UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 04-1032

MILDRED NOLAN, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided August 30, 2006 )

Robert B. Haemer, of Washington, D.C., was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Richard

Mayerick, Deputy Assistant General Counsel; and Gary O'Connor, all of Washington, D.C., were

on the brief for the appellee.

Before KASOLD, MOORMAN, and SCHOELEN, Judges.

SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring

opinion.

SCHOELEN, Judge: The appellant, Mildred Nolan, through counsel, appealed a May 10,

2004, Board of Veterans' Appeals (Board) decision in which the Board (1) denied entitlement to an

effective date earlier than September 1, 1999, for the payment of accrued benefits and (2) determined

that 38 U.S.C. § 5310 did not allow her to receive additional retroactive benefits totaling the entire

sum of money that her husband, veteran Edward J. Nolan, would have received, but for his death,

during the month of his death. Record (R.) at 1-11. On September 19, 2005, the Secretary filed an

opposed motion to dismiss this appeal, stating that Mrs. Nolan's attorney had informed counsel for

the Secretary that Mrs. Nolan had died. On September 21, 2005, Maureen Gage, acting pro se, filed

an opposed motion to substitute herself for the appellant, stating that she is the daughter of

Mrs. Nolan. This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
2

§§ 7252(a) and 7266. For the following reasons, the Court will deny Mrs. Gage's motion, grant the

Secretary's motion, vacate the Board's decision as to the matter on appeal, and dismiss this appeal.

I. BACKGROUND

A. Mr. Nolan's Claims

Veteran Edward J. Nolan served on active duty in the U.S. Army from February 1942 to

December 1945. R. at 17. Service medical records indicate that while serving in Belgium in

September 1944, Mr. Nolan suffered a through-and-through gunshot wound in the right shoulder as

a result of enemy action. R. at 40.

In March 1949, Mr. Nolan submitted an application for disability compensation benefits for,

among other things, a right shoulder wound. R. at 58-61. In a September 19, 1949, decision, a VA

regional office (RO) granted service connection for "perforating, gunshot wounds r[igh]t shoulder

and r[igh]t back," effective March 29, 1949. R. at 73. He was assigned a 10% disability rating under

Diagnostic Code (DC) 5304. Id. In December 1949, November 1987, and November 1999

decisions, the RO determined that no increase in his 10% rating was warranted. R. at 87, 115, 120-

22.

In a December 1999 letter, Mr. Nolan requested that the September 19, 1949, RO decision

be revised on the basis of clear and unmistakable error (CUE). R. at 124-25. He specifically argued

that, because his gunshot wound was a through-and-through wound, he was entitled to a 20%

disability rating under DC 5303 based on an injury to Muscle Group (MG) III, in addition to the 10%

disability rating awarded under DC 5304 based on an injury to MG IV. Id. A May 2000 RO

decision found no CUE in the September 1949 RO decision. R. at 131-46. However, the RO

increased his rating for the residuals of a gunshot wound to 20%, effective July 22, 1999, based on

limitation of motion of the shoulder. Id. Mr. Nolan appealed this decision to the Board. R. at 150,

174.

An August 27, 2001, letter from a private doctor indicated that Mr. Nolan had been recently

diagnosed with myelodysplastic syndrome, a terminal illness. R. at 192. On September 5, 2001,

Maureen Gage, faxed that letter to the Board and asked that it be considered "as a Motion to

Advance on the Docket for my father, Edward J. Nolan." R. at 209. On September 10, 2001, a
 At the time of the initial RO decision in January 2002 on Mrs. Nolan's application for DIC, death pension, and 1

accrued benefits, the Board had not yet vacated its September 28, 2001, decision.

3

Deputy Vice Chairman of the Board granted the motion to advance the appeal on the Board's docket.

R. at 214. Mr. Nolan died on September 10, 2001. R. at 225.

On September 28, 2001, presumably acting without knowledge of Mr. Nolan's death, the

Board issued a decision concluding that the September 1949 RO decision was clearly and

unmistakably erroneous. R. at 216-22. The Board determined that the medical evidence before the

RO in September 1949 showed injury to both MG III and MG IV, and that a single 30% disability

rating should have been awarded under DC 5303, based on moderately severe injury to MG III in

the dominant arm. R. at 221. Accordingly, the Board awarded a 30% rating under DC 5303,

effective March 29, 1949. R. at 222.

After learning of Mr. Nolan's death, the Board issued a decision on February 21, 2002,

vacating the September 28, 2001, decision. R. at 252-53. The Board concluded that after

Mr. Nolan's death on September 10, 2001, it had been deprived of jurisdiction over his claim. Id.

The Board issued a second decision on February 21, 2002, dismissing Mr. Nolan's appeal for lack

of jurisdiction. R. at 247-49.

B. Mrs. Nolan's Claims

In October 2001, Mildred Nolan, Mr. Nolan's surviving spouse, filed an application for

dependency and indemnity compensation (DIC) benefits, death pension benefits, and accrued

benefits. R. at 228-32. In January 2002, the RO issued a decision denying entitlement to accrued

benefits and DIC benefits. R. at 237-42. With regard to accrued benefits, the RO stated that

Mr. Nolan was not entitled to any additional benefits at the time of his death and that the September

28, 2001, Board decision was a nullity, and, therefore, did not provide a basis for an award of

accrued benefits. R. at 238-39. With regard to DIC benefits, the RO determined that the cause of 1

Mr. Nolan's death was not related to military service. R. at 239-40. Mrs. Nolan filed a Notice of

Disagreement as to this decision and requested review by a decision review officer. R. at 244.

A March 2002 RO decision determined that there was CUE in the September 1949 RO

decision on Mr. Nolan's claim. R. at 257-63. The RO's decision was essentially in accord with the

now-vacated September 28, 2001, Board decision finding CUE in the September 1949 RO decision.
4

Compare R. at 257-58 (March 2002 RO decision) with R. at 216-22 (September 2001 Board

decision). The RO awarded a 30% disability rating for residuals of a gunshot wound to the right

shoulder under DC 5303, effective March 29, 1949. R. at 262. The RO also awarded entitlement

to a total disability rating based on individual unemployability (TDIU), effective December 13, 1999.

R. at 259-60, 262. Based on this decision, the RO awarded Mrs. Nolan accrued benefits. R. at 262.

The RO limited the award of accrued benefits to the two years prior to Mr. Nolan's death

(September 1, 1999, through August 31, 2001). Id.

Mrs. Nolan requested a Statement of the Case (SOC) regarding her DIC claim and requested

that accrued benefits be awarded back to September 1949. R. at 271, 285. In August 2002, the RO

issued an SOC denying accrued benefits for the period prior to September 1, 1999. R. at 288-95.

Also in August 2002, the RO issued a decision awarding service connection for the cause of

Mr. Nolan's death and awarding DIC benefits to Mrs. Nolan. R. at 297-99.

In October 2002, Mrs. Nolan filed a Substantive Appeal to the Board seeking accrued

benefits for the period dating back to September 1949. R. at 311-12. Mrs. Nolan, through attorney

Robert B. Haemer, requested a hearing before the Board and presented four written arguments. R.

at 319-28. First, Mrs. Nolan argued that 38 U.S.C. § 5310(a), which provides for the payment of

benefits to a surviving spouse for the month of the death of a veteran, allowed for the full payment

to Mrs. Nolan of the retroactive benefits Mr. Nolan was entitled to at the time of his death, rather

than the two years provided for in 38 U.S.C. § 5121(a). R. at 323-24. Her theory underlying this

argument was that, but for Mr. Nolan's death, he would have been paid the full retroactive award in

September 2001, and, therefore, those benefits would have been paid to him in the month that he

died. Second, she argued that the Board failed to follow proper procedures in vacating the

September 28, 2001, decision. R. at 324-26. Specifically, she argued that she was not provided

notice or an opportunity to be heard by the Board prior to the Board's February 21, 2002, decisions

vacating the September 28, 2001, decision and dismissing the appeal. She argued that, in light of

this error, under the Court's holding in Bonny v. Principi, 16 Vet.App. 504 (2002), she was entitled

to the full award of benefits due to Mr. Nolan. Third, Mrs. Nolan argued that the Board was not

deprived of jurisdiction over Mr. Nolan's claim upon his death. R. at 326-27. Finally, she argued

that she has an equitable right to the full amount to the disability compensation due to Mr. Nolan.
5

R. at 327-28. In November 2003, attorney Haemer personally appeared before the Board on

Mrs. Nolan's behalf to present her arguments. R. at 350-68.

On May 10, 2004, the Board issued the decision presently on appeal, rejecting each of

Mrs. Nolan's arguments. R. at 1-11. The Board first held that Mr. Nolan's death deprived the Board

of jurisdiction over his claim. R. at 3, 6. The Board held that 38 U.S.C. § 5310(a) applied to

Mrs. Nolan in this case. R. at 4. However, the Board stated that her payment would be limited to

the amount of "monthly" compensation that Mr. Nolan was due to receive for September 2001, and

not any retroactive benefits that he would have received during that month. R. at 5. The Board

stated that the appellant's arguments were inconsistent with 38 U.S.C. § 5121. Id. The Board held

that it had proper jurisdiction to vacate its September 28, 2001, decision based on 38 U.S.C.

§ 7103(c), which allows the Board to "correct an obvious error in the record." Id. The Board held

that the issuance of its September 28, 2001, decision after Mr. Nolan's death was an "obvious error"

that the Board could correct. R. at 5-6.

Furthermore, the Board concluded that it vacated the September 28, 2001, decision to avoid

a denial of due process to Mrs. Nolan, because an adverse decision on Mr. Nolan's CUE arguments

would have improperly bound Mrs. Nolan. R. at 6. The Board recognized that although, in this case,

Mrs. Nolan actually sought to be bound by the September 28, 2001, decision, the Board lacked

jurisdiction to issue a decision on Mr. Nolan's claim after his death because such action has the

potential affect of violating Mrs. Nolan's due process rights. R. at 6-7. The Board also rejected

Mrs. Nolan's Bonny argument, stating that Bonny was distinguishable because, in that case, the

veteran had died after VA issued a decision awarding the benefit sought, rather than before VA

issued its decision. R. at 8-9. Finally, the Board acknowledged the harshness of its decision and the

failure by VA to award Mr. Nolan the benefits he was entitled to during his life, but rejected Mrs.

Nolan's request for equitable relief, stating that it had no equitable authority to award benefits. R.

at 10. Accordingly, the Board held that Mrs. Nolan was not entitled to accrued benefits for the

period prior to September 1, 1999. Id.

C. Proceedings Before the Court

Mrs. Nolan filed a timely Notice of Appeal to this Court. On December 17, 2004, through

counsel, she filed a brief arguing for reversal of the May 2004 Board decision. She presented a novel
6

argument to the Court regarding the interpretation of 38 U.S.C. § 5310(a). She stated that the

Board's September 28, 2001, decision would have stood but for Mr. Nolan's death and, therefore, the

benefits he would have received in September 2001 were the entire retroactive payment due to him

as a result of the revision of the clearly and unmistakably erroneous September 1949 RO decision.

Appellant's Brief (Br.) at 11-13. Citing Bonny, supra, she stated that the "ministerial delay in

calculating the amount [of benefits] or sending a check lacks legal significance." Id. at 11. She

argued that death benefits and accrued benefits are legally distinct, that she is seeking death benefits,

and that the Board erred in referring to accrued benefits in rejecting her section 5310 argument. Id.

at 13-15. She characterized 38 U.S.C. § 5310(a) as a savings clause because of the broad language

describing "the amount of benefits the veteran would have received." Id. at 15-18. Mrs. Nolan

argued that the plain, broad language of the statute conflicted with the Board's narrow interpretation

of it and that the statute should be interpreted so that benefits include all benefits due for the month

of death, including retroactive benefits, and not limited to only monthly benefits. Id. She stated that,

if section 5310(a) is a savings clause, it need not be read in a manner consistent with 38 U.S.C.

§ 5121, the statute authorizing the payment of accrued benefits. Id. at 18-20. Finally, regarding

accrued benefits under section 5121, Mrs. Nolan explicitly stated that "[t]his appeal is not about the

award of accrued benefits paid to Mrs. Nolan for two years prior to the [v]eteran's death." Id. at 2.

The Secretary filed a brief asserting that the Board's decision should be affirmed. The

Secretary argued that Mrs. Nolan's arguments are contrary to the plain language of section 5310(a).

Secretary's Br. at 8-12. The Secretary argued that, rather than seeking benefits for the month that

Mr. Nolan died, she sought benefits for the 631 months between March 1949 and September 2001.

Id. at 8. The Secretary stated that section 5310(a) specifically provides only for the payment of

benefits "for that month" in which Mr. Nolan died. Id. at 10-12. The Secretary also argued that

Mrs. Nolan's interpretation of section 5310(a) is inconsistent with the legislative history of that

section. Specifically, the Secretary stated that the purpose of section 5310(a) is to prevent the award

of accrued benefits for periods of less than one month for the purpose of administrative convenience,

and it was not intended to be a savings provision. Id. at 13-14. The Secretary also argued that

Bonny, supra, is inapplicable to this case because Mr. Nolan died before the Board awarded him

retroactive benefits. Id. at 15-16. Finally, the Secretary argued that Mrs. Nolan's interpretation of
7

section 5310(a) is contrary to this Court's caselaw. Specifically, the Secretary argued that the effect

of her argument would be to hold that a request for revision of a prior decision on the basis of CUE

survives the death of the claimant, which would be contrary to the U.S. Court of Appeals for the

Federal Circuit's (Federal Circuit) holding in Haines v. West, 154 F.3d 1298, 1302 (Fed. Cir. 1998).

Id. at 16.

Mrs. Nolan subsequently filed a reply brief addressing the Secretary's arguments, a motion

for oral argument, and a memorandum of law addressing this Court's decision in Mayfield v.

Nicholson, 19 Vet.App. 103 (2005), rev'd, 444 F.3d 1328 (Fed. Cir. 2006). The Secretary filed an

opposition to the motion for oral argument and a response to Mrs. Nolan's memorandum of law

addressing the Court's Mayfield decision.

On September 19, 2005, the Secretary filed an opposed motion to dismiss this appeal as

moot. The motion states that attorney Haemer informed counsel for the Secretary that Mrs. Nolan

had died. The Secretary argued that, under the Court's holding in Landicho v. Brown, 7 Vet.App.

42, 44 (1994), when a veteran seeking disability compensation benefits dies while his appeal is

pending before the Court, substitution is not appropriate, but instead, the appropriate remedy is to

vacate the Board's decision and dismiss the appeal. The Secretary further stated that in Erro v.

Brown, 8 Vet.App. 500, 501-02 (1996), the Court held that the logic of its Landicho holding extends

to the substitution of one dependent for another in DIC claims.

On September 21, 2005, Maureen Gage, acting pro se, filed an opposed motion to substitute

herself in place of the appellant. She states that Mrs. Nolan was her mother and that substitution

would be appropriate based on the Court's routine practice prior to 1994. She further asserts that the

circumstances surrounding this case are unlike those in which the Court has deemed substitution

inappropriate, such as in Landicho, supra. On October 6, 2005, the Secretary filed an opposition to

the motion to substitute, relying on the reasoning set forth in the September 19, 2005, motion to

dismiss.

On October 11, 2005, attorney Haemer filed an opposition to the Secretary's motion to

dismiss. He states that the Court should exercise its discretion and grant Mrs. Gage's motion to

substitute in the interest of judicial efficiency in order to "materially advance Mrs. Gage's claim for

accrued benefits," because the issues involved have already been addressed by the Board and briefed
8

for the Court. He argues that Landicho, supra, is not controlling because the purpose of Landicho

and its progeny is to preserve a dependent's claim by vacating an underlying adverse Board decision.

In this case, he argues, vacating the underlying decision would involve vacating a decision that was

partially favorable to Mrs. Nolan. Finally, he argues that Erro, supra, is not controlling because that

case explicitly did not reach the issue of substitution of one dependent for another when the

underlying claim is for accrued benefits rather than DIC benefits.

On February 17, 2006, the Court issued an order to the Secretary to certify to the Court

whether Mrs. Gage is an eligible accrued-benefits beneficiary based on the death of Mrs. Nolan. On

April 18, 2006, the Secretary responded to the Court's orderstating that Mr. Nolan's claims file does

not have records sufficient to certify that Mrs. Gage is Mr. Nolan's daughter. The Secretary stated

that he was not concluding that Mrs. Gage was not Mr. Nolan's daughter, but that the evidence

presently in the claims file was not conclusive regarding that issue. Attached to the Secretary's

response are the references to Mrs. Gage in the record before the Court. See R. at 91 (1959

application for benefits stating that Mr. Nolan has two children, named "Maureen" and "Linda"), 178

(2001 letter from Mrs. Gage to the office of Senator Edward M. Kennedy regarding Mr. Nolan's

claim), 209 (2001 cover sheet from a faxed motion to advance Mr. Nolan's appeal on the docket),

225 (Mr. Nolan's death certificate stating that "Maureen P. Gage" informed the Commonwealth of

Massachusetts of Mr. Nolan's death and indicating her relationship as "daughter"); see also R. at 61

(1949 application stating that Mr. Nolan has one child born in 1948 named "Linda Marie").

On April 21, 2006, attorney Haemer filed a motion for leave to supplement the Secretary's

response. The motion purports to provide all the evidence necessary to find that Mrs. Gage is

Mr. Nolan's daughter. Attached to that motion is (1) a copy of a signed document from the City of

Salem, Massachusetts, Office of City Clerk, indicating that "Maureen Nolan" was born in Salem on

August 24, 1951; (2) a copy of a birth certificate for "Colleen Nolan Richard" indicating that she was

born on April 24, 1982, to "Dennis Everett Richard" and "Maureen Patricia Nolan;" and (3) a

certificate of marriage indicating that "Maureen Richard" and "Robert Gage" were married on

May 28, 1994. Finally, the motion states that the 1949 application does not list Mrs. Gage because

the application predates her birth.
 The law regarding accrued benefits has changed since the initial award in this case. First, in 2003, Congress 2

amended 38 U.S.C. § 5121(a) to remove the two-year limitation on the payment of accrued benefits. See Veterans

Benefits Act of 2003, Pub. L. No. 108-183, § 104(a), 117 Stat. 2651, 2656. This change only applies to deaths occurring

on or after December 16, 2003. See id., Pub. L. No. 108-183, § 104(d). Second, on the same day the Board issued the

decision presently on appeal, the Federal Circuit issued a decision interpreting the language in section 5121(a) limiting

the award of accrued benefits to two years to mean any two-year period during a beneficiary's life, rather than the two

years immediately preceding death. See Terry v. Principi, 367 F.3d 1291 (Fed. Cir. 2004). However, in this case,

Mr. Nolan died before December 16, 2003, and the two-year period resulting in the maximum award of accrued benefits

would be the two years immediately preceding Mr. Nolan's death. Thus, neither of these changes has any effect on

Mrs. Nolan's claims.

 In its 2003 amendment to section 5121(a), Congress deleted the comma relied upon by the Court in Bonny 3

to distinguish between the two types of benefits. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104(c)(1),

117 Stat. 2651, 2656.

9

II. ANALYSIS

A. 38 U.S.C. § 5121 and 38 U.S.C. § 5310

The version of 38 U.S.C. § 5121 in effect at the time Mrs. Nolan filed her claim for accrued

benefits provided, in pertinent part:

(a) . . . [P]eriodic monetary benefits . . . under laws administered by the Secretary to

which an individual was entitled at death under existing ratings or decisions, or those

based on evidence in the file at date of death (hereinafter in this section . . . referred

to as "accrued benefits") and due and unpaid for a period not to exceed two years,

shall, upon the death of such individual be paid as follows:

. . . .

(2) Upon the death of a veteran, to the living person first listed

below:

(A) The veteran's spouse;

(B) The veteran's children (in equal shares);

(C) The veteran's dependent parents (in equal shares);

(3) Upon the death of a surviving spouse or remarried surviving

spouse, to the children of the deceased veteran;

. . . .

(5) In all other cases, only so much of the accrued benefits may be

paid as may be necessary to reimburse the person who bore the

expense of last sickness and burial.

. . . .

(c) Applications for accrued benefits must be filed within one year after the date of

death.

38 U.S.C. § 5121 (2002).2

In Bonny, supra, the Court held that section 5121(a) created two distinct types of benefits.3

16 Vet.App. at 507. First, section 5121(a) provided for the award of "benefits awarded but unpaid"
10

under existing ratings or decisions at the time of a claimant's death, which are not subject to a twoyear limitation. Id. Second, section 5121(a) provided for the award of "accrued benefits," which are

benefits a claimant is entitled to based on evidence in his or her claims file at the time of death, and

are limited to a two-year period. Id. at 507-08.

The term "periodic monetary benefits" in section 5121(a) excludes one-time lump-sum

payments, such as a payment for specially adapted housing. See Papalardo v. Brown, 6 Vet.App.

63, 65 (1993) (holding that payments for specially adapted housing are not "periodic monetary

benefits" because such benefits may be paid only once). "Periodic monetary benefits" also do not

include benefits that may be paid more than once, but are not paid at regular intervals, such as

automobile purchase payments. See Gillis v. West, 11 Vet.App. 441, 442-43 (1998) (holding that

automobile purchase payments cannot be claimed under section 5121 because, although such

benefits may be paid more than once, payment is not made periodically, meaning at regular

intervals). However, retroactive awards of disability compensation benefits are considered "periodic

monetary benefits," even though the actual payment of retroactive benefits is made in a one-time

lump-sum payment, because the benefits that the claimant had been entitled to receive during his or

her lifetime would have been paid monthly. See Wilkes v. Principi, 16 Vet.App. 237, 241-42 (2002).

The definition of "children" in section 5121 is not the commonly understood definition, but

rather, "child" is expressly defined in 38 U.S.C. § 101(4)(A) as a person who is unmarried and (1)

under the age of 18; or (2) became permanently incapable of self-support before the age of 18; or (3)

under the age of 23 and pursuing a course of instruction at an approved educational institution. See

Burris v. Principi, 15 Vet.App. 348, 352-53 (2001).

The effective date of an award of DIC benefits, in cases where an application is received

within one year of the death of a veteran, is the first day of the month in which the death occurred.

See 38 U.S.C. § 5110(d)(1). However, 38 U.S.C. § 5310(a) may provide for an increased payment

for the month the veteran dies.

If, in accordance with the provisions of section 5110(d) of this title, a surviving

spouse is entitled to death benefits under chapter 11, 13, or 15 of this title for the

month in which a veteran's death occurs, the amount of such death benefits for that

month shall be not less than the amount of benefits the veteran would have received

under chapter 11 or 15 of this title for that month but for the death of the veteran.
11

38 U.S.C. § 5310(a); see also 38 U.S.C. § 5310(b) (discussing payments to a surviving spouse for

the month of a veteran's death in cases where the surviving spouse is not entitled to benefits under

chapters 11, 13, or 15 of title 38, U.S. Code). Essentially, section 5310(a) provides that, for the

month that a veteran dies, a surviving spouse is entitled to receive the greater of (1) the amount of

the disability compensation or pension benefits the veteran would have received for the month of

death but for the veteran's death, or (2) the amount of the death benefits the surviving spouse would

be entitled to for the month of the veteran's death. As the Secretary observes in his brief, only two

cases have cited section 5310 and neither discuss its substantive provisions. See Zevalkink v. Brown,

102 F.3d 1236, 1242 (Fed. Cir. 1996) (discussing section 5310 in the context of defining the term

"death benefits"); Burris, 15 Vet.App. at 351 (stating that benefits were awarded to the appellant

under sections 5121 and 5310).

B. Landicho v. Brown

Because of itsstatus under Article I ofthe U.S. Constitution, thisCourt is not constitutionally

bound by the case or controversy restraints on the judicial power of Article III courts. See 38 U.S.C.

§ 7251; Mokal v. Derwinski, 1 Vet.App. 12, 14 (1990). However, as a matter of policy, the Court

has followed the case or controversy requirements that Article III courts are bound to follow, and has

refused to decide hypothetical cases. See Mokal, 1 Vet.App. at 15. Thus, the Court will dismiss any

case in which the controversy surrounding the appeal has become moot, meaning "there is no longer

any actual controversy." BLACK'S LAW DICTIONARY 1025 (7th ed. 1999); see Aronson v. Brown,

7 Vet.App. 153, 155-56 (1994); Mokal, 1 Vet.App. at 15. Another outcome of this policy is the

requirement that parties appearing before the Court have standing, meaning they must "'personally

ha[ve] suffered some actual or threatened injury as a result of the putative illegal conduct.'"

Waterhouse v. Principi, 3 Vet.App. 473, 475 (1992) (quoting Valley Forge Christian Coll. v. Ams.

United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1984)).

The Court confronted both of these doctrines in the face of the death of veteran-appellants

in Landicho, supra. There, the Court held that the appellants were improperly substituted to carry

on the appeals of the deceased veterans in this Court and, therefore, that both appeals must be

dismissed. 7 Vet.App. at 54. The Court held that a putative accrued-benefits claimant could not

continue a deceased veteran's appeal for disability compensation benefits under chapter 11 of title
12

38, U.S. Code, before the Court because "absent a [Board] decision that a survivor is qualified as an

accrued-benefits claimant under section 5121, any decision the Court would render on the deceased

veterans' . . . claims could well be purely hypothetical." Id. at 49. The Court reasoned that there was

no longer a case or controversy before the Court because, as to the deceased veterans, their disability

compensation claims under chapter 11 died with them, and as to the appellants, who were putative

accrued-benefits claimants, any claims they may have had were not before the Court. Id.

Turning to standing, the Court found that putative accrued-benefits claimants were not

adversely affected by a prior adverseBoard decision that had been appealed to the Court because the

filing of a Notice of Appeal to the Court rendered the underlying Board decision nonfinal and the

subsequent death of the appellant rendered the Board decision a nullity. Id. at 53. Because a

nonfinal Board decision becomes a nullity upon the death of the appellant, the Court determined that

the proper action was to vacate the underlying Board decision to ensure it has no adverse effect on

the adjudication of any subsequent accrued-benefits claim, and dismiss the appeal. Id. at 54-55.

Moreover, the Court also noted that the notification of an appellant's death is sufficient declaration

of intent to seek accrued benefits, based on the death of the appellant, to raise an informal claim

under 38 C.F.R. § 3.155(a). Id. at 50.

In Zevalkink, supra, the Federal Circuit upheld this Court's decision refusing to substitute an

accrued-benefits claimant in the place of a deceased appellant. 102 F.3d at 1243-44. The Federal

Circuit concluded that the determination of whether a party is an eligible accrued-benefits claimant

involves factual findings, which this Court is prohibited from making in the first instance. Id. at

1244. Crucial to the Federal Circuit's holding was that no prejudice would result from the Court's

refusal to substitute because the accrued-benefits claim was separate from the veteran's underlying

claim. See id. at 1243. However, the Federal Circuit did not conclude that dismissal was an

automatic remedy. Rather, the Federal Circuit stated that this Court "could perhaps remand the

question of whether [a person] qualifies as an accrued[-]benefits claimant to the RO," but the Federal

Circuit refused to require this Court to grant a limited remand. Id. at 1244. To date, the Court has

never granted such a limited remand for the purpose of determining the eligibility of an accruedbenefits claimant.
13

The Court has extended the holding in Landicho. For example, in Erro, supra, the Court

held that Landicho applied equally to appellants seeking DIC benefits. 8 Vet.App. at 501. In Erro,

the Court refused to allow substitution of a putative child of the veteran in the place of the veteran's

surviving spouse, who was pursuing a DIC claim at the time of her death. Id. In Edmonds v. Brown,

9 Vet.App. 159, 161 (1996) (per curiam order), the Court held that a child of the veteran could not

seek substitution to pursue an accrued-benefits claim derivative of an asserted surviving spouse's

claim for DIC benefits because there was no determination regarding whether the appellant was a

surviving spouse. However, the Court has never considered the applicability of Landicho in cases

where an appellant seeking accrued benefits or a surviving spouse seeking benefits under 38 U.S.C.

§ 5310 dies while an appeal is pending before the Court.

C. Substitution for Purpose of Claiming Mr. Nolan's Benefits

As the Court held in Landicho, supra, Mrs. Nolan's appeal became moot upon her death.

Neither Mrs. Gage nor attorney Haemer disputes that Mrs. Nolan's appeal became moot, but they ask

that the Court decline to extend Landicho to avoid injustice to Mrs. Gage. Specifically, they argue

that the substitution of Mrs. Gage for Mrs. Nolan and the adjudication of Mrs. Nolan's appeal on the

merits would materially advance the adjudication of Mrs. Gage's accrued-benefits claim. However,

for the following reasons, we conclude that the case or controversy requirement adopted by this

Court in Mokal, supra, prohibitssubstitution of Mrs. Gage for Mrs. Nolan to pursue this appeal with

regard to any benefits due to Mr. Nolan at the time of his death. See Landicho, 7 Vet.App. at 54 (en

banc Court amending Rule 43 of the Court's Rules of Practice and Procedure simultaneously with

the issuance of the Landicho decision to allow substitution only "to the extent permitted by law").

1. Section 5310 Claim

We hold that Mrs. Gage does not have standing to substitute herself for Mrs. Nolan to pursue

her appeal regarding any claim to benefits under 38 U.S.C. § 5310(a). Simply stated, Mrs. Gage has

no legal entitlement to benefits under section 5310 in her own right. Section 5310 clearly limits its

scope to surviving spouses. The RO determined that Mrs. Nolan was Mr. Nolan's surviving spouse.

R. at 257. Accordingly, only Mrs. Nolan is entitled to payment of benefits pursuant to section 5310.

That is, the Board's decision regarding the section 5310 claim only personally adversely affected

Mrs. Nolan. See Waterhouse, supra.
14

The circumstances surrounding the section 5310 argument are indistinguishable from those

surrounding a surviving spouse seeking the accrued disability compensation payments of a deceased

veteran. Surviving spouses have no legal entitlement to receive disability compensation benefits in

their own right. See 38 U.S.C. §§ 1110, 1131 (providing for the payment of disability compensation

to veterans); Erro, 8 Vet.App. at 501 (stating that "Landicho held that a veteran's claims for benefits

for a service-connected disability contained in chapter 11 of title 38 of the U.S. Code die with the

veteran; a veteran's survivors may have a claim for benefits under chapter 13 of title 38, but these

claims are different from those of the veteran"). The only means by which Mrs. Gage potentially

may obtain any benefits that Mrs. Nolan was entitled to at the time of her death under section 5310

is through an accrued-benefits claim pursuant to section 5121.

2. Section 5121 Claim

We do not reach the issue of Mrs. Gage's standing to substitute herself in the place of

Mrs. Nolan to pursue a claim under 38 U.S.C. § 5121. Rather, for the following reasons, we hold

that the claim for accrued benefits, based upon any benefits that Mr. Nolan was entitled to at the time

of his death, is moot.

In her principal brief, Mrs. Nolan, through her attorney, clearly and unambiguously stated that

she was seeking benefits pursuant to 38 U.S.C. § 5310(a) and not accrued benefits pursuant to

38 U.S.C. § 5121. Appellant's Br. at 2 ("This appeal is not about the award of accrued benefits paid

to Mrs. Nolan for two years prior to the Veteran's death based on the evidence in the record.").

Generally, issues not raised in the appellant's principal brief are deemed abandoned on appeal. See

Ford v. Gober, 10 Vet.App. 531, 535-36 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995),

aff'd 104 F.3d 1328 (Fed. Cir. 1997). Although attorney Haemer is correct, in stating in his

opposition to the Secretary's motion to dismiss, that Landicho and Erro, both supra, do not reach the

issue of the substitution of one accrued-benefits claimant for another, in this case, there is no

accrued-benefits claim pending before the Court because of Mrs. Nolan's explicit waiver of the issue

in her principal brief. Accordingly, this case is not about the substitution of one accrued-benefits

claimant for another. When Mrs. Nolan explicitly abandoned any accrued-benefits arguments in her

brief, the Board's decision regarding entitlement to additional accrued benefits became final and any

controversy regarding entitlement to additional accrued benefits was mooted by that choice.
15

In her brief, Mrs. Nolan refers to the Court's decision in Bonny, supra. Appellant's Br. at

11-12. However, we observe that there were no "benefits awarded but unpaid" at the time of

Mr. Nolan's death because the decision awarding him retroactive disability compensation benefits

was made after his death. Therefore, there were no "existing ratings or decisions" at the time of his

death awarding him retroactive disability compensation, and Mrs. Nolan was not entitled to "benefits

awarded but unpaid" at the time of Mr. Nolan's death. 38 U.S.C. § 5121(a).

Our holding is limited to the facts presented in this case and cannot be read to prohibit

substitution in cases where an appellant seeking accrued benefits dies while an appeal as to that

claim is pending before this Court. Such a scenario presents the potential for prejudice that is not

present in this case and that was not present in Landicho. Specifically, the requirement that an

accrued-benefits claim be filed within one year of death would bar an appellant's survivors from

filing an accrued-benefits claim based on the veteran's entitlements because it generally takes more

than one year for a claim to reach this Court. See 38 U.S.C. § 5121(c). Because such a scenario is

not present in this case, we explicitly leave open the question of the proper procedure when an

accrued-benefits claimant dies while pursuing that claim and a second putative accrued-benefits

claimant seeks substitution before the Court.

Our decision also should not be read as a determination regarding whether Mrs. Gage is

eligible to receive accrued benefits, or the merits of any accrued-benefits claim that she might pursue

at the RO. See Zevalkink, 102 F.3d at 1244 (stating that a determination of eligibility under section

5121 "necessarily involves fact finding" and that this Court cannot properly make such a

determination in the first instance). We hold only (1) that Mrs. Nolan had abandoned an appeal of

the Board's decision on her claim for accrued benefits under section 5121, (2) that her appeal as to

additional benefits under section 5310 became moot upon her death, and (3) that Mrs. Gage may not

substitute herself in the place of Mrs. Nolan to pursue a claim under section 5121 for benefits due

to Mr. Nolan at the time of his death.

D. Substitution for Purpose of Claiming Mrs. Nolan's Benefits

We next turn to the resolution of the issue of substitution for the purpose of claiming accrued

benefits due to Mrs. Nolan. We hold that when a surviving spouse seeking benefits under 38 U.S.C.

§ 5310 dies while an appeal is pending before the Court, the circumstances are indistinguishable
16

from those present in Landicho, as discussed in Erro, supra. Accordingly, the proper resolution of

the appeal is to vacate the underlying Board decision and dismiss the appeal. There is no prejudice

to Mrs. Gage in requiring that she establish herself before VA as an eligible accrued-benefits

claimant. There is no reason for attorney Haemer to be concerned that applying Erro and Landicho

would result in the vacatur of decisions favorable to Mrs. Nolan. Because the Court is vacating the

Board decision only as to the matter on appeal (entitlement to retroactive benefits under 38 U.S.C.

§ 5310), to the extent the RO and Board decisions were favorable to Mrs. Nolan, those decisions

remain undisturbed. See, e.g., R. at 257-63 (awarding entitlement to accrued benefits based on a

finding that the September 1949 RO decision was clearly and unmistakably erroneous), 297-99

(granting service connection for the cause of Mr. Nolan's death and awarding DIC benefits).

However, the Board's decision as to the section 5310 matter on appeal will have no binding effect

on the adjudication of an accrued-benefits claim. See Landicho, 7 Vet.App. at 52. Because the RO

decisions underlying the Board decision were subsumed in the Board decision on appeal, those

decisions also will have no binding effect on an accrued-benefits claim. See Yoma v. Brown,

8 Vet.App. 298, 299 (1995) (per curiam order).

As stated above, because Mrs. Gage is clearly not Mr. Nolan's surviving spouse, she has no

entitlement in her own right to benefits under 38 U.S.C. § 5310. Accordingly, the only potential

manner by which she can recover any benefits Mrs. Nolan was entitled to at the time of her death

under section 5310 at the time of her death is through a claim for accrued benefits under

section 5121. We, of course, express no view either on the merits of any claim for accrued benefits

due to Mrs. Nolan, or on Mrs. Gage's eligibility to collect any such benefits, including whether

Mrs. Gage qualifies as a "child," as defined in 38 U.S.C. § 101(4), such that she could collect more

than the expenses for Mrs. Nolan's final illness and burial, and whether any potential benefits that

Mrs. Nolan was entitled to under 38 U.S.C. § 5310 may be awarded in a claim for accrued benefits

under 38 U.S.C. § 5121. See Wilkes, Burris, Gillis, and Papalardo, all supra. We observe that an

informal claim for accrued benefits is pending before VA as a result of Mrs. Gage's motion to

substitute herself in place of the appellant, and we leave these questions to VA to decide in the first

instance in the course of the adjudication of Mrs. Gage's accrued-benefits claim. See Landicho,

7 Vet.App. at 50.
17

III. CONCLUSION

On consideration of the foregoing, the Secretary's September 19, 2005, motion to dismiss this

appeal is granted. The Board's May 10, 2004, decision is VACATED as to the matter appealed to

the Court (entitlement to retroactive benefits under 38 U.S.C. § 5310) and this appeal is

DISMISSED. Mrs. Gage's September 21, 2005, motion to substitute is denied. The motion for oral

argument is denied. See Winslow v. Brown, 8 Vet.App. 469, 471 (1996) (denying motion for oral

argument where Court did not believe it would materially assist in disposition of appeal). Attorney

Haemer's April 21, 2006, motion for leave to supplement the Secretary's response is denied as moot,

however a copy of the documents attached to that motion should be associated with Mrs. Gage's

pending claim for accrued benefits.

KASOLD, Judge, concurring in the result: I write separately to highlight the fact that

substitution of an accrued-benefits beneficiary for a deceased appellant may be appropriate when the

beneficiary has a personal stake in the outcome of the litigation. See Redding v. West, 13 Vet.App.

512, 514 (2000) ("[I]n order for an appellant to have standing, that individual must demonstrate that

he or she has been injured and has a 'personal stake in the outcome of the controversy.'" (citation

omitted)); U.S. VET. APP. R. 43. When benefits have been denied as a matter of law, as they were

in this appeal, an accrued-benefits beneficiary has a personal stake in the outcome of that legal issue

and there is no reason to require the beneficiary to undertake a meaningless and time-consuming

journey through the entire claims process below only to have the issue ultimately resolved in a

subsequent appeal to the Court. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court

reviews Board's interpretation of law de novo); Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) (Court's

interpretation of law is binding on the Board); see also Zevalkink v. Brown, 102 F.3d 1236, 1244

(Fed. Cir. 1996) (stating that this Court could issue a limited remand to determine whether a person

qualifies as an accrued-benefits claimant); cf. Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)

("No principle of administrative law or common sense requires us to remand a case in quest of a

perfect opinion unless there is reason to believe that the remand might lead to a different result.")

(citations omitted).
18

Of course, in cases like this, accrued-benefits-beneficiary status is a prerequisite to granting

substitution. In this instance, there exists a factual dispute over the status of Ms. Gage as an accruedbenefits beneficiary, the resolution of which might resolve the entire matter, at least as it pertains to

this case. Accordingly, I concur in the dismissal of the appeal.