it's contrary.

[00:26:54] Speaker 00:
I think the most recent decision that's considered this in detail is Richard.

[00:26:59] Speaker 00:
where the court explained that when you look to Title 38, you see that Congress was making decisions about awarding benefits to veterans and then awarding benefits to dependents and survivors.

[00:27:11] Speaker 03:
And there's a long list of these types of benefits.

[00:27:19] Speaker 03:
the extent of which survivors and other people related to the veterans can receive money from the secretary based on the veteran's heart benefits?

[00:27:28] Speaker 00:
Yes.

[00:27:29] Speaker 00:
Exactly.

[00:27:29] Speaker 03:
And so when you... And that's going to be your argument when you appeal to Frasier that it's wrong because 5021, letter A, is only talking about accrued benefits and who can receive the portion of accrued benefits that are still, were available and should have been given to the veteran.

[00:27:48] Speaker 00:
No comment.

[00:27:49] Speaker 01:
Can I just ask you a general question about this housing benefit thing?

[00:27:56] Speaker 01:
If you look at it in one way, it seems like of course not.

[00:28:01] Speaker 01:
You can't substitute in.

[00:28:03] Speaker 01:
Because generally, if you look at it as this is something the veteran applies for, and if the veteran sadly dies before he's awarded the benefit, then there's no point in having someone else

[00:28:16] Speaker 01:
get something built for him if he's no longer alive.

[00:28:19] Speaker 01:
This situation though is a little different because this envisions, and I don't know if this is typical or this is really unusual, where the veteran went ahead and paid the money and now he's seeking reimbursement for the money he's paid out.

[00:28:32] Speaker 00:
So the entitlement question is not a case-specific one.

[00:28:35] Speaker 00:
It's a claim-specific one.

[00:28:38] Speaker 00:
And so you use the same analysis that was done in Richard.

[00:28:40] Speaker 00:
You look to the overall statutory scheme.

[00:28:42] Speaker 00:
You see, is this a benefit that Congress intended to be for a survivor or dependent, or is it a benefit that Congress intended to be for a veteran?

[00:28:49] Speaker 00:
And here, 2101, which is the specially-added housing benefit statute,

[00:28:55] Speaker 00:
says that the secretary may assist a disabled veteran.

[00:28:58] Speaker 00:
This is a veteran-specific benefit.

[00:29:00] Speaker 00:
And Ms.

[00:29:01] Speaker 00:
Hicks has never developed any argument for how it could be something else.

[00:29:05] Speaker 03:
Can I ask you a hypothetical?

[00:29:07] Speaker 03:
Yeah.

[00:29:07] Speaker 03:
Suppose that the veteran had survived through complete briefing and submission of this case to the Veterans Court.

[00:29:16] Speaker 03:
Could the pageant exception come in then and say,

[00:29:22] Speaker 03:
everything was done and just for the unfortunate timing, the veteran would have gotten these benefits.

[00:29:28] Speaker 03:
And so we're going to do a non-proton to whenever Patrick says we do.

[00:29:32] Speaker 03:
And then those benefits are awarded to the veteran.

[00:29:35] Speaker 03:
Presumably, they would go to his estate then.

[00:29:40] Speaker 00:
I don't think so for a few reasons, and that is different, of course, than what we have here.

[00:29:44] Speaker 03:
Yeah, we've got it.

[00:29:45] Speaker 03:
Paget is not equitable here.

[00:29:45] Speaker 00:
Right.

[00:29:46] Speaker 00:
But I don't think so for a few reasons.

[00:29:48] Speaker 00:
And Paget still requires that there be ongoing relevancy to the decision for it to be equitable to apply the non-protonc relief.

[00:29:55] Speaker 00:
So there still has to be a case or controversy.

[00:29:57] Speaker 00:
And the reason that there was a case or controversy in Paget was because there was a dependent, a spouse, who had the accrued benefits claim, their own claim,

[00:30:09] Speaker 00:
that had the same race, the same benefits, were in dispute.

[00:30:12] Speaker 00:
So there was ongoing relevancy to that decision that isn't present if the underlying claim itself terminates and there's no derivative claim or survivor's claim pending.

[00:30:24] Speaker 03:
Is it fair to say then the Secretary's view of 5121 Big A and the Veterans Court's extension of that and read that the whole plan of this is to deal with the procedural apprentice that resulted from the prior system where

[00:30:40] Speaker 03:
an accrued benefit claimant as a survivor of a veteran was always entitled to benefits in some form from accrued benefit claims, but they just had to start over.

[00:30:52] Speaker 03:
And all this was meant to do was address that unfairness of starting over, but now expand the universe of which benefits you could get.

[00:31:04] Speaker 00:
That's right.

[00:31:04] Speaker 00:
There's no amendment of the underlying understanding that this claim terminates upon the veteran's death.

[00:31:12] Speaker 00:
And there's no expansion of the actual right to payment for a derivative for benefits upon.

[00:31:18] Speaker 03:
But am I right that we've never addressed this question head on about whether post enactment of 5121 big A and breed law that you could substitute in for a non-accrued benefits claim?

[00:31:34] Speaker 00:
That's right.

[00:31:34] Speaker 00:
I don't think the court has.

[00:31:35] Speaker 00:
But I do think that if 5121 big A was as broad as being claimed here, merit, it's hard to see how merit comes out the same way.

[00:31:44] Speaker 02:
Mr. Barham, let me ask you a question.

[00:31:47] Speaker 02:
We discussed at some length with Mr. Martin 5121 A6.

[00:31:50] Speaker 02:
How do you say A6 operates in this case or doesn't operate?

[00:31:57] Speaker 02:
And who's covered by A6?

[00:32:00] Speaker 00:
So A6, we agree with Mr. Martin's sense that any person could fall under A6 to pursue an accrued benefits claim, which again is an accrued claim for periodic benefits.

[00:32:12] Speaker 00:
We don't have that here.

[00:32:14] Speaker 02:
You're saying any person could?

[00:32:17] Speaker 00:
Any person who is seeking an accrued benefits claim could, as long as they've paid the last expenses of sickness and burial.

[00:32:24] Speaker 02:
But the only people who could seek an accrued benefit claim are the one's relatives, right?

[00:32:31] Speaker 00:
No.

[00:32:31] Speaker 00:
So the 1 through 6 are the different people who could pursue an accrued benefits claim.

[00:32:37] Speaker 00:
6 is the only one that has the limitation that you can only get the amount that you've paid out in the expenses of last sickness and burial.

[00:32:46] Speaker 00:
Ms.

[00:32:47] Speaker 00:
Hicks is a child of Mr. Smith, but she's not a child in the definition provided by 5121 little a 2.

[00:32:56] Speaker 00:
because that only under, I think, section 104 of the statute, child is someone who's under 18 at the time of the death.

[00:33:05] Speaker 00:
So Ms.

[00:33:05] Speaker 00:
Hicks doesn't satisfy any of the listed dependents or spouse.

[00:33:12] Speaker 02:
She's not under 2A, 2B?

[00:33:15] Speaker 00:
No.

[00:33:16] Speaker 00:
Because she's under six.

[00:33:17] Speaker 01:
She's under six.

[00:33:18] Speaker 01:
If she's a person who bore the expense of last sickness and bear it.

[00:33:21] Speaker 00:
Well, she's not that either, because she's not seeking an accrued benefit claim.

[00:33:26] Speaker 00:
She's claiming that she boarded the last expenses of sickness and burial.

[00:33:33] Speaker 00:
There's no fact-finding on that, by the way.

[00:33:34] Speaker 02:
You're saying that in order to come under 6, as a predicate, you have to be someone seeking an accrued benefit claim.

[00:33:42] Speaker 00:
That's right.

[00:33:43] Speaker 02:
Whoever you are, if you're not seeking an accrued benefit claim, you're ineligible to come in under A6.

[00:33:52] Speaker 02:
That's right.

[00:33:53] Speaker 01:
And that is because the predicate language, only so much of the accrued benefits may be paid as may be necessary?

[00:34:01] Speaker 00:
Yes.

[00:34:01] Speaker 00:
And because one through six all fall under subsection A. And subsection A is saying what's being applied for.

[00:34:10] Speaker 00:
So it's applying to periodic monetary benefits.

[00:34:18] Speaker 00:
that were due and unpaid at the time of death, and that it has one through six.

[00:34:23] Speaker 00:
So all of 5121 is governing those periodic accrued benefits.

[00:34:27] Speaker 01:
And so that wouldn't cover the, would that cover the last sickness and burial, or are they just saying, well, last sickness and burial are special expenses, and we're going to let those come out of the accrual benefit pool?

[00:34:41] Speaker 00:
So I think what this is doing is not saying that the person can recover those last tickets to the burial as benefits.

[00:34:49] Speaker 00:
It's saying is if you have, let's say you spent $100 on one of these claims, you're eligible to get that much money back out of the accrued benefits pot.

[00:34:59] Speaker 00:
So you are a claimant for the accrued benefits, but the amount that you can recover is limited.

[00:35:04] Speaker 01:
But there has to be an accrued benefits pop.

[00:35:07] Speaker 01:
You can't just get that right.

[00:35:08] Speaker 00:
And in this case, there is none, because there was no claim for periodic benefits.

[00:35:12] Speaker 02:
You have to be the person claiming an accrued benefit.

[00:35:15] Speaker 00:
Yes, because this is a derivative claim.

[00:35:17] Speaker 00:
And these are the eligibility requirements to seek a derivative claim for accrued benefits.

[00:35:21] Speaker 03:
I mean, potentially, there were accrued benefits if he was getting, I don't know, if he was actually getting periodic benefits or not.

[00:35:28] Speaker 03:
If he was, and if he died before he got a payment, something, they could have gotten money out of that.

[00:35:34] Speaker 03:
but not the SAH.

[00:35:36] Speaker 00:
Right.

[00:35:38] Speaker 00:
And there was a letter from the VA to the estate saying, if there is a surviving spouse, you would be eligible for one.

[00:35:45] Speaker 03:
Can I just ask one more question?

[00:35:48] Speaker 03:
Oh, of course.

[00:35:50] Speaker 03:
It seemed to me we were discussing earlier that a lot of these questions, we don't have to decide here.

[00:35:57] Speaker 03:
And really, because she did it as a matter of fact, or at least application of all the

[00:36:04] Speaker 03:
proved that she was entitled for accrued benefits.

[00:36:09] Speaker 03:
So even if we disagreed with you on the phrase or that SAH benefits, she still doesn't meet any of those.

[00:36:15] Speaker 03:
But those are questions that we don't have jurisdiction over.

[00:36:18] Speaker 03:
So if that's the way we're going to look at this, isn't this a dismissal for lack of jurisdiction rather than an affirm?

[00:36:24] Speaker 03:
I know you didn't add it that way in your brief, but it's important to us and I know to the secretary to keep these things straight.

[00:36:30] Speaker 00:
Yes, I think if the court understands her challenge to be about the Veterans Court's finding that there was no applications to secretary, that is something the court does not understand.

[00:36:42] Speaker 03:
I mean, I guess we probably still have to address, as a matter of law, her arguments about extending Padgett and entitlement under Rule 43, which are legal ones.

[00:36:50] Speaker 03:
So I guess... Right, there's some... Yes, okay.

[00:36:55] Speaker 01:
Thank you.

[00:36:56] Speaker 00:
Thank you.

[00:37:04] Speaker 04:
Your honor, I will concede that these provisions are very confusing and the law seems to be contradictory at times.

[00:37:15] Speaker 04:
There are three issues I'd like to address briefly in the time allotted to me.

[00:37:20] Speaker 04:
The first has to do with Judge Shearer's comment earlier on that why didn't the VA approve substitution?

[00:37:29] Speaker 04:
And I simply have no answer to that.

[00:37:33] Speaker 03:
this court because usually your client never submitted an application.

[00:37:41] Speaker 04:
We submitted at the VA a notice that we are seeking steps and no you didn't submit an application for accrued benefits.

[00:37:51] Speaker 04:
Not at the VA no because she was not seeking accrued benefits.

[00:37:56] Speaker 04:
This is why the court below is wrong.

[00:37:57] Speaker 04:
she was seeking substitution on a non-accrued benefit claim.

[00:38:02] Speaker 04:
That's a distinction that the lower court totally missed.

[00:38:07] Speaker 03:
The point I want to... I don't think they missed it.

[00:38:08] Speaker 03:
I think their case file says that even if you're seeking substitution on a non-accrued benefits claim, you have to follow the procedures in Breed Lab and establish that you're eligible for an accrued benefits claim.

[00:38:23] Speaker 04:
If we accept that as a given,

[00:38:26] Speaker 04:
then it still doesn't follow that the court and this court have to accept the secretary's finding as non-reviewable.

[00:38:37] Speaker 04:
They had evidence without question that she incurred these expenses of sickness and burial.

[00:38:44] Speaker 04:
They had evidence she was the probate-appointed representative of the estate.

[00:38:51] Speaker 04:
They had evidence that she

[00:38:55] Speaker 04:
had an interest as a potential beneficiary.

[00:38:58] Speaker 04:
They had all the evidence they needed.

[00:39:00] Speaker 04:
There was absolutely nothing more they could have had.

[00:39:03] Speaker 04:
But this court does not sit to rubber stamp a decision below that accepts a VA determination as gospel when it's contrary to all of the evidence in the record.

[00:39:15] Speaker 04:
It's not unreviewable.

[00:39:17] Speaker 04:
It's not absolute discretion.

[00:39:19] Speaker 04:
And that is where I disagree with the analysis of why this isn't

[00:39:25] Speaker 04:
appropriate for the court's jurisdiction.

[00:39:28] Speaker 04:
They don't get to say that whatever the VA says goes as to eligibility, particularly when they deal with a case where they don't have regulations that make it clear what you're supposed to do in order to qualify for a non-accrued benefit.

[00:39:46] Speaker 04:
Now, if you look at the record of what happened here, the VA waited until a year after death to tell us

[00:39:54] Speaker 04:
And there's an exchange in the joint appendix at page 334 that you should read.

[00:40:01] Speaker 04:
They waited until it was too late, essentially, to say, are you going to file an accrued benefit claim?

[00:40:07] Speaker 04:
Because we've taken the position all along there was no claim we could file for non-accrued benefits.

[00:40:13] Speaker 04:
They don't have one.

[00:40:15] Speaker 04:
So if their position was, all you got to do is file an accrued benefit claim, and we're going to accept it, they could have told us that long ago.

[00:40:23] Speaker 04:
They waited three months after the court ordered them to tell them their position, took an extra extension of time to say it.

[00:40:29] Speaker 04:
And then they come back and say, no, it's too late.

[00:40:31] Speaker 04:
You don't have a claim.

[00:40:33] Speaker 04:
That is not the kind of conduct that this court should rubber stamp.

[00:40:37] Speaker 04:
This court can't say what the VA does is not reviewable.

[00:40:41] Speaker 04:
They can't say, you can't say that

[00:40:44] Speaker 04:
If the VA had all the evidence to support substitution and disregarded it because they just didn't want to hear the case anymore, then that's fine.

[00:40:52] Speaker 04:
That's essentially what's going on here.

[00:40:54] Speaker 04:
Now, as to part A6.

[00:40:57] Speaker 01:
Quickly, because your time is up.

[00:40:59] Speaker 01:
I'm sorry.

[00:41:00] Speaker 01:
If you want to make one final brief point.

[00:41:02] Speaker 04:
We've gone over A6 before, and you've heard my opinion about it.

[00:41:08] Speaker 04:
My other brief point would be to look at the SAH regulations.

[00:41:12] Speaker 04:
Section 38 CFR 36.4406C.

[00:41:17] Speaker 04:
That says the Secretary should administer that program in a way that does, in accordance with equity and good conscience.

[00:41:25] Speaker 04:
So if there was a claim that was legitimate, in our view, it was their obligation to apply it that way, and they didn't do that in this case.

[00:41:33] Speaker 01:
Thank you.

[00:41:34] Speaker 01:
Thank you.

[00:41:34] Speaker 01:
Thank both sides.

[00:41:35] Speaker 01:
The case is suspended.

[00:41:36] Speaker 01:
That concludes our proceeding for this morning.