 United States Court of Appeals for the Federal Circuit


                                     2006-7364



                                 CELERINA PELEA,

                                                           Claimant-Appellant,

                                          v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,


                                                           Respondent-Appellee.


      Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

       Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney
General, and Jeanne E. Davidson, Director. Of counsel on the brief were Michael J.
Timinski, Deputy Assistant General Counsel, and Martin J. Sendek, Staff Attorney,
United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Per Curiam
 United States Court of Appeals for the Federal Circuit
                                      2006-7364

                                  CELERINA PELEA
                                                            Claimant-Appellant,

                                           v.

                 R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.

                          _____________________________

                           DECIDED:    August 7, 2007
                         ______________________________



Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and SCHALL, Circuit
Judge.

FRIEDMAN, Senior Circuit Judge.

        The principal issue is whether the estate of a veteran’s widow may continue to

pursue her unadjudicated claim for benefits based on the veteran’s military service. We

hold that the estate may not, and therefore affirm the dismissal by the Court of Appeals

for Veterans Claims (“Veterans Court”) of the appeal.

                                           I

        A. A brief description of the statutory provisions governing benefits claims by

veterans and their family members will be helpful in understanding the issue in this

case.

        Congress has provided separate systems of benefits for veterans and for their

surviving family members. Chapter 11 of Title 38 of the United States Code governs

veterans’ claims for disability compensation. Generally, such compensation is payable
only to veterans, Seymour v. Principi, 245 F.3d 1377, 1379 (Fed. Cir. 2001), and it ends

on the last day of the month before the veteran’s death, see 38 U.S.C. § 5112(b)(1). A

veteran’s spouse, children, or dependent parents may obtain unpaid benefits owed to

the veteran at the time of the veteran’s death.      See 38 U.S.C. § 5121.    But such

“survivors may not pursue disability compensation claims of a veteran, even as heirs to

the veteran’s estate.” Haines v. West, 154 F.3d 1298, 1300 (Fed. Cir. 1998). This court

repeatedly and consistently has held that a veteran’s claim for disability compensation

under chapter 11 does not survive the veteran’s death.          See e.g., Richardson v.

Nicholson, 476 F.3d 883, 886-87 (Fed. Cir. 2007).

      Chapter 13 of Title 38 provides for and governs dependency and indemnity

compensation benefits for certain survivors of veterans. Under 38 U.S.C. § 1310(a)

dependency and indemnity compensation benefits are to be provided for a veteran’s

surviving spouse, children, or parents if certain conditions are met.        38 U.S.C.

§§ 1310(a), 1311, 1313, 1315. Like a veteran’s benefits, a veteran’s surviving spouse’s

benefits terminate on the last day of the month before the surviving spouse’s death, see

38 U.S.C. § 5112(b)(1), and the deceased veteran’s children may obtain the unpaid

benefits owed to the widow at her death, see 38 U.S.C. § 5121(a)(3).

      B. The appellant Celerina Pelea (“Mrs. Pelea”)’s husband died on November 21,

1979. Twenty years later, Mrs. Pelea filed with the Department of Veterans Affairs

(“VA”) regional office a claim for dependency and indemnity compensation

(“compensation”). She submitted a form from the Phillipine Veterans Affairs Office that

certified that Mr. Pelea was a veteran of World War II. The VA’s attempt to verify Mr.

Pelea’s military service was unproductive, and it rejected her claim.




2006-7364                                   2
      The Board of Veterans’ Appeals (“Board”) affirmed that ruling, holding that the

evidence she submitted was insufficient to prove her husband’s military service. On

appeal, however, the Veterans Court vacated the Board’s decision and remanded to

clarify whether the VA had notified Mrs. Pelea what additional evidence she must

submit to prove her claim. On appeal we vacated the Veterans Court’s decision and

remanded for further proceedings. Pelea v. Principi, No. 03-7184 (Fed. Cir. Apr. 23,

2004). On August 5, 2005, the Veterans Court again vacated and remanded on the

notice issue. Pelea v. Nicholson, 19 Vet. App. 296 (2005).

      Mrs. Pelea died on September 6, 2005. A series of motions followed, including

the government’s motion for the Veterans Court to recall its judgment because Mrs.

Pelea’s claim did not survive her death. Mrs. Pelea’s counsel opposed and moved to

substitute her estate. The Veterans Court denied the motion to substitute, withdrew its

latest opinion and dismissed the appeal.

                                            II

      The statutory provision governing “Dependency and indemnity compensation to a

surviving spouse” states that such compensation “shall be paid to a surviving spouse” at

various rates. See 38 U.S.C. § 1311. There is no suggestion, let alone indication, that

under this provision the widow’s right to seek such compensation continues after her

death or that her estate may continue to press her claim for a benefit she sought but

had not yet been awarded before she died.

      The provisions of Chapter 11 governing benefits to veterans and those of

Chapter 13 governing benefits to deceased veterans’ survivors parallel each other. As

previously noted, “the clear intent expressed by the structure and language of the




2006-7364                                   3
statutory scheme . . . [is] that a veteran’s claim to disability benefits terminates at

death.” Seymour, 245 F.3d at 1379 (quoting Richard v. West,161 F.3d 719, 722 (Fed.

Cir. 1998)).   For these reasons, “‘survivors may not pursue disability compensation

claims of a veteran, even as heirs to the veteran’s estate.’” Id. (quoting Haines, 154

F.3d at 1300). There is no reason to believe that Congress intended to provide more

favorable treatment for the estates of widows than it did for the estates of the veterans

themselves.

       It seems most unlikely that Congress intended to provide more favorable

treatment for veterans’ widows than it provided for veterans, who are the primary focus

of the veterans’ benefits legislation. If Congress intended thus to favor the widows, one

would expect it either to have so provided explicitly in the statutory provisions or

manifested that intent in the legislative history. It did neither.

       Padgett v. Nichoslon, 473 F.3d 1364 (Fed. Cir. 2007), upon which Mrs. Pelea

relies and which has some superficial similarities to the present case, does not in fact

help her.   That case involved a claim by a veteran (Padgett) for disability benefits

covering injuries he incurred in the service.        He asserted two grounds for service

connection for his disability.    The regional office denied his claim, and the Board

affirmed. The Veterans Court en banc reversed the Board’s rejection of one ground of

service connection, and remanded that “claim for assignment of a disability rating and

an effective date.” Padgett, 473 F.3d at 1366. It vacated and remanded for further

Board proceedings on the other ground of service connection.          Id.   Upon learning

shortly thereafter that Padgett had died four months earlier, the Veterans Court




2006-7364                                      4
withdrew its en banc opinion, vacated the underlying Board decision, and dismissed the

veteran’s appeal as moot. Id. at 1367.

       This court reversed. It held that the Veterans Court was authorized to make its

judgment effective nunc pro tunc, and that such retroactive relief was “appropriate in

this case.” Id. at 1368. Recognizing “the general rule that a veteran’s claim for benefits

ends with his death,” id. at 1370, it held that the veteran’s widow should be substituted

for him, since if “Mrs. Padgett could not be substituted, nunc pro tunc relief would be

inappropriate,” id.

       In Padgett, making the Veterans Court judgment effective nunc pro tunc—

presumably to the day before the veteran died—meant that prior to his death, Padgett

had established his entitlement to disability benefits. Under the statutory scheme, his

widow could recover those benefits.

       In the present case, however, Mrs. Pelea has not contended that the Veterans

Court judgment in her favor should be made effective nunc pro tunc to the date of her

death. More importantly, to do so would not entitle her to any accrued benefits. The

Veterans Court held only that the Board should further consider whether the VA had

adequately informed her what additional evidence she should submit to support her

claim. Under that ruling, she still was a long way from establishing either that her

deceased husband had served in the United States military or that his death was

connected with such service.




2006-7364                                   5
                                            III

      Since we hold that Mrs. Pelea’s right to pursue her claim for dependency and

indemnity compensation benefits terminated on her death, it follows that the Veterans

Court properly denied her estate’s application to be substituted for her as a party in the

case. Padgett, 473 F.3d at 1370.

                                     CONCLUSION

      The judgment of the Veterans Court is

                                          AFFIRMED.




2006-7364                                   6
