Case: 19-1095    Document: 58     Page: 1   Filed: 07/17/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

     CHRISTINA MERRITT, SUBSTITUTED FOR
             DOUGLAS A. MERRITT,
               Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2019-1095
                  ______________________

      Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-898, Senior Judge Robert N. Da-
 vis.
                  ______________________

                  Decided: July 17, 2020
                  ______________________

    KENNETH M. CARPENTER, Law Offices of Carpenter
 Chartered, Topeka, KS, argued for claimant-appellant.

     SEAN LYNDEN KING, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for respondent-appellee. Also repre-
 sented by ETHAN P. DAVIS, MARTIN F. HOCKEY, JR., ROBERT
 EDWARD KIRSCHMAN, JR., REBECCA SARAH KRUSER;
 CHRISTINA LYNN GREGG, BRIAN D. GRIFFIN, Office of
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 2                                           MERRITT   v. WILKIE



 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
                 ______________________

  Before PROST, Chief Judge, CLEVENGER and DYK, Circuit
                         Judges.
 DYK, Circuit Judge.
     Douglas A. Merritt, a U.S. Navy veteran and the origi-
 nal claimant in this case, filed an application for service-
 connected benefits. The Board of Veterans’ Appeals
 (“Board”) held that Mr. Merritt had not established entitle-
 ment. The United States Court of Appeals for Veterans
 Claims (“Veterans Court”) affirmed, and Mr. Merritt ap-
 pealed to this court. Mr. Merritt died while his appeal was
 pending. Christina Merritt filed a motion for substitution
 arguing that she was the surviving spouse, which we
 granted. We now dismiss the appeal as moot because Mrs.
 Merritt has not preserved her claim by filing a formal claim
 with the Department of Veteran Affairs (“VA”) within one
 year of Mr. Merritt’s death as required by the applicable
 statutes and regulations.
                        BACKGROUND
     Mr. Merritt served in the U.S. Navy from May 1972 to
 September 1973. During the time he was in service, in
 March of 1973, Mr. Merritt sustained a concussion in an
 automobile accident. In October 2006, a VA psychologist
 who had been treating Mr. Merritt for approximately a
 year prepared a note (“the VA psychology note”) stating
 that Mr. Merritt had shown “[s]ymptoms of bipolar disor-
 der[, which] first began when Mr. Merritt . . . was on active
 duty in the Navy,” and that Mr. Merritt’s “work perfor-
 mance began to suffer” after the in-service accident.
 J.A. 19.
    In March 2010, Mr. Merritt filed for disability benefits
 for “[b]ipolar disorder, anxiety[,] and personality
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 MERRITT   v. WILKIE                                         3



 disorders.” J.A. 24. The Board determined that Mr. Mer-
 ritt’s psychiatric disorders were not service connected. The
 Board’s decision acknowledged the existence of the VA psy-
 chology note but did not discuss whether the note estab-
 lished a medical nexus between Mr. Merritt’s bipolar
 disorder and in-service accident. Instead, the Board’s de-
 termination relied solely on an independent medical expert
 opinion, which stated that Mr. Merritt’s “behavior during
 his period in the service was not connected to a bipolar dis-
 order or any other psychiatric disorder other than a per-
 sonality disorder,” and that it was “at least as likely as not
 that any current psychiatric disorder was neither caused
 [n]or aggravated by the Veteran’s period of military ser-
 vice.” J.A. 68.
     Mr. Merritt appealed to the Veterans Court, which va-
 cated and remanded the Board’s decision for failing to
 “meaningfully discuss the [VA psychology note] or explain
 whether it [wa]s an adequate nexus opinion.” J.A. 86. On
 remand, the Board again denied Mr. Merritt’s claim, stat-
 ing that the VA psychology note was entitled “little, if any,
 probative weight,” apparently because there was “no evi-
 dence that, at the time of the rendering of that opinion, the
 [VA psychologist] had access to either [Mr. Merritt]’s
 claims file or his service treatment records,” J.A. 101, and
 there was a discrepancy between the VA psychology note
 and Mr. Merritt’s treatment records “as to the length of
 time [that] Mr. Merritt was unconscious from the concus-
 sion sustained in the automobile accident,” J.A. 4. Mr.
 Merritt appealed to the Veterans Court for a second time,
 arguing that the Board had failed to follow the Veterans
 Court’s remand order.
     On July 26, 2018, the Veterans Court affirmed the
 Board’s decision. The Veterans Court found that the Board
 had not complied with the remand order, because even if
 the VA psychologist lacked access to the service records
 and even if the VA psychology note had “a factual inaccu-
 racy,” the Board still had an obligation to “explain why it
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 4                                                MERRITT   v. WILKIE



 apparently regarded that inaccuracy as critical to the
 nexus analysis” before finding that the note was entitled to
 no probative weight. J.A. 4–5. The Veterans Court found,
 however, that the Board’s error was harmless, because
 even if the Board had considered the VA psychology note,
 it “described no symptoms that . . . supported . . . a retro-
 spective diagnosis” of bipolar disorder, and “there [was] no
 possibility that the Board could have awarded service con-
 nection based on [the VA psychology note].” 1 J.A. 5–6.
      On October 17, 2018, Mr. Merritt filed a notice of ap-
 peal with this court. Mr. Merritt died on November 10,
 2018. On December 19, 2018, Mrs. Merritt filed a motion
 to substitute herself as the surviving spouse. Mrs. Mer-
 ritt’s motion included Mr. Merritt’s death certificate. This
 court granted Mrs. Merritt’s motion under Federal Rule of
 Appellate Procedure 43(a)(1).
      On appeal, Mrs. Merritt argues that (1) the Veterans
 Court had failed to enforce its own remand order and
 (2) the Veterans Court lacked authority to consider the
 question of harmless error because 38 U.S.C. § 7261(b)(2),
 which requires the Veterans Court to “take due account of
 the rule of prejudicial error,” “has no applicability in the
 context of an appeal in which the issue is the enforcement
 of the appellant’s right to compliance with the [Veterans]
 Court’s prior remand order.” Appellant’s Reply Br. 14.
                            DISCUSSION
      “[E]very federal appellate court has a special obligation
 to ‘satisfy itself . . . of its own jurisdiction[] . . . ’ even though


     1   The Veterans Court also stated that a medical ex-
 amination report would not be “entitled to any weight in a
 service-connection or rating context if it contains only data
 and conclusions.” J.A. 5 (quoting Nieves-Rodriguez v.
 Peake, 22 Vet. App. 295, 304 (Ct. Vet. App. 2008)). This
 statement appears to be questionable.
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 MERRITT   v. WILKIE                                          5



 the parties are prepared to concede it.” Bender v. Wil-
 liamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting
 Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). “[W]here[]
 . . . the underlying controversy is . . . moot, the preferred
 course is to decide mootness, before reaching difficult ques-
 tions more closely tied to the merits of the underlying con-
 troversy, such as subject matter jurisdiction.” Kaw Nation
 v. Norton, 405 F.3d 1317, 1323 (Fed. Cir. 2005).
                               I
     We begin with a brief description of the statutory and
 regulatory background:
     When a veteran dies, his right to continuing disa-
     bility compensation ends. See 38 U.S.C.
     § 5112(b)(1) (providing that a veteran’s right to dis-
     ability compensation terminates on the last day of
     the month before the veteran’s death). Pursuant to
     38 U.S.C. § 5121, however, certain individuals—
     typically the surviving spouse—have the right to
     obtain the accrued benefits that were due and pay-
     able to the veteran at the time of his death.
 Reeves v. Shinseki, 682 F.3d 988, 993 n.3 (Fed. Cir. 2012)
 (emphasis added).
      Mrs. Merritt argues that she is the surviving spouse
 and that she is entitled to pursue a claim for Mr. Merritt’s
 “accrued benefits.” The government argues that Mrs. Mer-
 ritt has not established that she is the veteran’s surviving
 spouse. It points to an apparent inconsistency in the death
 certificate that Mrs. Merritt submitted in her motion for
 substitution, which identified Mr. Merritt’s spouse as
 “Christina Prewitt.” It argues that Mrs. Merritt “has not
 furnished any independent evidence” resolving this appar-
 ent inconsistency on the death certificate. Gov’t’s Br. 19.
 We need not address these arguments, because Mrs. Mer-
 ritt has not preserved her claim for accrued benefits under
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 6                                             MERRITT   v. WILKIE



 the statute and regulation by filing a claim for accrued ben-
 efits within the statutory time limit.
                               II
      Even if we assume that Mrs. Merritt was the surviving
 spouse and has therefore properly substituted herself un-
 der Federal Rule of Appellate Procedure 43(a)(1), that sub-
 stitution does not itself grant entitlement. Substitution is
 not the same as entitlement. Procedural rules such as Rule
 43(a)(1) “do[] not resolve the question [of] what law of sur-
 vival of actions should be applied in [a] case.” Robertson v.
 Wegmann, 436 U.S. 584, 587 n.3 (1978) (second alteration
 in original) (quoting Shaw v. Garrison, 545 F.2d 980, 982
 (5th Cir. 1977)). Instead, they “simply describe[] the man-
 ner in which parties are to be substituted in federal court
 once it is determined that the applicable substantive law
 allows the action to survive a party’s death.” Id. (quoting
 Shaw, 545 F.2d at 982); see also Reeves, 682 F.3d at 992
 (“[T]he question of substitution is separate from that of
 standing.” (quoting Richard v. West, 161 F.3d 719, 722
 (Fed. Cir. 1998))). Mrs. Merritt must show that she is en-
 titled to Mr. Merritt’s claim under the applicable statutes
 and regulations. 2
                               III
      In general, “a specific claim in the form prescribed by
 the Secretary [of the VA] . . . must be filed in order for ben-
 efits to be paid or furnished to any individual under the
 laws administered by the Secretary.”               38 U.S.C.


     2   We note that 38 U.S.C. § 5121A, which provides for
 substitution in VA proceedings, is consistent with this re-
 quirement. Section 5121A provides that, even after substi-
 tution is granted, entitlement is “determined in accordance
 with [38 U.S.C. §] 5121 [(providing for the eligibility of a
 surviving spouse for accrued benefits)].”        38 U.S.C.
 § 5121A(b).
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 MERRITT   v. WILKIE                                           7



 § 5101(a)(1)(A); see also 38 C.F.R. §§ 3.155, 3.160. Further-
 more, an application for accrued benefits “must be filed
 within one year after the date of death [of the veteran ben-
 eficiary].” Id. § 5121(c). These requirements apply to all
 pending claims by the deceased veteran.
      Mrs. Merritt does not meaningfully dispute that the
 claim filing requirements apply to pending actions. 3 But
 she argues that, under Reeves, her motion for substitution
 constitutes the filing of a claim under the statute. Reeves
 involved a similar situation where a veteran-claimant died
 shortly after filing a notice of appeal with this court.
 Reeves, 682 F.3d at 992. The veteran’s surviving spouse
 filed a motion to be substituted for her husband’s appeal,
 and the government argued that the surviving spouse
 lacked standing to be substituted because she had not yet
 filed an accrued benefits claim. Id. at 992–93. We held
 that “[e]ven assuming arguendo that standing can be es-
 tablished only if a surviving spouse files an accrued-bene-
 fits claim, [the surviving spouse’s] motion to be substituted
 for her husband qualifie[d] as an informal claim for accrued
 benefits.” Id. at 993.
     Reeves is of no help to Mrs. Merritt because it was de-
 cided under an earlier version of the applicable regulation.
 See Reeves, 682 F.3d at 993 (citing 38 C.F.R. § 3.155
 (2011)). That regulation created an “informal claim”
 framework, where “any communication can qualify for an
 informal claim if it: (1) is in writing; (2) indicates an intent
 to apply for veterans’ benefits; and (3) identifies the partic-
 ular benefits sought.” Id. It was under this informal claim


     3   At oral argument, counsel for Mrs. Merritt con-
 tended that Mrs. Merritt was not required to file a claim
 for accrued benefits because there was “nothing pending
 before the VA.” Oral Arg. at 00:46–50, available at
 http://www.cafc.uscourts.gov/node/26086. We see no basis
 for such a distinction.
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 8                                            MERRITT   v. WILKIE



 framework that we held that a motion for substitution
 “qualifie[d] as an informal claim for accrued benefits.” Id.
 And even under the earlier regulation, we noted that a sur-
 vivor might “forfeit all right to relief” for failing to file a
 formal claim with the VA “within one year of [the] veteran’s
 death” under 38 U.S.C. § 5121(c). Reeves, 682 F.3d at
 995 n.5.
      In 2015, the VA revised 38 C.F.R. §§ 3.155 and 3.160 to
 “require that claims be submitted on a specific form pre-
 scribed by [the] VA, effectively ending the practice of ‘infor-
 mal claims.’” Shea v. Wilkie, 926 F.3d 1362, 1366 n.3 (Fed.
 Cir. 2019). That framework was replaced by the “intent to
 file a claim” framework prescribed in the new regulation.
 Veterans Justice Grp., LLC v. Sec’y of Veterans Affairs, 818
 F.3d 1336, 1342–43 (Fed. Cir. 2016). Now, if a survivor has
 not filed a formal claim, he or she may still preserve the
 claim by submitting an “intent to file a claim” within the
 one-year period after the veteran’s death. See 38 C.F.R.
 § 3.155(b) (effective 2015) (providing that, if a claimant
 complies with the regulation’s other requirements, the “VA
 will consider the complete claim filed as of the date the in-
 tent to file a claim was received”); 38 U.S.C § 5121(c). We
 upheld the validity of these revisions on the ground that
 Congress did not codify the “informal claim” framework.
 Veterans Justice Grp., 818 F.3d at 1346–1350. Thus, a sur-
 vivor can no longer preserve a claim for accrued benefits by
 filing an informal claim within one year of the veteran’s
 death.
      Mrs. Merritt did not file a formal claim with the VA
 within one year of Mr. Merritt’s death, as the parties agree.
 See Oral Arg. at 0:34–45 (when asked if Mrs. Merritt had
 “filed a claim for accrued benefits with the VA,” counsel for
 Mrs. Merritt responded “no”); id. at 20:50–21:13 (counsel
 for the government stating “[Mrs. Merritt] did not file the
 appropriate application” within the “one-year deadline”).
 When this court asked whether, “if we hold that you had to
 file within the one-year period, this case is moot,” counsel
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 MERRITT   v. WILKIE                                           9



 for Mrs. Merritt responded “[t]hat would be true.” Id. at
 31:00–31:11.
       Even assuming Mrs. Merritt’s motion for substitution
 constituted an “intent to file a claim” under § 3.155, 4 she
 still cannot meet the regulatory requirement that she file
 a “complete application form” within one year of submit-
 ting her intent to file a claim. 38 C.F.R. § 3.155(b)(4) (“If
 . . . a complete claim is not filed within 1 year of the receipt
 of an intent to file a claim, [the] VA will not take further
 action unless a new claim or a new intent to file a claim is
 received.”); 38 U.S.C. § 5121(c) (requiring claims for ac-
 crued benefits to be filed “within one year after the date of
 death”). Here, even treating Mrs. Merritt’s motion for sub-
 stitution as an intent to file a claim, she did not file a com-
 plete application within one year of filing her motion for
 substitution.
                               IV
      Finally, there is the question of 38 U.S.C.
 § 5101(a)(1)(B), which was enacted in 2016 and provides
 that the “Secretary [of the VA] may pay benefits [including
 accrued benefits] . . . to a survivor of a veteran who has not
 filed a formal claim if the Secretary determines that the
 record contains sufficient evidence to establish the entitle-
 ment of the survivor to such benefits.”             38 U.S.C.
 § 5101(a)(1)(B)(i). Mrs. Merritt did not rely on this section
 of the statute in her opening brief. After oral argument, we
 ordered supplemental briefing addressing the applicability



     4   The current regulation specifies that only three
 types of communications may constitute an intent to file a
 claim: (1) an electronic application through the VA website,
 (2) an “intent to file a claim form” prescribed by the VA,
 and (3) “[o]ral intent communicated to designated VA per-
 sonnel and recorded in writing.” 38 C.F.R. § 3.155(b)(1)(i)–
 (iii).
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 10                                           MERRITT   v. WILKIE



 of the statute to Mrs. Merritt’s accrued benefits claim in
 this case. In her supplemental brief, Mrs. Merritt argued
 for the first time that § 5101(a)(1)(B) “renders it unneces-
 sary for [her] to file a . . . claim for accrued benefits . . .
 within one year of Mr. Merritt’s death.” Appellant’s Supp.
 Br. 6. We conclude that § 5101(a)(1)(B) is irrelevant here.
     Congress enacted § 5101(a)(1)(B) as an informal claim
 process to “[e]xpedite payment of survivor’s benefits” rec-
 ognizing that the then-existing “system for processing sur-
 vivor’s benefits [wa]s inefficient because VA employees
 [we]re required to review paperwork that may already be
 in the veteran’s file” and required the survivor to “resubmit
 documents that may already be in [the] VA’s possession.”
 H.R. Rep. No. 114-405, at 23 (2016). Section 5101(a)(1)(B)
 was intended to serve as an alternative claim process when
 the “VA has the information necessary to establish entitle-
 ment to benefits,” allowing the survivor to claim accrued
 benefits without filing duplicative paperwork. Id.; see also
 Reeves, 682 F.3d at 993 n.3 (noting that a survivor’s ac-
 crued benefits claim “incorporates any prior adjudications
 of the service-connection issue on claims brought by the
 veteran” (quoting Padgett v. Nicholson, 473 F.3d 1364,
 1369 (Fed. Cir. 2007))).
      While it is true that Mrs. Merritt served Mr. Merritt’s
 death certificate on the VA, there was no argument in Mrs.
 Merritt’s opening brief that she sought benefits pursuant
 to § 5101(a)(1)(B), or that the Secretary has made a “deter-
 mination” pursuant to § 5101(a)(1)(B)(i). Thus, Mrs. Mer-
 ritt, having failed to make an argument under
 § 5101(a)(1)(B), we need not decide whether such a deter-
 mination by the Secretary under § 5101(a)(1)(B)(i) (declin-
 ing the payment of accrued benefits) would be appealable
 to the Veterans Court and, by extension, this court. We
 simply hold that where, as here, the surviving spouse seeks
 survivorship benefits pursuant to § 5121, § 5101(a)(1)(B)
 does not excuse her failure to file a formal claim within one
 year after the veteran’s death.
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 MERRITT   v. WILKIE                                      11



     We conclude that § 5101(a)(1)(B) does not prevent this
 case from becoming moot.
     The case is dismissed as moot because Mrs. Merritt did
 not preserve her claim for accrued benefits by filing a for-
 mal claim within one year of Mr. Merritt’s death as re-
 quired under 38 U.S.C. § 5121(c).
                        DISMISSED
                           COSTS
     No costs.
