Case: 23-1378    Document: 44     Page: 1   Filed: 08/28/2024




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

        THOMAS SMITH, THROUGH THE
    REPRESENTATIVE OF HIS ESTATE, KAREN
                  HICKS,
             Claimant-Appellant

                             v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2023-1378
                  ______________________

      Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-4730, Judge Joseph L. Falvey,
 Jr., Judge Michael P. Allen, Judge William S. Greenberg.
                  ______________________

                 Decided: August 28, 2024
                  ______________________

    JEFFREY N. MARTIN, Hunton Andrews Kurth LLP,
 Washington, DC, argued for claimant-appellant.

     EMMA EATON BOND, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for respondent-appellee. Also repre-
 sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
 PATRICIA M. MCCARTHY; Y. KEN LEE, SAMANTHA ANN
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 2                                      SMITH v. MCDONOUGH




 SYVERSON, Office of General Counsel, United States De-
 partment of Veterans Affairs, Washington, DC.
                 ______________________

     Before PROST, SCHALL, and HUGHES, Circuit Judges.
 HUGHES, Circuit Judge.
     Claimant-Appellant Karen Hicks is the adult daughter
 of Thomas Smith, a veteran who died during the pendency
 of his appeal before the United States Court of Appeals for
 Veterans Claims. Ms. Hicks sought substitution at the Vet-
 erans Court on her own behalf or on behalf of Mr. Smith’s
 estate. The Veterans Court denied the motion to substi-
 tute, holding that Ms. Hicks was not entitled to pursue her
 father’s claim. For the reasons explained below, we affirm.
                               I
      Mr. Smith served on active duty in the United States
 Air Force from October 1957 to July 1978 and also served
 periods in the National Guard. Mr. Smith was service con-
 nected for a low back disability and often used “spa ther-
 apy” for his condition. J.A. 29. In February 2007, Mr. Smith
 submitted documents to the Department of Veterans Af-
 fairs Regional Office (RO) requesting specially adapted
 housing (SAH) benefits to build a home spa. 1 In June 2007,
 before receiving a response from the RO on his request, and
 without obtaining a certificate of eligibility for SAH bene-
 fits, Mr. Smith constructed a “therapeutic spa and out-
 building” at his home. J.A. 25. In June 2008, Mr. Smith’s


     1   As the name suggests, SAH benefits allow veterans
 to modify their housing to accommodate service-connected
 disabilities. See 

(a) (“[T]he Secretary may
 assist a disabled veteran . . . in acquiring a suitable hous-
 ing unit with special fixtures or movable facilities made
 necessary by the nature of the veteran’s disability, and nec-
 essary land therefor.”).
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 SMITH v. MCDONOUGH                                          3



 request was denied by the RO, which was apparently una-
 ware that the outbuilding had already been constructed.
 Mr. Smith did not appeal this decision and it became final.
     Nearly two years later, Mr. Smith filed a new claim,
 this time for reimbursement of the expense of building the
 home spa. In March 2012, the RO denied Mr. Smith’s claim
 for reimbursement, and in July 2015, the Board of Veter-
 ans’ Appeals denied Mr. Smith’s appeal of the issue. The
 Board also denied his motion for reconsideration, finding
 no error in any of the prior decisions denying entitlement
 to SAH benefits.
      In August 2018, Mr. Smith appealed the denial of his
 claim for reimbursement to the United States Court of Ap-
 peals for Veterans Claims (Veterans Court). In June 2019,
 before either party had submitted briefing, Mr. Smith
 passed away. After Mr. Smith’s death, the Veterans Court
 issued an order requiring Mr. Smith’s counsel to show
 cause “why the Court should not vacate the Board’s deci-
 sion and dismiss the appeal,” which, the court explained, is
 the typical remedy when an appellant dies during the pen-
 dency of an appeal unless there has been an appropriate
 substitution by a qualified claimant. J.A. 2; see also J.A. 37
 (collecting cases). On behalf of Ms. Hicks, Mr. Smith’s
 counsel responded to the order asserting that Mr. Smith’s
 adult children should be substituted in his place and al-
 lowed to continue the appeal. After several rounds of brief-
 ing between Mr. Smith’s counsel and the Secretary of
 Veterans Affairs on whether substitution was appropriate,
 the Veterans Court ultimately issued a majority opinion,
 over a dissent from one judge, vacating the Board’s decision
 and dismissing the appeal, concluding that Ms. Hicks had
 failed to meet her burden with respect to each of her argu-
 ments for substitution. See Smith v. McDonough, No. 18-
 4730 (Vet. App. Oct. 17, 2022); J.A. 1–10.
    Ms. Hicks timely appealed. We have jurisdiction under
 

(a).
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 4                                       SMITH v. MCDONOUGH




                               II
     Our jurisdiction to review decisions of the Veterans
 Court is limited to reviewing legal questions, including “the
 validity of any statute or regulation or any interpretation
 thereof.” 

(c). We review legal determina-
 tions de novo. Hanser v. McDonough, 

 (Fed. Cir. 2022). “We may not, however, review (1) ‘a chal-
 lenge to a factual determination’ or (2) ‘a challenge to a law
 or regulation as applied to the facts of a particular case,’
 unless the challenge presents a constitutional issue.” 

 (quoting 

(d)(2)).
                              III
     Ms. Hicks raises three issues on appeal to this court,
 arguing that (1) the Veterans Court erred in denying sub-
 stitution under Breedlove v. Shinseki, 

 (2010), (2) Ms. Hicks should be permitted to pursue
 Mr. Smith’s claim under 

, which gov-
 erns reimbursement for SAH benefits, and (3) the equita-
 ble doctrine of nunc pro tunc should be modified to allow
 substitution in this case. We address each issue in turn.
                               A
     The primary issue before the Veterans Court, as well
 as before us on appeal, is whether Ms. Hicks’s substitution
 into Mr. Smith’s case was proper under either 38 U.S.C.
 § 5121A or the Veterans Court’s own substitution doctrine
 as explained in Breedlove. Because the Veterans Court did
 not err in declining to make factual findings in the first in-
 stance, we affirm.
                               1
     We begin with a brief discussion of Breedlove and re-
 lated statutes. Section 5121A was passed by Congress in
 2008 and permits the filing of a request for substitution if
 a claimant dies while his or her “appeal of a decision” with
 respect to a claim for benefits is pending:
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 SMITH v. MCDONOUGH                                          5



     (a) Substitution.—(1) If a claimant dies while a
     claim for any benefit under a law administered by
     the Secretary, or an appeal of a decision with re-
     spect 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 sub-
     stituted as the claimant for the purposes of pro-
     cessing the claim to completion.
 38 U.S.C. § 5121A. The statute also states that “[t]hose
 who are eligible to make a claim under this section shall be
 determined in accordance with section 5121 of this title.”
 Id. Section 5121 allows qualified persons to recover “peri-
 odic monetary benefits” that were “due and unpaid” at the
 time of a veteran’s death. 

(a).
     Following the passage of § 5121A, the Veterans Court
 considered whether Congress intended for the new statute
 to apply only to appeals before the agency (the Department
 of Veterans Affairs (VA), which includes the Board of Vet-
 erans’ Appeals) or whether the statute also applied to ap-
 peals before the Veterans Court. Breedlove, 

. Ultimately, the Veterans Court held that “the plain
 meaning of ‘an appeal of a decision,’ within the overall
 structure of section 5121A, refers to an appeal that is pend-
 ing at VA only.” 

. The Veterans Court also con-
 cluded that, although § 5121A did not directly apply to
 substitution in appeals before the Veterans Court, “the new
 legislation warrant[ed] a change in the [Veterans] Court’s”
 substitution doctrine. Id. at 15. The Veterans Court further
 elaborated:
     If substitution is sought in this Court, it remains
     within the Court’s discretion to permit substitu-
     tion. The Court must first obtain from the Secre-
     tary a determination as to whether a particular
     movant is an eligible accrued-benefits claimant.
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 6                                        SMITH v. MCDONOUGH




     This is a factual determination that, unless con-
     ceded by the Secretary on appeal, must be made by
     VA in the first instance. Those who are eligible to
     make a claim for accrued benefits are determined
     in accordance with section 5121.
 Id. at 20–21 (emphasis added); see also id. at 13 (“[The Vet-
 erans Court], being a court of review, does not normally
 take evidence in the first instance or adjudicate such fac-
 tual issues de novo. . . . Evidence of eligibility must first be
 presented to VA.”). If the VA makes a determination that
 the person seeking substitution is an accrued-benefits
 claimant, “standing is established, and substitution gener-
 ally will be permitted, subject, as always, to judicial deci-
 sion that it is the appropriate course of action in that
 particular case.” Id. at 21.
       While this court has never addressed Breedlove in de-
 tail, we have acknowledged that § 5121A governs proceed-
 ings at the VA level. See Merritt v. Wilkie, 

,
 1360 n.2 (Fed. Cir. 2020) (noting that “38 U.S.C. § 5121A
 . . . provides for substitution in VA proceedings”). Further,
 we recently held that while Breedlove requires that the VA
 make initial factual findings related to substitution, the
 Veterans Court may evaluate whether substitution is ap-
 propriate in the first instance when the issue presents
 purely legal questions. See Gabrielli v. McDonough, No.
 2022-1505, 

, at *2 & n.3 (Fed. Cir. June
 13, 2024) (nonprecedential).
                                2
      In responding to Ms. Hicks’s arguments regarding sub-
 stitution, the Veterans Court noted that it was a question
 of first impression whether the Breedlove substitution doc-
 trine could apply to claims for nonperiodic benefits—like
 the SAH benefits at issue in this case—or whether Breed-
 love was limited to periodic, accrued-benefits claims. Nev-
 ertheless, the court found that it need not reach this issue
 because, even assuming that Ms. Hicks could be
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 SMITH v. MCDONOUGH                                          7



 substituted to pursue the SAH claim, “Ms. Hicks fails to
 show that she is an eligible accrued-benefits claimant un-
 der section 5121, which is a prerequisite for substitution
 under Breedlove.” J.A. 5. The Veterans Court explained
 that “there is no evidence that, within one year of
 Mr. Smith’s death, Ms. Hicks applied for a VA determina-
 tion of her eligibility as an accrued-benefits claimant,” even
 though the court “provided Ms. Hicks an additional oppor-
 tunity to submit such evidence” during briefing. J.A. 6 (“In-
 deed, there is no allegation that she ever filed or tried to
 file such an application. Nor is there evidence of a determi-
 nation by the Secretary that she is eligible to be substi-
 tuted.”). The court thus concluded that “[b]ecause a
 determination of accrued-benefits eligibility under section
 5121 is required for substitution under Breedlove and sec-
 tion 5121A, Ms. Hicks’s failure to timely obtain this deter-
 mination means that she fails to show that she may be
 substituted here.” J.A. 6 (citing Breedlove, 

).
      On appeal to this court, Ms. Hicks argues that the Vet-
 erans Court erred in denying her motion for substitution
 under Breedlove. In particular, Ms. Hicks argues that the
 Veterans Court should have made a finding on whether she
 was a proper accrued-benefits claimant on its own, without
 first seeking a determination from the Secretary. See Ap-
 pellant’s Br. 11 (arguing that permitting substitution “re-
 mained within the court’s discretion” and that “Ms. Hicks
 had no obligation to return to the VA to determine if she
 could be eligible to pursue her father’s claim on appeal”).
 Ms. Hicks urges us to adopt the reasoning of the Veterans
 Court dissenting opinion, where Judge Greenberg would
 have found that Ms. Hicks was a proper substitute because
 she “bore the expenses of her father’s last sickness,” see 

(a)(6) (permitting accrued benefits to be paid
 to “the person who bore the expense of last sickness and
 burial”), despite the VA’s assertion that Ms. Hicks had not
 sought an accrued benefits eligibility determination from
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 8                                      SMITH v. MCDONOUGH




 the Secretary. Appellant’s Br. 11–12. Ms. Hicks argues
 that “[t]he Veterans Court erred when it ignored these sa-
 lient dispositive facts:”
     (1) Ms. Hicks is the court-appointed representative
     of her father’s estate; (2) she is the only person of
     record who bore some of the expenses of his last
     sickness and burial; (3) no other heirs or claimants
     sought to be substituted in the case; and (4) she
     had been incurring the very expenses for financing
     the therapeutic spa after her father’s death that he
     had incurred during his life. On these facts there
     was no reason for the Veterans Court to have done
     anything other than find the existence of a case and
     controversy, find legal standing, and grant the re-
     quested substitution.
 Reply Br. 15–16.
      The Veterans Court does not have jurisdiction to make
 de novo findings of fact. See Tadlock v. McDonough, 

 (Fed. Cir. 2021) (explaining that “Congress ex-
 pressly limited the Veterans Court’s jurisdiction to exclude
 de novo fact-finding”); 

(c) (“In no event
 shall findings of fact made by the Secretary or the Board of
 Veterans’ Appeals be subject to trial de novo by the [Veter-
 ans] Court.”); Deloach v. Shinseki, 

 (Fed. Cir. 2013) (“As we have recognized, the statute pro-
 hibits the court from making factual findings in the first
 instance.”). Ms. Hicks’ status as an eligible accrued-bene-
 fits claimant is a factually intensive inquiry that the Vet-
 erans Court is not permitted to make in the first instance
 and, as such, her arguments with respect to Breedlove must
 fail. See Zevalkink v. Brown, 

 (Fed. Cir.
 1996) (“Thus, the determination of whether a party quali-
 fies as an accrued[-]benefits claimant necessarily involves
 fact finding.”) (superseded on other grounds by 38 U.S.C.
 § 5121A with respect to denial of substitution claims).
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 SMITH v. MCDONOUGH                                            9



     Ms. Hicks also argues that she should not have been
 required to submit a formal request for accrued benefits el-
 igibility to the VA because “it was sufficient” for Ms. Hicks
 to “provide the VA with timely notice . . . of Mr. Smith’s
 death” by (1) “filing in the court below,” (2) “filing a . . .
 Form 21-22A [Appointment of Individual as Claimant’s
 Representative] with the VA,” and (3) filing “a timely mo-
 tion . . . to substitute herself for Mr. Smith.” Appellant’s Br.
 13. Thus, Ms. Hicks asserts that “[n]othing more could
 have been expected from her” and it was error for the Vet-
 erans Court to deny substitution in light of these efforts.
 Id. To the extent that Ms. Hicks argues that this court
 should review the record and decide the question of her el-
 igibility anew, we do not have jurisdiction to consider these
 arguments. See 

(d)(2).
                                B
     Ms. Hicks also argues that the Veterans Court erred in
 holding that she could not be substituted under 

(c), the regulation governing the award of SAH
 reimbursement benefits in the event of a claimant’s death.
 The regulation states:
     Should an eligible individual die before the Secre-
     tary disburses the full specially adapted housing
     grant, the eligible individual’s estate must submit
     to the Secretary all requests for reimbursement
     within one year of the date the Loan Guaranty Ser-
     vice learns of the eligible individual’s death. Except
     where the Secretary determines that equity and
     good conscience require otherwise, the Secretary
     will not reimburse an eligible individual’s estate for
     a request that has not been received by the Depart-
     ment of Veterans Affairs within this timeframe.
 

(c).
     The Veterans Court rejected Ms. Hicks’s argument
 that § 36.4406(c) authorized her, as a representative of
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 10                                     SMITH v. MCDONOUGH




 Mr. Smith’s estate, to receive reimbursement of SAH ben-
 efits. The Veterans Court emphasized that the regulation
 “specifically requires a request for reimbursement to be
 filed with VA within one year of the eligible recipient’s
 death,” and noted that “[s]imilarly as with the accrued-ben-
 efits theory . . . , there is no evidence that Ms. Hicks sub-
 mitted an application for reimbursement within one year
 of Mr. Smith’s death.” J.A. 8.
     On appeal, Ms. Hicks argues that the one-year require-
 ment should not apply to her case because (1) Mr. Smith
 submitted the original request for reimbursement directly
 to the VA, (2) Mr. Smith carefully documented the costs of
 building the therapeutic spa, asserting that the Veterans
 Court “surely cannot claim that anything more should have
 been done to document those expenses in the year after he
 died,” and (3) the VA had notice that Ms. Hicks was
 Mr. Smith’s estate’s court-appointed representative, which
 Ms. Hicks argues was sufficient to confer notice. Appel-
 lant’s Br. 17.
     We decline to adopt an interpretation of § 36.4406(c)
 that would render the explicit one-year filing deadline in-
 applicable because such an interpretation is contrary to the
 plain language of the regulation. See Frazier v.
 McDonough, 

 (Fed. Cir. 2023) (“When
 construing a regulation, we begin with the regulatory lan-
 guage itself to determine its plain meaning.” (internal quo-
 tations and citation omitted)). We see no legal error in the
 Veterans Court’s plain meaning interpretation. Accord-
 ingly, we affirm.
                              C
     Finally, Ms. Hicks argues that she should be allowed to
 substitute into Mr. Smith’s appeal under the equitable doc-
 trine of nunc pro tunc. The nunc pro tunc doctrine allows a
 survivor to be substituted into a veteran’s case when three
 factors are met: “(1) that the veteran died after the case
 was submitted to [the Veterans Court] for decision; (2) that
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 SMITH v. MCDONOUGH                                         11



 substitution is appropriate because the person seeking sub-
 stitution has standing; and (3) that considerations of jus-
 tice and fairness have been satisfied.” Suguitan v.
 McDonald, 

 (2014); see Padgett v. Ni-
 cholson, 

, 1367–69 (Fed. Cir. 2007).
     The Veterans Court rejected Ms. Hicks’s nunc pro tunc
 argument because Mr. Smith died before the case was sub-
 mitted to the court for a decision, as required by Padgett
 and the Veterans Court’s line of cases that rely on Padgett.
 J.A. 6. On appeal, Ms. Hicks argues that this court should
 deviate from the requirement that nunc pro tunc relief is
 only available “where a veteran dies after his case is sub-
 mitted for decision, but before the opinion issues.” Padgett,
 

; see Appellant’s Br. 17–18 (arguing that it
 is “appropriate for this Court to reconsider its decision in
 Padgett . . . by endorsing a more expansive and more equi-
 table interpretation of” the nunc pro tunc doctrine).
 Padgett is a binding precedential opinion issued by a panel
 of this court and as such, “cannot be overruled or avoided
 unless or until the court sits en banc.” Preminger v. Sec’y of
 Veterans Affs., 

 (Fed. Cir. 2008). Ac-
 cordingly, Ms. Hicks’s argument that we should “endors[e]
 a more expansive and more equitable interpretation” of the
 doctrine must fail. See Appellant’s Br. 18. We affirm the
 Veterans Court with respect to this issue as well.
                              IV
    We have considered the remainder of Ms. Hicks’s argu-
 ments and find them unpersuasive. For the reasons stated
 above, we affirm.
                         AFFIRMED
                            COSTS
 No costs.