United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CLARA SUE PADGETT, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7081 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 02-2259. 

__________________________ 

Decided: June 30, 2011 

__________________________ 

ERIC A. SHUMSKY, Sidley Austin, LLP, of Washington, 

DC, argued for claimant-appellant. With him on the brief 

were TARA MIKKILINENI and ANAND H. DAS. Of counsel on 

the brief were BARTON F. STICHMAN and LOUIS J. GEORGE, 

National Veterans Legal Services Program, of Washington, DC. 

MARTIN F. HOCKEY, JR., Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent-appellee. With him on the brief were TONY 
PADGETT v. DVA 2

WEST, Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, KIRK T. MANHARDT, Assistant Director, and 

MEREDYTH COHEN HAVASY, Trial Attorney. Of counsel 

was SAMEER P. YARAWADEKAR, Attorney. Of counsel on 

the brief were MICHAEL J. TIMINSKI, Deputy Assistant 

General Counsel, and MARTIN J. SENDEK, Attorney, 

United States Department of Veteran Affairs, of Washington, DC. 

__________________________ 

Before GAJARSA, MAYER, and O’MALLEY, Circuit Judges. 

MAYER, Circuit Judge. 

Clara Sue Padgett (“Mrs. Padgett”) appeals from a final order of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying, in part, her 

application for an award of attorney fees and expenses 

under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 

§ 2412. See Padgett v. Shinseki, 23 Vet. App. 306 (2009) 

(“EAJA Decision”). Because we conclude that the Veterans Court erred in refusing to award Mrs. Padgett fees for 

attorney time expended following the death of her husband, Barney O. Padgett (“Padgett”), we reverse and 

remand. 

BACKGROUND

Padgett served on active duty in the United States 

Army from January 1943 until July 1945. He served in 

Europe, Africa, and the Middle East, and was awarded, 

among other commendations, the Bronze Star and the 

Purple Heart. In August 1945, Padgett was awarded 

disability benefits for a left knee injury he incurred while 

in the Army. In March 1993, he filed a claim seeking 

service-connected benefits for a right hip injury, but his 

claim was denied by a Department of Veterans Affairs 

Regional Office (“RO”). In 1995, however, the Board of 
3 PADGETT v. DVA

Veterans’ Appeals (“board”) remanded the case to the RO 

for reconsideration. 

On remand, the RO again denied Padgett’s claim, and 

the board again reversed and remanded. Ultimately, in 

December 1999, the board affirmed the RO’s third denial 

of Padgett’s claim, concluding that his hip disability “was 

not incurred, directly or presumptively, in service” and 

was “not proximately due to or the result of [his] serviceconnected left knee disability.” 

In 2001, the Veterans Court vacated the board’s decision and remanded for reconsideration. See Padgett v. 

Principi, No. 00-659, 2001 U.S. App. Vet. Claims LEXIS 

339 (Mar. 26, 2001). On remand, the board denied 

Padgett’s claim, but a panel of the Veterans Court again 

vacated the board’s decision. See Padgett v. Principi, 18 

Vet. App. 188, 195-96 (2004). Both Padgett and the 

Secretary of Veterans Affairs petitioned the court for en 

banc review, which was granted on September 14, 2004. 

On April 19, 2005, the Veterans Court issued an en banc 

opinion reversing the board’s decision to deny Padgett’s 

claim for service connection. Padgett v. Nicholson, 19 Vet. 

App. 133 (2005) (en banc) (“En Banc Decision”). The court 

determined that the board’s analysis of the issue of secondary service connection—whether Padgett’s hip disability 

was aggravated by his service-connected left knee injury—was “simply not plausible in light of the record 

viewed in its entirety.” Id. at 150 (citations and internal 

quotation marks omitted). In the court’s view, “[t]he only 

plausible resolution of the key factual issue on the record 

in this case is that Mr. Padgett’s right-hip disability was 

aggravated by his service-connected left-knee disability.” 

Id. Having resolved the issue of secondary service connection in Padgett’s favor, the court remanded the case for an 

assignment of a disability rating and a determination of 

an effective date for the award of disability benefits. Id. 
PADGETT v. DVA 4

The court also vacated and remanded on the question of 

direct service connection, concluding that the board had 

erred in rejecting the opinions of two physicians who 

submitted statements indicating that Padgett had injured 

his right hip while on active duty. Id. at 151-52. 

 Shortly after the En Banc Decision issued, Padgett’s 

attorney informed the Veterans Court that Padgett had 

died on November 3, 2004. Soon thereafter, the Secretary 

moved to recall the En Banc Decision and to dismiss 

Padgett’s appeal as moot. Mrs. Padgett opposed the 

Secretary’s motion and requested that she be substituted 

for her husband on appeal in order to preserve the court’s 

judgment granting her husband service connection. On 

September 7, 2005, the Veterans Court (1) withdrew its 

En Banc Decision; (2) dismissed Padgett’s appeal as moot; 

(3) vacated the underlying board decision; and (4) denied 

Mrs. Padgett’s motion to be substituted. Padgett v. 

Nicholson, 19 Vet. App. 334, 336 (2005) (“Withdrawal 

Order”). 

On appeal, this court reversed. Relying upon a long 

line of Supreme Court authority, we concluded that 

Padgett’s death did not moot the case because it had been 

fully briefed and submitted to the Veterans Court prior to 

his death. Padgett v. Nicholson, 473 F.3d 1364, 1367 

(Fed. Cir. 2007) (“Padgett I”). We explained that “[w]here 

a party dies after his case is submitted, but before the 

opinion issues, and the case would otherwise be rendered 

moot, the Supreme Court has consistently entered judgment nunc pro tunc to the date of the party’s death.” Id. 

We concluded, moreover, that Mrs. Padgett should be 

allowed to substitute on her husband’s appeal given “[t]he 

continuing relevance and preclusive effect” that the 

adjudication of his claim had on her own claim for accrued 
5 PADGETT v. DVA

benefits.1 Id. at 1370. We explained that if the En Banc 

Decision were withdrawn, the board’s prior decision 

denying Padgett benefits would be reinstated and “would 

adversely affect [Mrs. Padgett’s own claim for accrued 

benefits] in the same way it adversely impacted Padgett’s 

claim at the time he filed his notice of appeal.” Padgett I, 

473 F.3d at 1370. 

In June 2006, while the appeal to this court was pending, Mrs. Padgett filed her own claim for accrued benefits. 

The RO denied her claim, however, pointing to the board’s 

previous decision denying Padgett’s claim for service 

connection. After Padgett I required the Veterans Court 

to reinstate its En Banc Decision, however, the Secretary 

instructed the RO to conduct a “special review” of Mrs. 

Padgett’s accrued benefits claim. The RO thereafter 

reversed its earlier decision and awarded Mrs. Padgett 

accrued benefits. Relying upon the En Banc Decision, the 

RO concluded that (1) it had erred in rejecting the opinions of two physicians who had submitted statements 

indicating that Padgett had injured his hip while on 

active duty; and (2) its denial of Padgett’s claim for direct 

service connection had been “clearly and unmistakably 

erroneous.” 

On July 8, 2008, on remand from this court, the Veterans Court reinstated its En Banc Decision awarding 

Padgett service connection nunc pro tunc to the day before 

he died. Padgett v. Peake, 22 Vet. App. 159, 167-68 (2008) 

(“Nunc Pro Tunc Decision”). The court, however, denied 

Mrs. Padgett’s motion to substitute on her husband’s 

claim. Id. at 163-64. In the court’s view, Mrs. Padgett 

 1 Accrued benefits” are benefits that are “due and 

unpaid” to the veteran at the time of his death. 38 U.S.C. 

§ 5121(a). A surviving spouse, or other appropriate 

beneficiary, can receive these accrued benefits after a 

veteran’s death. Id.
PADGETT v. DVA 6

was deprived of standing to be substituted on her husband’s claim when the RO granted her application for 

accrued benefits. Id. at 164. 

On October 27, 2008, Mrs. Padgett filed an application seeking $87,802.17 in attorney fees and expenses 

under the EAJA as well as a motion to substitute for 

purposes of pursuing the EAJA application on her husband’s behalf. The Secretary opposed the motion to 

substitute, noting that Mrs. Padgett had been denied 

substitution on her husband’s claim following the Secretary’s decision to award her accrued benefits. On February 3, 2009, the Veterans Court issued an order asking 

Mrs. Padgett to “provide information as to whether she 

[was] the executor or personal representative of 

[Padgett’s] estate.” In response, Mrs. Padgett informed 

the court that she was named the personal representative 

of her husband’s estate pursuant to his last will and 

testament. The Veterans Court subsequently granted 

Mrs. Padgett’s motion to be substituted for purposes of 

the EAJA proceedings, explaining that “[a]lthough Mrs. 

Padgett was denied substitution in the underlying merits 

case, her status as the personal representative of her 

deceased husband’s estate gives her standing to be substituted in an EAJA action.” 

On December 16, 2009, the Veterans Court granted, 

in part, Mrs. Padgett’s application for attorney fees. 

EAJA Decision, 23 Vet. App. at 312-13. The court determined that Mrs. Padgett had the right, as the representative of Padgett’s estate, to recover fees for attorney hours 

expended on his claim prior to his death. It concluded, 

however, that she had no right to recover fees for attorney 

work performed after her husband’s death, explaining 

that she was deprived of “standing” to substitute on 

Padgett’s claim when the DVA decided to award her 

accrued benefits. Id. at 313. 
7 PADGETT v. DVA

Mrs. Padgett filed a motion seeking full court review 

of the Veterans Court’s order, but this motion was denied 

on March 4, 2010. She then appealed to this court. 

DISCUSSION

We have jurisdiction over appeals from the Veterans 

Court under 38 U.S.C. § 7292. Interpretation of the EAJA 

is a question of law, subject to de novo review. Kelly v. 

Nicholson, 463 F.3d 1349, 1352 (Fed. Cir. 2006). 

Although the present case has a long and tortuous 

history, the issue presented on appeal is a straightforward one: Can the surviving spouse of a deceased veteran, 

who serves as the personal representative of his estate, 

obtain fees under the EAJA2 for attorney hours expended 

following the veteran’s death? We conclude that she can. 

Pursuant to the EAJA, a “prevailing party” in litigation against the government is entitled to recover reasonable attorney fees and expenses unless the court finds the 

position of the United States in the underlying litigation 

was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). 

The Veterans Court determined that Padgett was a 

 2 In relevant part, the EAJA provides: 

Except as otherwise specifically provided by statute, a court shall award to a prevailing party 

other than the United States fees and other expenses, in addition to any costs awarded pursuant 

to subsection (a), incurred by that party in any 

civil action (other than cases sounding in tort), including proceedings for judicial review of agency 

action, brought by or against the United States in 

any court having jurisdiction of that action, unless 

the court finds that the position of the United 

States was substantially justified or that special 

circumstances make an award unjust. 

28 U.S.C. § 2412(d)(1)(A). 
PADGETT v. DVA 8

“prevailing party” for purposes of the EAJA and that the 

government’s position in the underlying litigation was not 

“substantially justified.” EAJA Decision, 23 Vet. App. at 

309-12. It further determined that Mrs. Padgett, who had 

been appointed the personal representative of her husband’s estate, had standing to seek an award of EAJA fees 

on the estate’s behalf. Id. at 310, 313. The court therefore granted Mrs. Padgett an EAJA award of $27,866.67 

for 201 attorney hours expended on her husband’s claim 

prior to his death. Id. at 313. The court concluded, 

however, that Mrs. Padgett could not recover approximately $60,000 in attorney fees incurred following her 

husband’s death, explaining that “because Mrs. Padgett 

has standing in this matter only as [the] representative of 

her husband’s estate . . . she is not entitled to an EAJA 

award for the work and expenses expended after her 

husband’s death . . . .” Id.

Mrs. Padgett contends that the Veterans Court erred 

in denying attorney fees for work performed following her 

husband’s death. She argues that “[t]he Veterans Court 

erroneously presupposed that no work done after a veteran has died can be in support of the veteran’s own claim 

for benefits.” She asserts, moreover, that the decision to 

deny attorney fees for time expended following her husband’s death “is irreconcilable with [the] EAJA’s remedial 

purpose” and “imposes a limitation on [the] EAJA that is 

neither derived from the statute nor supported by [Federal Circuit precedent].” 

We agree. The government points to nothing in the 

text of the EAJA or its legislative history to support a per 

se rule denying recovery for attorney fees incurred after a 

claimant’s death. We reject the government’s argument 

that “any litigation following [a] veteran’s death inherently cannot be litigation in pursuit of the veteran’s own 

claim for benefits.” Where, as here, litigation following a 
9 PADGETT v. DVA

veteran’s death is required to obtain a nunc pro tunc

judgment on his claim for service connection, attorney 

hours devoted to such litigation are directly related to the 

veteran’s claim. 

Following a veteran’s death, certain specified survivors have the right to recover the benefits that were due 

and payable to him at the time of his death. See 38 U.S.C. 

§ 5121(a); Phillips v. Shinseki, 581 F.3d 1358, 1363 (Fed. 

Cir. 2009). Although the survivor’s claim is dependent on 

the deceased veteran’s claim, the survivor must file a 

separate application for accrued benefits. See 38 U.S.C. 

§ 5121(c). Thus, while a survivor’s claim for accrued 

benefits is “derivative of the veteran’s claim for service 

connection, it is nevertheless a separate claim based on a 

separate statutory entitlement to benefits.” Hyatt v. 

Shinseki, 566 F.3d 1364, 1367 (Fed. Cir. 2009) (citations 

and internal quotation marks omitted). 

Simply because a veteran’s surviving spouse must 

pursue her own separate claim for accrued benefits following the veteran’s death, however, does not mean that any 

litigation following a veteran’s death relates only to the 

survivor’s, rather than the veteran’s, claim. Where a 

veteran’s entitlement to a nunc pro tunc judgment is in 

dispute, litigation on that judgment will necessarily 

continue after his death. Indeed, the history of the present case illustrates that litigation on a veteran’s claim 

for service connection can continue long after he has died. 

In March 1993, Padgett filed a claim seeking serviceconnected benefits for a right hip disability. The DVA 

repeatedly denied his claim, but in April 2005 an en banc 

panel of the Veterans Court awarded him service connection after concluding that the board’s previous denials of 

his claim were “simply not plausible in light of the record 

viewed in its entirety.” En Banc Decision, 19 Vet. App. at 

150 (citations and internal quotation marks omitted). 
PADGETT v. DVA 10

Soon after its judgment issued, however, the Veterans 

Court learned that Padgett had died during the pendency 

of his appeal. The court thereafter withdrew its En Banc 

Decision, dismissed Padgett’s appeal as moot, and denied 

Mrs. Padgett’s motion to be substituted on her husband’s 

claim. 

On appeal, this court reversed, concluding that the 

Veterans Court should not have withdrawn its decision, 

but should instead have reissued that decision nunc pro

tunc to the date of Padgett’s death.3 Padgett I, 473 F.3d 

at 1367-68. We explained that “[w]here a party dies after 

his case is submitted, but before the opinion issues, and 

the case would otherwise be rendered moot, the Supreme 

Court has consistently entered judgment nunc pro tunc to 

the date of the party’s death.” Id. at 1367. We further 

concluded that the Veterans Court erred in denying Mrs. 

Padgett’s motion to be substituted on her husband’s 

 3 A judgment that is issued nunc pro tunc (which 

literally means “now for then”) assigns an earlier effective 

date to a judgment than its actual date of issuance. Such 

a judgment is generally used to correct the timing of a 

judgment where its issuance has been delayed through no 

fault on the part of the litigants: 

[T]he rule established by the general concurrence 

of the American and English courts is, that where 

the delay in rendering a judgment or a decree 

arises from the act of the court, that is, where the 

delay has been caused either for its convenience, 

or by the multiplicity or press of business, either 

the intricacy of the questions involved, or of any 

other cause not attributable to the laches of the 

parties, the judgment or the decree may be entered retrospectively, as of a time when it should 

or might have been entered up. 

Mitchell v. Overman, 103 U.S. 62, 64-65 (1881); see

Padgett I, 473 F.3d at 1367. 
11 PADGETT v. DVA

appeal.4 Id. at 1371-72. Because of “[t]he continuing 

relevance and preclusive effect that the issues in 

Padgett’s appeal” had for her accrued benefits claim, Mrs. 

Padgett had standing to be substituted on her husband’s 

appeal. Id. at 1370. 

Although Mrs. Padgett had standing to be substituted 

on Padgett’s appeal, there was no question that it was his 

claim, not hers, that was being litigated.5 Our holding 

 4 In 2008, after our decision in Padgett I, Congress 

enacted legislation that expressly allows an accrued 

benefits claimant to be substituted on a deceased veteran’s claim: 

If a claimant dies while a claim for any benefit 

under a law administered by the Secretary, or an 

appeal of a decision with respect to such a claim, 

is pending, a living person who would be eligible 

to receive accrued benefits due to the claimant 

under section 5121(a) of this title may, not later 

than one year after the date of the death of such 

claimant, file a request to be substituted as the 

claimant for the purposes of processing the claim 

to completion. 

38 U.S.C. § 5121A(a)(1). 

This provision only applies in cases in which the veteran died after October 10, 2008. See Veterans’ Benefits 

Improvement Act of 2008, Pub. L. No. 110-389, 122 Stat. 

4145, 4151. 

5 It has sometimes been asserted that “a veteran’s 

claim dies when he does,” but this proposition “is too 

broadly stated.” Withdrawal Order, 19 Vet. App. at 338 

(Kasold, J., dissenting). A veteran’s claim “dies” when he 

does in that the veteran’s entitlement to disability benefits ends when he dies. See Haines v. West, 154 F.3d 

1298, 1300 (Fed. Cir. 1998) (“By statute, a veteran’s 

entitlement to payment of disability compensation terminates on the last day of the month preceding the veteran’s 

death.”). Furthermore, the veteran’s estate has no right 
PADGETT v. DVA 12

was that “entering Padgett’s judgment” on a nunc pro tunc

basis was consistent with the statutes governing the 

jurisdiction of the Veterans Court. Id. at 1368 (emphasis 

added). Indeed, litigation on Padgett’s claim was not fully 

resolved until July 8, 2008—nearly four years after he 

died—when the Veterans Court entered a nunc pro tunc

judgment on that claim. See Nunc Pro Tunc Decision, 22 

Vet. App. at 168. 

By necessity, a veteran’s successor in interest must 

litigate to obtain a nunc pro tunc judgment on his behalf. 

See Phillips, 581 F.3d at 1365 (allowing the daughter of a 

deceased veteran to be substituted on her father’s claim 

 

to obtain disability payments that were due and unpaid to 

the veteran at the time of his death. See Richard v. West, 

161 F.3d 719, 722-23 (Fed. Cir. 1998). Rather, as noted 

previously, it is the accrued benefits claimant—typically 

the surviving spouse—who has the right to any benefits 

that were due when the veteran died. See 38 U.S.C. 

§ 5121(a). 

Under certain circumstances, however, a veteran’s 

claim can survive his death. Where, as here, a veteran 

dies after his case has been submitted to the Veterans 

Court, but before the court has entered judgment on his 

claim, a qualified accrued benefits claimant can substitute 

on appeal in order to obtain a judgment on the veteran’s 

claim. Phillips, 581 F.3d at 1363-66; Padgett I, 473 F.3d 

at 1367-70. In such situations, the veteran’s claim survives his death for purposes of allowing litigation on it to 

be fully resolved, thereby permitting the accrued benefits 

claimant to rely on any judgment entered on the veteran’s 

claim in pursuing his or her own application for accrued 

benefits. See Padgett I, 473 F.3d at 1369 (emphasizing 

that an accrued benefits claim “derives from the veteran’s 

service-connection claim” and “incorporates any prior 

adjudications of the service-connection issue on claims 

brought by the veteran” (citations and internal quotation 

marks omitted)). 
13 PADGETT v. DVA

for disability compensation). This does not mean, however, that the veteran’s own claim is not being litigated 

following his death or that a veteran’s estate should be 

precluded from recovering fees for litigation undertaken 

on his behalf. Here, litigation following Padgett’s death 

was a prerequisite to obtaining a nunc pro tunc judgment 

on his claim and we see no reason that his estate should 

be precluded from recovering reasonable attorney fees for 

hours expended during this litigation. Courts routinely 

allow estates to recover fees and expenses under feeshifting statutes such as the EAJA.6 See Phillips, 581 

F.3d at 1368 (explaining that “there is no need for the 

representative of an estate to have a separate [accrued 

benefits] claim in order to prosecute the deceased claimant’s EAJA claim”); see also Smalbein ex rel Smalbein v. 

City of Daytona Beach, 353 F.3d 901, 903-08 (11th Cir. 

2003); Geissal ex. rel. Geissal v. Moore Med. Corp., 338 

F.3d 926, 935-36 (8th Cir. 2003); Estate of Woll v. United 

States, 44 F.3d 464, 467-68 (7th Cir. 1994). 

Most of the attorney fees that were denied by the Veterans Court relate to attorney hours devoted to the first 

appeal to this court. The government’s arguments as to 

why such fees are not recoverable are internally inconsistent. The government acknowledges that Padgett was a 

“prevailing party” for purposes of obtaining an EAJA 

award. Padgett prevailed, however, only as a result of 

litigation occurring after his death. As discussed previously, although the En Banc Decision awarded Padgett 

service connection, the Veterans Court vacated that 

 6 In Phillips, we allowed the daughter of a deceased 

veteran, who was the representative of his estate but who 

was not herself an accrued benefits claimant, to pursue an 

EAJA application on behalf of her father’s estate. 581 

F.3d at 1368. 
PADGETT v. DVA 14

decision when it learned of his death. It was only because 

of the successful appeal to this court, see Padgett I, 473 

F.3d at 1367-70, that the En Banc Decision was reinstated and Padgett became a “prevailing party.” Thus, on 

the one hand, the government concedes that Padgett was 

a prevailing party as a result of the Padgett I appeal. On 

the other hand, it argues that no fees can be recovered for 

attorney time expended on that appeal because “any 

litigation following the veteran’s death inherently cannot 

be litigation in pursuit of the veteran’s own claim for 

benefits.” The government provides no satisfactory explanation, however, for how an appeal that is necessary to 

establish a veteran’s status as a prevailing party could 

possibly be litigation that is “inherently” unrelated to that 

veteran’s claim. 

We likewise reject the government’s argument that 

this court has no jurisdiction over this appeal because it 

involves only a factual determination regarding the 

“reasonableness” of Mrs. Padgett’s fee request. There is 

no dispute that this court lacks authority to review challenges to factual determinations made in veterans’ cases. 

See 38 U.S.C. § 7292(d)(2). Whether the EAJA permits 

the award of attorney fees for time expended pursuing a 

nunc pro tunc judgment following a veteran’s death, 

however, is a question of statutory interpretation that 

falls squarely within the scope of our appellate jurisdiction. Id. § 7292(d)(1). 

CONCLUSION

Accordingly, the order of the United States Court of 

Appeals for Veterans Claims is reversed and the case is 

remanded for further proceedings consistent with this 

opinion. 
15 PADGETT v. DVA

COSTS

 Appellant shall have her costs. 

REVERSED AND REMANDED