No. 96-1473

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

OPHEL H. ZEVALKINK AND ELEANOR M. HESSE,
PETITIONERS

v.

JESSE BROWN, SECRETARY OF VETERANS AFFAIRS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney 

DAVID M. COHEN
JAMES M. KINSELLA
MIGUEL A. SERRANO
ANDREA I. KELLY
Attorneys

Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

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QUESTIONS PRESENTED

    1. Whether, when a veteran dies while his or her
disability claim is pending on appeal, the veteran's
spouse must present any derivative claim for "ac-
crued benefits" under 38 U.S.C. 5121 in a new action
filed with the Department of Veterans Affairs.
    2. Whether, when pursuing such a derivative ac-
tion, the veteran's spouse is properly deemed, for
purposes of issue preclusion, to stand in the same
procedural position as the veteran at the time of the
latter's death.

(I)

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TABLE OF CONTENTS

Opinion below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 7
Conclusion . . . . 13

     TABLE OF AUTHORITIES

Cases:

Landicho v. Brown, 7 Vet. App. 42 (1994) . . . . 5, 6, 8, 9, 12
Roy v. Jasper Corp., 666 F.2d 714 (lst Cir.
1981) . . . . 11
Russell v. Principi, 3 Vet. App. 310 (1992) . . . . 4
Terrell v. DeConna, 877 F.2d 1267 (5th Cir.
1989) . . . . 11
Warth v. Seldin, 422 U.S. 490 (1975) . . . . 8

Statutes, regulation and rule:

Veterans' Benefits Improvements Act, Pub. L.
No. 104-275, Tit. V, 507, 110 Stat. 3343 . . . . 3
Veterans' Judicial Review Act of 1988, Pub. L.
No. 100-687, 102 Stat. 4105 . . . . 2
  38 U.S.C. 5108 . . . . 2, 4, 7, 10, 11
  38 U.S.C. 5112(b)(l) . . . . 5
  38 U.S.C. 5121 . . . . 3, 5, 7, 8, 9, 10, 11, 12
  38 U.S.C. 7104(b) . . . . 2, 4, 7, 10
  38 U.S.C. 7105(c) . . . . 4
  38 U.S.C. 7266(a) . . . . 6, 8
  38 U.S.C. 1110 . . . . 2
  38 U.S.C. 1131 . . . . 2
  38 C.F.R. 3.105(a) . . . . 2, 11
Court of Veterans Appeals R. Civ. P. 43(a) (38 U.S.C.
App. at 730 (Supp. V. 1993)) . . . . 5

Miscellaneous:

Restatement (Second) of Judgments (1982) . . . . 11

(III)

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1473

OPHEL H. ZEVALKINK AND ELEANOR M. HESSE,
PETITIONERS

v.

JESSE BROWN, SECRETARY OF VETERANS AFFAIRS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF" APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

    The opinion of the court of appeals (Pet. App. la-
16a) is reported at 102 F.3d 1236.1

JURISDICTION

    The judgment of the court of appeals was entered on
December 17, 1996. The petition for a writ of certio-
rari was filed on March 17, 1997. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

___________________(footnotes)

    1 The panel consisted of Chief Judge Archer and Judges
Rich and Michel. Judge Rich's name is inadvertently omitted
at Pet. App. la, but appears at 102 F.3d 1236.

(1)

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2

STATEMENT

    1. A veteran may file a claim for benefits with the
Department of Veterans Affairs (Department, or VA)
for a "disability resulting from personal injury suf-
fered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or dis-
ease contracted in line of duty, in the active military,
naval, or air  service." 38 U.S.C. 1110, 1131 The vet-
eran must first present the claim to a regional office
or other division of the Department; if the claim is
denied, the veteran may then appeal to the Board of
Veterans' Appeals (Board), which is also within the
Department.
    Until 1988, veterans generally had no right to
judicial review of final Board decisions denying their
disability claims.  In the Veterans' Judicial Review
Act of 1988, Pub. L. `No. 100-687, 102 Stat. 4105, how-
ever, Congress created the Court of Veterans Ap-
peals (CVA) specifically to review such decisions. If
denied relief in the CVA, a veteran may then, in
certain circumstances, seek further review in the
United States Court of Appeals for the Federal
Circuit and, ultimately, this Court.  As a general
matter, once the denial of a claim becomes final, "the
claim may not thereafter be reopened and allowed and
a claim based upon the same factual basis may not be
considered," 38 U.S.C, 7104(b), unless the claimant
identifies new and material evidence" to support the
claim, 38 U.S.C. 5108.  See also 38 C. F. R. 3.105(a)
(authorizing revision of administrative decisions
based on "clear and unmistakable error").
    Upon a veteran's death, certain close family mem-
bers-and specifically the veteran's spouse, if still
living-may- file a derivative claim for-the veteran's

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3

"accrued benefits" under 38 U.S.C. 5121. Neither
Section 5121 nor any other provision of law, however,
entitles a veteran's spouse to all benefits to which the
veteran would have been entitled had he or she
continued living.  Instead, it entitles an "accrued
benefits" claimant only to "periodic monetary bene-
fits * * * to which [the veteran] was entitled at
death under existing ratings or decisions, or those
based on evidence in the file at the date of death * * *
and due and unpaid for a period not to exceed two
years." Ibid.2
    2. a. James B. Zevalkink served on active duty in
the United States Army from 1943 to 1945.  In the
decades following his separation from the Army,  Mr.
Zevalkink filed a number of unsuccessful disability
claims, alleging that his service during the Second
World War had led to certain medical disorders,
including kidney disease.  See Pet. App. 19a-21a. Mr.
Zevalkink died on December 7, 1988.  Shortly there-
after, his widow,  petitioner Ophel Zevalkink, filed this
claim under Section 5121 for accrued benefits based
on, inter alia, the same kidney disorder that Mr.
Zevalkink had repeatedly alleged in his own disability
claims.  After lengthy administrative proceedings
before the VA's regional office, the Board ultimately
denied that portion of petitioner Zevalkink's accrued-
benefits claim on the ground that there was no "new
and material evidence" to justify reopening the
Board's earlier, and procedurally final, disposition of

___________________(footnotes)

    2 Section 5121 was amended in 1996 by the Veterans' Bene-
fits Improvements Act, Pub. L. No. 104-275, Tit. V, 507, 110
Stat. 3343, which changed the "due and unpaid" period from
one to two years.

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4

the kidney-related allegations in 1985.  Pet. App. 70a-
71; see generally 38 U.S.C. 5108, 7104(b)
    On appeal, the CVA affirmed.  The CVA first re-
jected petitioner Zevalkink's argument that, because
she herself had not been a party to the multiple
proceedings addressing Mr. Zevalkink's own dis-
ability claims, it would "unfair" to bar her from
relitigating the kidney-related allegations underlying
those claims based on the same evidence upon which
Mr. Zevalkink had unsuccessfully relied.  The CVA
reasoned that, in the absence of  "new and material
evidence," allowing a spouse to relitigate issues fully
and finally adjudicated during a veteran's lifetime
would ignore "the basically derivative nature" of an
accrued-benefits claim and undermine the "finality/
reopening provisions of * * * the VA claims
adjudication process."  Pet. App. 28a (citing Russell v.
Principi, 3 Vet. App. 310, 312 (1992), and 38 U.S.C.
7104(b), 7105(c), and 5108).  The CVA then affirmed
the Board's determination that petitioner Zevalkink
had in fact failed to identify "new and material
evidence" of service-connected kidney disease. Pet.
App. 32a-34a.
    b. In 1976, Burt Hesse, another veteran of the
Second World War, first applied for disability benefits
for pulmonary disease that he attributed to his
wartime service.  The regional office and the Board
denied that claim in 1977, and, during the ensuing 11
years, Mr. Hesse unsuccessfully sought to reopen his

___________________(footnotes)

    3 The Board also rejected on the merits the portions of
petitioner Zevalkink's accrued-benefits claim that were based
on her deceased husband's other alleged medical disorders.
Pet. App. 71a-74a.  That aspect of the Board's decision was
affirmed by the CVA, see id. at 34a-35a, and is not presented
for review in this petition.

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5

claim at least eight times. In 1990, the Board issued
its last decision denying Mr. Hesse's efforts to reopen
his claim, and, while an appeal from that decision was
pending in the CVA, Mr. Hesse died. Pursuant to
Rule 43(a) of its Rules of Practice and Procedure (see
38 U.S.C. App. at 730 (Supp. V 1993)): the CVA sub-
stituted petitioner Eleanor Hesse as the appellant
in her deceased husband's appeal.  In 1992, the CVA
vacated the Board's decision and remanded for con-
sideration of certain evidence that Mr. Hesse had
earlier submitted in support of his claim.  The Board
reaffirmed its earlier decision on the ground that the
authenticity of the evidence had not been proven, and
petitioner Hesse again appealed to the CVA.  Pet.
App. 4a-5a.
    Before the CVA addressed petitioner Hesse's ap-
peal from that ruling, however, it decided Landicho v.
Brown, 7 Vet. App. 42 (1994).  In Landicho, relying in
part on a portion of its earlier decision in petitioner
Zevalkink's case (see Pet. App. 23a-24a), the CVA held
that, when a veteran dies during the pendency of his
or her appeal of a denial of disability benefits, the vet-
eran's spouse may not be substituted as a party to the
appeal, but must instead file an original action with
the VA for accrued benefits under 38 U.S.C. 5121.
The CVA reasoned that, under 38 U.S.C. 5112(b)(l),
veterans' claims do not survive their deaths; that only
Section 5121 authorizes surviving family members to
derive benefits from a deceased veteran's claim; and

___________________(footnotes)
   
    4 That Rule provided, in relevant part, that "[i]f a party
dies after a Notice of Appeal is filed or while a proceeding is
pending in this Court, any person claiming entitlement to
accrued benefits under [38 U.S.C.  5121(a)], the personal
representative of the deceased party's estate, or any other
appropriate person may be substituted as a party."

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6

that accrued-benefits claims are distinct from disabil-
ity claims and must therefore be pursued in different
proceedings. 7 Vet. App. at 47-48.
    Finally, the CVA held that an accrued-benefits
claimant is not "adversely affected by, and therefore
lacks standing to challenge, an adverse disability-
benefits decision by the Board that is pending on
appeal at the time of a veteran's death.  7 Vet. App. at
49 (citing 38 U.S.C. 7266(a)).  The CVA reasoned that
once an original accrued-benefits proceeding is initi-
ated, the "claimant stands in the exact position vis-a-
vis adjudication of the deceased veteran's underlying
disability-compensation claim as did the veteran
immediately prior to his or her death,"  7 Vet. App. at
52, and that any Board decision pending on appeal at
the time of a veteran's death is "rendered a nullity"
for purposes of a subsequent accrued-benefits claim,
id. at 53.  As a result, an accrued-benefits claimant in
those circumstances, may present allegations already
rejected in the non-final (and therefore "nulli[fied]")
Board decision without thereby violating the "new
and material evidence"  standard.  See ibid.  The CVA
specifically corrected any "misapprehen[sion]" that
its earlier decision in petitioner Zevalkink's case sug-
gested a contrary conclusion.  Ibid.
    Because the CVA's decisions in Landicho and peti-
tioner Zevalkink's case were dispositive of petitioner
Hesse's efforts to be substituted as the appellant in
her deceased husband's disability-benefits case, the
parties jointly asked the CVA to dismiss the appeal
on the basis of those precedents and to permit an im-
mediate appeal of that dismissal to the Federal Cir-
cuit.  The CVA granted that joint request. Pet. App.
53a.

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7

    3. After consolidating the separate appeals of
petitioners Zevalkink and Hesse, the court of appeals
affirmed.  It first rejected petitioners' contention
that, evening the absence of'  "new and material evi-
dence," an accrued-benefits claimant may relitigate
issues finally decided against a deceased veteran as
part of a fill and fair adjudication of the latter's
disability-benefits claim.  Like the CVA, the court of
appeals held (Pet. App. 10a-11a) that, because peti-
tioners' claims for accrued benefits are derivative of
the deceased veterans' disability claims, petitioners
are as bound by the finality provisions of 38 U.S.C.
5108 and 7104(b) as the veterans themselves would
have been if they were still living.  The court then
held that, consistently with the CVA's decision in
Landicho, petitioner Hesse "is not `adversely af-
fected' by,'' and therefore lacks statutory authority to
challenge,  the CVA's requirement that she file an
original action with the VA for accrued benefits
rather than continue her deceased husband's appeal
for disability benefits.  Pet. App. 14a-15a.

ARGUMENT

1. Citing procedures employed under unrelated
federal benefits statutes (see Pet. 9-11), petitioner
Hesse asserts a right to be substituted for her de-
ceased husband and to continue the proceedings that
he originally initiated to recover disability benefits. 5
Because petitioner Hesse suffered no legally cogniza-
ble injury from the denial of such substitution, how-
ever, she lacks standing to contest it.  See generally

___________________(footnotes)

    5 Because petitioner Zevalkink brought her Section 5121
elaim by filing an original action in the VA, she does not allege
a right to be substituted in any proceeding initiated by her
husband and pending at the time of his death.

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8

Warth v. Seldin, 422 U.S. 490,498-499 (1975); see also
38 U.S.C. 7266(a) (party must be "adversely affected"
by Board decision in order to appeal it to CVA).
    In the "accrued benefits"  provision of Section 5121,
Congress prescribed the limited entitlement of a
veteran's surviving spouse to a portion of the benefits
to which the veteran was entitled at the time of his or
her death: specifically, the amount "due and unpaid for
a period not to exceed two years." 6  Petitioner Hesse
does not appear to claim entitlement to benefits
independently of Section 5121; in particular, she does
not assert a substantive right to benefits greater
than  what  Section  5121 provides to surviving spouses.
See, e.g.,  Pet. 3, 7, 11, 13-19; see also Pet. App. 6a n.4.
Instead,  she asserts a procedural right to have her
Section 5121 claim adjudicated as a continuation of
her deceased husband's disability proceedings rather
than, as required by Landicho v. Brown, 7 Vet. App.
42(1994), by bringing an original Section 5121 action
in the VA after her husband's death.
    The court of appeals held (Pet. App. 14a-16a), and
petitioner Hesse does not dispute, that she lacks
standing to challenge -the administrative exhaustion
requirement set forth in Landicho unless she can
show that it has caused her some substantive injury.
Petitioner Hesse does claim to have suffered such an
injury. In particular, throughout the petition, she

___________________(footnotes)
         
    6  Thus, even if petitioners were correct that "the back-
ground rule under all federal benefits statutes is that claims
survive the deaths of the claimant unless Congress' contrary
intent is explicit" (Pet. 9), that rule would be irrelevant here:
Congress could not have been more explicit in confining a
surviving spouse's substantive entitlement, upon the death of a
veteran, to the benefits described in Section 6121.  As discussed
in the text, petitioners do not appear to contend otherwise,

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9

maintains that, if she is not substituted for her
deceased husband in his disability-benefits appeal, she
will be "precluded" or "collaterally estopped" in any
original action under Section 5121 "from raising
issues pending on Mr. Hesse's appeal before his
death." Pet. 8; see also id. at i (question 2),7, 13-19.
    That assertion-which is both the jurisdictional
 premise of the first question presented in the petition
and a factual premise of the second (see Pet. i)-is
incorrect.  As the CVA made clear in Landicho, any
"nonfinal[]" administrative  adjudication  of a veteran's
disability-benefits claim is "rendered without force or
effect by his death-meaning that it then bec[omes] a
nullity" for purposes of a spouse's subsequent claim
for accrued benefits. 7 Vet. App. at 52; see p. 6, supra.
Put another way, upon filing a timely, original claim
for accrued benefits, a surviving spouse is no less free
to pursue the issues that were pending on a deceased
veteran's appeal than the veteran would have been if
he or she had not died.  See Landicho, 7 Vet. App. at
51-53.  Nothing in the court of appeals' decision in this
case is to the contrary.  Accordingly, petitioner
Hesse is not substantively harmed by, and therefore
lacks standing to contest, the requirement that she
file an original accrued-benefits action in the VA
rather than appear as a substituted party in her
deceased husband's appeal in the CVA. 7
    2. Petitioners also challenge the court of appeals'
holding that, in the absence of  "new and material evi-
dence," an accrued-benefits claimant generally may
not relitigate issues that were decided against the

___________________(footnotes)

    7 Petitioner Hesse does not contend, and the court of
appeals did not hold, that her accrued-benefits claim would be
barred as untimely.  See Pet. App. 13a, 15a.

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veteran as a necessary component of a final adjudica-
tion of the veteran's disability claim.  In petitioners'
view, because a surviving spouse was not a party to
the veteran's prior disability-benefits proceedings,
the spouse-unlike the veteran during his or her
lifetime-should not be bound by the final resolution
of any issues in those proceedings.  That position is
without merit.
    A surviving spouse's accrued-benefits claim is de-
rivative of a deceased veteran's disability claim in
that the spouse's entitlement is based on the vet-
eran's entitlement at the time of death.  Petitioners
contend that, in establishing a veteran's entitlement,
surviving spouses should be able to do what the
veterans themselves could not have done in pursuing
their own claims: rely on previously considered evi-
dence to reopen issues already finally decided against
them.  As the court of appeals suggested (see
Pet. App. 9a-1 la), however, it would be anomalous
for an accrued-benefits claimant-whose substantive
entitlement to benefits is derivative of a veteran's-to
stand in a procedural position superior to that occu-
pied by the veteran before his or her death. Nothing
in the text of Section, 5121 compels that result.  In-
deed, as the CVA observed (Pet. App. 28a-29a], peti-
tioners' effort to avoid the "new and material evi-
dence" requirement is inconsistent with the statute's
finality provisions, which specify that the identifica-
tion of such evidence is a precondition to filing a
"claim based on the same factual basis" as a prior
claim whose denial has become final.  38 U.S.C.
7104(b); see also 38 U.S.C. 5108.
    Petitioners also contend that it would violate due
process to require "new and material evidence" before
a surviving spouse may reopen factual issues finally

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11

decided against a deceased veteran. As a general rule,
however, a party asserting a wholly derivative claim
is bound by final decisions regarding the original
claim on which the new claim is based. See, e.g.,
Terell v. DeConna, 877 F.2d 1267, 1271-1272 (5th Cir.
1989) Roy v. Jasper Corp.,666 F.2d 714, 718(lst Cir.
1981); see also Restatement (Second) of Judgments
$48(2)(1982).  Application of that rule is particularly
appropriate here. Unlike common-law principles of
issue preclusion, this statutory scheme permits vet-
erans and their surviving spouses to relitigate issues
that have been decided against them if they either
identify "new and material evidence" on those issues,
38 U.S.C. 5108, or, in certain circumstances, demon-
strate that the previous decisions against them were
the product of "clear and unmistakable" error, 38
C.F.R. 3.105(a).  As this case illustrates, that scheme
permits claimants and their surviving spouses to con-
tinue litigating their entitlement to benefits arising
out of a single set of facts for many decades after the
underlying medical disabilities were allegedly in-
curred.  The statutory provisions at issue here, which
operate to impose some finality on litigation under
this exceptionally liberal procedural scheme, do not
violate due process.
    Finally, petitioners suggest (Pet. 14-15) that it
would be unfair to hold them to the "new and material
evidence" standard because Section 5121 permits con-
sideration only of  "evidence on file at date of death."
See generally Pet. App. 11a ("we interpret [Section
5121] as permitting the new adjudication of a prior
claim only if there is new and material evidence in the
fide which has not previously been considered").  As
an initial matter, that argument is not properly pre-

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12

sented here, because the petition identifies no "new
and material evidence" that would have justified re-
lief but for the requirement that the evidence appear
in a veteran's file at the time of death. Cf. Pet. App.
33a.  The evidence on which petitioner Hesse seeks to
rely, for example, was in her husband's file when he
died because, at that time, it was a subject of his
pending appeal in the CVA. See p. 5, supra.
    In any event, because a claim under Section 5121 is
derivative of a veterans own entitlement to benefits
while he or she was still living, Congress acted rea-
sonably in confining a surviving spouse's evidentiary
basis for claiming "accrued benefits" to the evidence
accumulated during the veteran's lifetime.  Although
that evidentiary rule may limit the opportunity of
some spouses to reopen issues that have long since
become final, that is only because Congress permissi-
bly determined that, for all relevant purposes, "an
accrued-benefits claimant stands in the exact position
vis-a-vis adjudication of the deceased veteran's under-
lying disability-compensation claim as did the veteran
immediately prior to his or her death." Landicho, 7
Vet. App. at 52.

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CONCLUSION

    The petition for a writ of certiorari should be
denied.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

DAVID M. COHEN
JAMES M. KINSELLA
MIGUEL A. SERRANO
ANDREA I. KELLY
Attorneys

MAY 1997