Veteranclaims’s Blog

April 14, 2014

Panel Decision Applying; Wingard v. Shinseki, 26 Vet.App. 334, 348 (2013); Arguments Cannot Be Ignored

Excerpt from decision below:
“However, “prior cases that do not squarely address an issue are not binding precedent.” Wingard v. Shinseki, 26 Vet.App. 334, 348 (2013) (citing United States v. County of Cook, Illinois, 170 F.3d 1084, 1088 (Fed. Cir. 1999)); see also Nat’l Cable Television Ass’n v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1581 (Fed. Cir. 1991) (“When an issue is not argued or is ignored in a decision, such decision is not precedent to be followed in a subsequent case in which the issue arises.”). Thus, although we ultimately find Mr. Morris’s arguments unpersuasive, we cannot simply ignore them under the assumption that this Court or the Federal Circuit previously considered and rejected them sub silentio.”


NO. 12-1913
On appeal from the Board of Veterans’ Appeals
(Decided March 20, 2014)
Douglas J. Rosinski, of Columbia, South Carolina, was on the brief for the
Will A. Gunn, General Counsel; David L. Quinn, ActingAssistant
GeneralCounsel; Michael
A. Carr, Acting Deputy Assistant General Counsel; and Laura Bernasconi,
Appellate Attorney, all
of Washington, D.C., were on the brief for the appellee.
BARTLEY, Judge, filed the opinion of the Court. LANCE, Judge, filed a
separate opinion
concurring in the result.
BARTLEY,Judge: ShermanE. Morris, Sr. (Mr. Morris), who wasthebrother,
legal custodian of deceased veteran Burnell L. Morris (the veteran),
appeals through counsel a
February27, 2012, Board of Veterans’ Appeals (Board) decision denying
entitlement to benefits due
and payable at the time of the veteran’s death. Record (R.) at 3-15. This
appeal is timely and the
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Mr.
Morris argues that he is
entitled to these benefits because he qualifies as an heir of the
veteran’s estate under Georgia state
law and because that state law is not preempted by 38 U.S.C. § 5121, the
Federal statute that
narrowly defines—and thus excludes him from—the classes of individuals
eligible to receive
accrued benefits.
Based on the novelty of Mr. Morris’s arguments, panel consideration is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For
the reasons set forth
below, however, the Court will reject Mr. Morris’s arguments and affirm
the February 2012 Board

The veteran served on active duty in the U.S. Navy from June 1974 to
September 1988. See
R. at 4, 480. In August 1988, he was diagnosed with chronic, paranoid
schizophrenia and discharged
as unfit for further duty. R. at 428-30. In March 1997, the VA regional
office (RO) granted service
connection forschizophreniaandawardeda50%disabilityevaluation
(R. at 301-03, 316-19) but withheld monthly disability compensation
payments because the veteran
was on the temporary disabled retirement list and receiving monthly
military retirement payments.
R. at 181, 291-94; see 38 U.S.C. § 5304 (1994). Section 5304, although
since revised, at the time
generallyprohibited concurrent payment
In September 2003, upon request of the veteran and after a VA medical
examination, the RO
increased the disability evaluation for service-connected schizophrenia to
100% effective February
7, 2001. R. at 181-94, 209. The increase was accompanied by two caveats.
First, VA advised that,
in the examining physician’s opinion, the veteran was not competent to
manage his personal affairs
and VA proposed to make an official determination of incompetency. R. at
193-94. Second, VA
advised that, although the veteran was no longer receiving military
retirement pay, VA would
withhold the monthly increase in disability compensation payments until it
could confirm the total
amount of severance pay the veteran had received after being released from
the temporary disabled
retirement list. R. at 181-82; see 38 U.S.C. § 1161 (2000) (“The
deduction of disability severance
pay from disability compensation, to the extent required by section 1212[(
c)] of title 10, shall be
made at a monthly rate not in excess of the rate of compensation to which
the former member would
be entitled based on the degree of such former member’s disability as
determined on the initial
Department rating.”).
In February 2004, VA found the veteran not competent to handle
disbursement of VA funds
effective February 7, 2004. R. at 169-75. The following month, VA
recognized Mr. Morris as the
veteran’s fiduciary and legal custodian but would not release the withheld
funds until Mr. Morris
obtained an $85,000 surety bond.1
R. at 155; see 38 C.F.R. § 13.105 (2013) (“The Veterans Service
In the VA context, a “surety bond” is an agreement whereby a fiduciary
pledges personal assets or obtains a
corporate insurance policy as insurance against the fiduciary’s actions in
the performance of the fiduciary’s work or
services, to protect a beneficiary’s estate from mismanagement or abuse.
REWRITE, pt. XI, ch. 3, sec. E.22.

Center Manager may require a legal custodian, custodian-in-fact or chief
officer of a private
institution recognized to administer Department of Veterans Affairs
benefits on behalf of a
beneficiary, to furnish a corporate surety bond in an amount determined to
be sufficient to protect
the interest of the beneficiary.”).
An April 2005 VA field examiner found the veteran well cared for and
recommended paying
the full monthly amount of VA compensation beginning that month. R. at 151-
54. But the field
examiner also recommended that VA continue to withhold the more than $75,
000 in withheld and
unpaid compensation until Mr. Morris posted a surety bond with the RO. R.
at 154.
The veteran died on May 30, 2005, in Atlanta, Georgia, from organic heart
disease. R. at
129. At the time of the veteran’s death, Mr. Morris had not obtained a
surety bond and VA had not
released the more than $75,000 in compensation benefits due but unpaid. In
December 2005, Mr.
Morris sought reimbursement for expenses paid for the veteran’s last
sickness and burial, and VA
paid that benefit in the amount of $1,749.45, in August 2006. R. at 102-03,
106. When Mr. Morris
sought the due and unpaid “accrued benefits” VA had been withholding (R.
at 93), VA advised him
that as a fiduciary he was not entitled to accrued benefits other than
those already paid to reimburse
burial expenses (R. at 78-88). Mr. Morris filed a Notice of Disagreement
in February 2007, and VA
issued a Statement of the Case in December 2008. R. at 78-88. Thereafter,
Mr. Morris appealed to
the Board. R. at 76.
In October 2011 testimony before the Board, Mr. Morris stated that, per VA
instructions, he
returned $2,299 in disability compensation, which was paid into the
fiduciary’s account on June 1,
2005, consisting of the payment for the month of the veteran’s death. R.
at 26-27; see 38 U.S.C.
5112(b)(1) (stating that the effective date for the discontinuance of
disability compensation based
on a payee’s death “shall be the last day of the month before such . . .
death occurs”). Mr. Morris
further argued that as the veteran’s fiduciaryhe was entitled to the tens
of thousands of dollars in due
and unpaid compensation. See generally R. at 18-42.
In the February 27, 2012, decision on appeal, the Board found that Mr.
Morris had at no time
obtained the required surety bond and that Federal law did not permit
payment of due but unpaid
compensation to Mr. Morris after the veteran’s death, either as the
veteran’s legal custodian or as his

brother. Accordingly, the Board denied entitlement to benefits due and
payable at the time of the
veteran’s death. R. at 3-14. This appeal followed.
On appeal, Mr. Morris does not challenge VA’s previous decisions to
withhold portions of
the veteran’s monthly compensation or to condition release of those
withheld funds during the
veteran’s lifetime on Mr. Morris’s obtaining a surety bond. Rather, Mr.
Morris argues that he is
entitled to the withheld funds due but unpaid at the time of the veteran’s
death by operation of
Georgia state law. To support this conclusion, Mr. Morris contends that
courts have misinterpreted
38 U.S.C. § 5112—which establishes the date that a deceased payee’s
compensation is
discontinued—to terminate a “payee’s rights in alreadyawarded payments”
at the time of the payee’s
death. Appellant’s Brief (Br.) at 9-13. Once it is clear that “[s]ection
5112 discontinues only future
monthly payments as of the last day of the month before the payee’s death” (
id. at 12), Mr. Morris
continues, the right to those already awarded payments becomes part of the
payee’s estate, which is
distributed according to state law unless state law has been preempted by
Federal legislation. Id. at
14-18. Finally, Mr. Morris contends that 38 U.S.C. § 5121—which
specifies the categories of
individuals entitled to receive benefits due and unpaid—does not preempt
Georgia state inheritance
law. Thus, Mr. Morris concludes, he is entitled as the veteran’s heir to a
portion of the more than
$75,000. Id. at 18-26. The Court is not persuaded by Mr. Morris’s
A. VA Accrued Benefits Due and Unpaid
In relevant part, 38 U.S.C. § 5121 states as follows:
Except as provided in section 3329 and 3330 of title 31, periodic monetary
(other than insurance and servicemen’s indemnity) 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 and section 5122 of this title referred to as “accrued benefits”)
and due and
unpaid, shall, upon the death of such individual be paid as follows:
(1) Upon the death of a person receiving an apportioned share of
benefits payable to a veteran, all or any part of such benefits to the
veteran or to any other dependent or dependents of the veteran, as
may be determined by the Secretary.
(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 widow or remarried surviving spouse, to the
children of the deceased veteran.
(4) Upon the death of a child, to the surviving children of the veteran
who are entitled to death compensation, dependency and indemnity
compensation, or death pension.
(5) Upon the death of a child claiming benefits under chapter 18 of
this title, to the surviving parents.
(6) 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.
38 U.S.C. § 5121(a); see also 38 C.F.R. § 3.1000(a) (2013). Section 5121 “
allows a qualified
survivor to stand in the deceased veteran’s shoes and carry on the
veteran’s claim for the limited
purpose of receiving a single lump sum payment of money that was ‘due and
unpaid’ to the veteran
at the time of death.”2
Sheets v. Nicholson, 20 Vet.App. 463, 466 (2006). Therefore, a claim for
benefits due and unpaid such as presented in this case “is not an original
claim independent of the
veteran’s underlying claim, but entirely derivative of a veteran’s claim.”
Id.; see also Zevalkink v.
Brown, 102 F.3d 1236, 1241-42 (Fed. Cir. 1996).3
In Bonny v. Principi, 16 Vet.App. 504, 506-08 (2002), we held that section
5121(a) created two distinct
categories of benefits: (1) “accrued benefits,” which were benefits to
which a claimant was entitled at death based upon
evidence in the claims file at that time, and which were limited to a two-
year period prior to the claimant’s death; and
(2) “benefits awarded but unpaid” under existing ratings or decisions at
the time of the claimant’s death, which were not
subject to a two-year limitation. Congress amended section 5121(a) in 2003,
removed the two-year limitation, and
eliminated the comma that formed the basis for Bonny’s distinction between
the two categories of benefits. See Nolan
v. Nicholson, 20 Vet.App. 340, 347 n.3 (2006); see also Veterans Benefits
Act of 2003, Pub. L. No. 108-183,
§ 104(c)(1), 117 Stat. 2651, 2656. See generally VA Fast Letter 07-07 (
Mar. 29, 2007) (explaining VA’s changes to its
accrued benefits regulation to conform to the amended section 5121(a)).
Previously, the U.S. Court of Appeals for the Federal Circuit and this
Court had held that “Congress intended
that a veteran’s claim would be extinguished upon . . . death.” Reeves v.
Shinseki, 682 F.3d 988, 996 (Fed. Cir. 2012)
(citing Zevalkink and Landicho v. Brown, 7 Vet. App. 42, 47 (1994)). In
2008, Congress enacted legislation that
explicitly authorizes an accrued-benefits claimant to be substituted in VA
proceedings for a deceased payee without
having to file a separate accrued-benefits claim. See Veterans’ Benefits
Improvement Act of 2008, Pub. L. No. 110-389,
§ 212, 122 Stat. 4145, 4151 (codified at 38 U.S.C. § 5121A). Recognizing
a shift in Congress’s view on the matter, the
Court adopted the approach outlined in section 5121A and now permits
substitution where an appellant dies with a case
pending before the Court. See Breedlove v. Shinseki, 24 Vet.App. 7, 8-9 (
2010) (per curiam order); see also Reeves,
682 F.3d at 997 (“[T]here is no continuing justification for refusing to
allow an appropriate accrued-benefits claimant
to be substituted for a veteran who dies while his appeal is pending
before this court.”). However, section 5121A applies
only to claims where the payee died after October 10, 2008, see generally
Copeland v. Shinseki, 26 Vet.App. 86 (2012),
and is not applicable here; in any case, the appellant would not qualify
for substitution.

In enacting section 5121, Congress limited eligibility for accrued
benefits due and unpaid to
the same few categories of dependent family members for whom a veteran
could seek additional
disability compensation while alive.4
See 38 U.S.C. §§ 1115, 1135; see also 38 U.S.C. §§ 101(4)
(defining “child”), 102 (relating to “dependent parent”). As relevant here,
where we are dealing with
the death of a veteran and not the death of another category of VA
beneficiary, the only persons
entitled to accrued benefits due and unpaid under the statute are, in the
following order, the veteran’s
surviving spouse or the veteran’s children5
or the veteran’s dependent parents.
38 U.S.C.
§ 5121(a)(2). If no eligible listed survivor is alive at the time of the
veteran’s death, then accrued
benefits due and unpaid may be paid to any person “who bore the expense of
last sickness and
burial,” but “only so much of the accrued benefits [may be paid] . . . as
may be necessary to
reimburse the person.” Id. § 5121(a)(6). “No other categories of payee at
death are provided in the
statute.” Youngman v. Shinseki, 699 F.3d 1301, 1303 (Fed. Cir. 2012). Both
this Court and the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) have repeatedly
affirmed VA denials of
accrued-benefits claims by persons other than those listed in section 5121(
a). See, e.g., id. at 1303-
04 (denying accrued benefits to a deceased veteran’s fiduciary for
distribution to the veteran’s
“heirs”); Pelea v. Nicholson, 497 F.3d 1290, 1291-92 (Fed. Cir. 2007) (
denying accrued benefits to
deceased claimant’s “estate”); Richard v. West, 161 F.3d 719, 721-23 (Fed.
Cir. 1998) (denying
accrued benefits to a deceased veteran’s brother); Wilkes v. Principi, 16
Vet.App. 237, 242 (2002)
(denying accrued benefits to a deceased veteran’s nephew); see also
Caranto v. Brown, 4 Vet.App.
516, 518 (1993) (remanding the matter for the Board to determine whether
veteran’s daughter
qualified as a “child” for accrued-benefits purposes).
Under the clear terms of section 5121(a), Mr. Morris is not eligible for
VA accrued benefits
due and unpaid at the time of the veteran’s death. His status as the
deceased veteran’s brother, which
The deceased VA beneficiary in this case was a veteran, and we therefore
refer throughout our analysis to VA
claimants or beneficiaries who are veterans. See 38 U.S.C. § 5121(a)(2).
We recognize, however, that under other
provisions of section 5121 the deceased VA beneficiary might be someone
other than a veteran, such as a veteran’s
surviving spouse or a veteran’s child, who dies with a VA claim pending.
38 U.S.C. § 5121(a)(3)-(4).
Although the term “children” is not defined in sections 1115, 1135, or
5121(a), a separate veterans statute
defines child—with additional restrictions not relevant here—as an
unmarried person who (1) is under the age of 18, (2)
became permanently incapable of self-support before turning 18, or (3) is
pursuing a qualified educational program
between the ages of 18 and 23. See 38 U.S.C. § 101(4); see also Nolan, 20
Vet.App. at 348.

is not one of the categories of persons listed in section 5121(a), makes
him ineligible for accrued
benefits due and unpaid. See Richard, supra.
Nor does the fact that Mr. Morris served as the veteran’s fiduciary before
the veteran died
lead to eligibility. In Youngman, the Federal Circuit held that a “
veteran’s fiduciary does not have
standing or authority to receive accrued benefits that were unpaid at the
veteran’s death, other than
in accordance with payments as provided in 38 U.S.C. § 5121(a), to
designated family members or
for reimbursement of the expenses of last sickness and burial.” 699 F.3d
at 1304. In so holding, the
court rejected the fiduciary’s argument that she was entitled to payment
byvirtue of 38 U.S.C. § 5502
(Payments to and supervision of fiduciaries). Although this provision “
allows a fiduciary to stand
in the shoes of a veteran,” the Federal Circuit reasoned, “the statute
does not grant the fiduciary
rights beyond those of the veteran himself.” Id. Because the veteran “died
without any heirs in the
categories qualifying under § 5121, his unpaid benefits died with him.”
Id. To hold otherwise, the
Federal Circuit noted, “would lead to the peculiar result whereby non-
qualifying heirs of veterans
with fiduciaries could receive the veteran’s accrued unpaid benefits,
while non-qualifying heirs of
veterans without fiduciaries would not be eligible to receive such
benefits.” Id.
Thus, under settled precedent, Mr. Morris is not entitled to accrued
benefits due and unpaid
at the time of the veteran’s death because he is not an eligible accrued-
benefits claimant.
Recognizing this, the Board properly denied his claim. See R. at 13-14.
B. Mr. Morris’s Arguments
Mr. Morris contends that the caselaw discussed above does not prevent his
receiving accrued
benefits due and unpaid because neither court has considered the specific
arguments he now advances. However, nothing in Mr. Morris’s arguments persuades the Court that he is eligible to receive these benefits.6

Our concurring colleague believes that Mr. Morris’s arguments are foreclosed by controlling Federal Circuit precedent and we need not address them. See post. However, “prior cases that do not squarely address an issue are not binding precedent Wingard v. Shinseki, 26 Vet.App. 334, 348 (2013) (citing United States v. County of Cook, Illinois, 170 F.3d 1084, 1088 (Fed. Cir. 1999)); see also Nat’l Cable Television Ass’n v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1581 (Fed. Cir. 1991) (“When an issue is not argued or is ignored in a decision, such decision is not precedent to be followed in a subsequent case in which the issue arises.”). Thus, although we ultimately find Mr. Morris’s arguments unpersuasive, we cannot simply ignore them under the assumption that this Court or the Federal Circuit previously considered and rejected them sub silentio.

1. Whether Federal or State Law Controls In This Case
Mr. Morris asserts that, barring contrary disposition by Federal law, the
veteran’s right to
“already awarded payments . . . not terminated before death” passes to his
estate. Appellant’s Br. at
14-15. Mr. Morris further asserts that under Georgia state law he
qualifies as an heir of the veteran’s
estate. See id.; see also Ga. Code Ann. § 53-2-1(c) (2013) (providing
that siblings of an intestate
decedent shall share the decedent’s estate equally when the decedent is
not survived by a spouse,
child, descendant of a child, or parent). Finally, Mr. Morris contends
that Congress did not preempt
state laws of descent when it enacted 38 U.S.C. § 5121 and, hence, he is
entitled to the disability
compensation due and unpaid at the time of the veteran’s death,
approximately$75,000. Appellant’s
Br. at 16-27.
The Supremacy Clause of the U.S. Constitution provides that Federal law “
shall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” U.S.
Const., Art. VI, cl. 2.
“Under this principle, Congress has the power to preempt state law.”
Arizona v. United States,
132 S. Ct. 2492, 2500 (2012); see Dow Chem. Co. v. Exxon Corp., 139 F.3d
1470, 1473 (Fed. Cir.
1998) (“Pursuant to the Supremacy Clause, state causes of action are
preempted if they stand as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress in
enacting a statute.” (internal quotation marks and citation omitted)).
There are three circumstances in which Federal law will supercede state law.
First, Congress
may preempt state law by including an express provision in a Federal
statute withdrawing certain
powers from the states. Arizona, 132 S. Ct. at 2500-01. This is known as
express preemption.
Second, preemption of state law may be inferred from “a framework of
regulation ‘so pervasive . . .
that Congress left no room for the States to supplement it’ or where there
is a ‘federal interest . . . so
dominant that the federal system will be assumed to preclude enforcement
of state laws on the same
subject.'” Id. at 2501 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)). This is
known as field preemption. Third, Federal law will preempt state law when
there is a conflict
between the two, such that “compliance with both federal and state
regulations is a physical
impossibility,” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,
142-43 (1963), or the
challenged state law “stands as an obstacle to the accomplishment and
execution of the full purposes

and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
This is known as conflict
preemption. When Congress legislates in a field “which States have
traditionally occupied,” courts
should “start with the assumption that the historic police powers of the
States were not to be
superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.” Rice,
331 U.S. at 230.
Mr. Morris argues that Congress did not expressly preempt state
inheritance laws in the
context of accrued benefits, and the Court agrees: nothing in section 5121
or any related statute
explicitly withdraws from the states the power to propound inheritance
laws that might affect
veterans. See Arizona, 132 S. Ct. at 2500-01.
However, to the extent that a state statute such as Georgia’s would
purport to pass VA
accrued benefits due and unpaid to heirs defined by state law—that is,
to anyone other than those
persons specified in section 5121(a)(2)—the state law cannot survive a
Federal conflict preemption
analysis. Mr. Morris emphasizes the general primacy of state law in
inheritance matters and urges
the Court to avoid reading section 5121 in a manner that would conflict
with such law.
Although neither this Court nor the Federal Circuit has addressed
preemption in the context
of veterans benefits, the Supreme Court has recognized that Federal law
affecting veterans benefits
will preempt state laws that impede the objectives of Federal legislation,
even in areas of traditional
state concern. In United States v. Oregon, 366 U.S. 643 (1961), for
example, the Supreme Court
addressed the constitutionality of the predecessor to the current 38 U.S.C.
§ 8520, which provided
that “when a veteran dies without a will or legal heirs in a veterans’
hospital, his personal property
shall immediately vest in and become the property of the United States as
trustee for the sole use and
benefit of the General Post Fund . . . .” Id. at 644 (internal quotation
marks omitted). Rejecting
Oregon’s argument that the Federal statute invaded the province of the
states—the usual recipients
of the property of decedents who die without wills and without heirs—the
Court stated:
Congressundoubtedlyhasthepower—underits constitutionalpowers to
and navies and to conduct wars—to pay pensions, and to build hospitals
and homes
for veterans. We think it plain that the same sources of power authorize
Congress to
require that the personal property left by its wards when they die in
facilities shall be devoted to the comfort and recreation of other ex-
service people
who must depend upon the Government for care. The fact that this law
pertains to
the devolution of property does not render it invalid. Although it is true
that this is

an area normally left to the States, it is not immune under the Tenth
from laws passed by the Federal Government which are, as is the law here,
and proper to the exercise of a delegated power.
Id. at 648-49.
Similarly, in Ridgway v. Ridgway, 454 U.S. 46 (1981), the Court held that
the state of Maine
could not, as part of divorce proceedings, impose a constructive trust on
the proceeds of a U.S. Army
sergeant’s Servicemen’s Group Life Insurance Act (SGLIA) policy. Federal
law provided that a
service member could change the beneficiary of his SGLIA policy at any
time, and the sergeant did
so, designating his second wife as the insurance proceeds recipient,
rather than his first wife and
children. Id. at 48-49, 56. When the first wife sued following the
sergeant’s death, the state supreme
court found in her favor and ordered the imposition of the trust. Id. at
49-50. “Notwithstanding the
limited application of Federal law in the field of domestic relations
generally,” the Supreme Court
stated, “this Court, even in that area, has not hesitated to protect,
under the SupremacyClause, rights
and expectancies established by Federal law against the operation of state
law, or to prevent the
frustration and erosion of the congressional policy embodied in the
federal rights.” Id. at 54
(citations omitted). Given SGLIA’s “unqualified directive to pay the
proceeds to the properly
designated beneficiary” and Congress’s unquestioned interest in enhancing
the morale of service
members through the provision of life insurance immune to “conflicting”
state legal claims, the
Supreme Court concluded that “the controlling provisions of the SGLIA
prevail over and displace
inconsistent state law.” Id. at 56-57, 60; see also Wissner v. Wissner,
338 U.S. 655, 659-61 (1950)
(holding that California community property law could not divert to the
service member’s widow
insurance proceeds from SGLIA’s predecessor program when the service
member had named his
parents as beneficiaries).
The Supreme Court distinguished Ridgway in Rose v. Rose, 481 U.S. 619 (
1987), holding
that the veterans benefits provisions of title 38 did not conflict with,
and hence did not preempt, a
Tennessee statute that required consideration of VA disability benefits in
the calculation of child
support payments. When the father, whose sole income was composed of VA
disability benefits,
failed to pay the ordered support, the state court held him in contempt.
Id. at 622-23. The Supreme
Court rejected his Federal preemption argument, explaining why Ridgway did
not control. “[T]the
critical difference between Ridgway and the present case,” the Court said,
was that Congress did not

make Mr. Ridgway “the exclusive beneficiary of disability benefits.” Id.
at 634. Instead, the Court
noted, “Congress clearly intended veterans’ disability benefits to be used,
in part, for the support of
veterans’ dependents.” Id. at 631; see also id. at 634. Because the state
statute, like the Federal
provisions, considered the needs of the veteran and the veteran’s children,
the Court found the laws
not in conflict. Id. at 636.
Ridgway, and Rose. First, the accrued-benefits statute should not be
considered in isolation but as
part of the congressional scheme to provide benefits for veterans and
their dependents. See Oregon,
supra. Second, when Congress sets forth an “unqualified directive to pay”
certain beneficiaries, it
is not always necessary to try to accommodate inconsistent state law, even
in an area in which the
states usually legislate. See Ridgway, 454 U.S. at 56; see also Hillman v.
Maretta, 133 S. Ct. 1943,
1952 (2013) (citing Ridgway and Wissner approvingly and holding that
Federal law preempted a
state statute that, in the context of a Federal employee life insurance
plan, “interfere[d] with
Congress’ scheme, because it direct[ed] that the proceeds actually’belong’
to someone other than the
named beneficiary by creating a cause of action for their recovery by a
third party”). Finally, when
determining whether state and Federal statutes affecting veterans benefits
can be harmonized and
both effectuated, this Court must examine whether the Federal and state
laws were intended to serve
the interests of the same class of individuals. See Rose, 481 U.S. at 631.
Based on these principles, the Court holds that 38 U.S.C. § 5121(a)
conflicts with, and
therefore preempts, the Georgia statute that would otherwise operate to
pass VA accrued benefits
due and unpaid to individuals other than those specified in section 5121(a).
First, it is undeniable that “Congress has broad latitude in enacting
legislation involving
governmental payment of monetary benefits.” Talon v. Brown, 999 F.2d 514,
517 (Fed. Cir. 1993).
This is particularly true in the area of veterans benefits, where Congress
has exercised legislative
authoritysince the earliest days of the Republic. See, e.g., Hayburn’s
Case, 2 U.S. (Dall.) 409 (1792)
(discussing the Invalid Pensions Act of 1792); see also Oregon, 366 U.S.
at 648-49. Moreover,
section 5121 does not stand alone; it is part of a group of statutes
governing payment of benefits
administered by the Secretary. See generally U.S. Code, Title 38, Pt. IV,
Ch. 51, Sbpt. III. Section
5120 specifies how monetaryVA benefits are to be paid and delivered.
Section 5121, as has already

been discussed, addresses the categories of persons to whom VA may
disperse certain periodic
monetary accrued benefits due and unpaid at the time of a payee’s death.
Section 5121A sets out a
process of substitution for those persons eligible under section 5121 to
collect accrued benefits due
and unpaid when a VA claimant or VA beneficiary dies. Section 5122
specifies how, when there
are no accrued-benefits beneficiaries eligible under 5121, an accrued
benefits payee’s estate may be
entitled to accrued benefits when the accrued benefits payee received but
did not negotiate the
accrued benefits check prior to the payee’s death. See Wilkes, 16 Vet.App.
at 242 (holding that
section 5122 applies to payments received but not negotiated by a payee).
Congress’s carefully
developed scheme in this area is evident even from this small portion of
title 38. When considered
in conjunction with the entirety of the veterans benefits regime, it is
evident that we must view
Congress’s enactment of section 5121 as a precise delineation of those
categories of persons eligible
to receive accrued benefits due and unpaid upon the death of a VA claimant
or VA beneficiary. See,
e.g., Mehrkens v. Blank, 556 F.3d 865, 870 (8th Cir. 2009) (noting that “
Congress has preempted the
field for veterans’ benefits and set up an elaborate remedial scheme”).
For this reason, we cannot subscribe to Mr. Morris’s characterization of
section 5121 as a
“minor statute” that “established a limited exception to the Secretary’s
long-established processes.”
Appellant’s Br. at 20. Section 5121 is not simply a graft of Federal
legislation onto an area
exclusively occupied by state law. In Richard, the Federal Circuit
observed that the legislative
history of section 5121 “broadly reflects a transition from express
prohibitions of payments to
veterans’ estates to explicit allowance of payments to certain designated
individuals.” 161 F.3d at
723. The legislative materials the Federal Circuit relied on further
demonstrate that Congress was
aware that accrued benefits due and unpaid at the time of a VA claimant’s
or beneficiary’s death
might remain in Federal coffersifthereareno eligible surviving
familymembers and those who bore
the expense of last sickness and burial have been reimbursed. See, e.g., H.
R. Rep. No. 78-463, at
14 (1943) (“Where there are no persons entitled to such benefits, within
the classes thus enumerated,
the regulation authorizes payment of such amount undue and unpaid at death
as may be necessary
to reimburse the person who bore the expense of . . . . last sickness as
well as the expense of
burial.”); accord S. Rep. No. 78-403, at 11 (1943).

These authorities further show that, although Congress expressly revised
the governing law
so that an accrued benefits check not negotiated before an accrued
benefits payee’s death will be paid
to the payee’s estate in some cases, it did not likewise liberalize the
law governing eligibility for
accrued benefits. See H.R. Rep. No. 78-463, at 15 (“Cases have arisen
wherein substantial justice
would require that the amount of the [accrued benefits] check received but
not negotiated by the
payee during his [or her] lifetime be considered as an asset of his estate
.”). Current section 5122 of
title 38 reflects this liberalization: An accrued benefits check received
but not cashed prior to death
may in some cases be negotiated by “the duly appointed representative of
the payee’s estate.”
38 U.S.C. § 5122. However, even in such a case, Congress mandated that
the estate will be paid
only the amount, if any, not paid to those listed in section 5121. See id.
Thus, the Court rejects Mr.
Morris’s contention that section 5121 must be read to accommodate state
Second,insection5121,Congress issued an “unqualified directive”
that accrued benefits may
be paid only to certain categories of persons. Ridgway, 454 U.S. at 56.
Subject to minor exceptions
not relevant here, the statute qualifies accrued benefits as those “due
and unpaid””periodic monetary
benefits” arising under all “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 the date of
death.” 38 U.S.C. § 5121(a); see Nolan v. Nicholson, 20 Vet.App. 340, 348 (
2006) (explaining that
“periodic monetary benefits”include
retroactive awards of disability compensation benefits because
“even though the actual payment of retroactive benefits is made in a one-
time lump-sum payment
. . . the benefits that the claimant had been entitled to receive during
his or her lifetime would have
been paid monthly”). The provision continues by stating that, upon
application, these benefits “shall
. . . be paid as follows.” 38 U.S.C. § 5121(a) (emphasis added). In the
case of a VA claimant’s or
VA beneficiary’s death, the statute further specifies not only the
specific categories of persons
eligible to receive accrued benefits but also which categories have
priority and, in some cases, the
manner in which benefits must be shared. 38 U.S.C. § 5121(a)(2). The
language does not permit
the addition of others who may be eligible by operation of state law.
To the extent that Mr. Morris attempts to harmonize section 5121 and state
principles (Appellant’s Br. at 21), he fails to acknowledge the importance
of the clear language
Congress used in section 5121. The fact that state law, in the absence of
a surviving spouse, child,

or parent, would apportion the veteran’s estate among heirs such as his
brother, provides no basis for
this Court to ignore the plain text of section 5121(a) and find that it
does not conflict with state law.
See, e.g., Cleland v. Nat’l Coll. of Bus., 435 U.S. 213, 221 n.9 (1978) (“[
T]he fact that Congress’
judgment may deprive some veterans of the opportunity to take full
advantage of the benefits made
available to veterans by Congress is not a sufficient basis for greater
judicial oversight of that
The Court is aware that section 5121(a)(2)’s definition of those eligible
to receive accrued
benefits due and unpaid means that in this case the benefits that were due
and unpaid to the veteran
will revert to Federal coffers. However, that is apparently the outcome
that Congress intended. See
Richard, 161 F.3d at 723. This Court cannot look to state law to reach a
more equitable result. See
Boyer v. West, 210 F.3d 1351, 1356 (Fed. Cir. 2000) (Courts “can only
interpret the statutes that are
enacted by the Congress. . . . [and] are simply powerless to amend any
statutory provision sua
sponte.”); Fritz v. Nicholson, 20 Vet.App. 507, 511 (2006) (holding that
this Court cannot mandate
an award of benefits contrary to rules provided by Federal law); see also
Metro. Life Ins. Co. v.
Christ, 979 F.2d 575, 582 (7th Cir. 1992) (“Congress . . . has spoken with
force and clarity in
directing to whom insurance benefits are to be paid. Congress created no
exceptions to its statutory
scheme, and courts should be loath to announce equitable exceptions to
legislative requirements or
prohibitions that are unqualified by the statutory text.” (internal
quotation marks omitted)).
Congress’s clear and unqualified instructions in section 5121—regarding
to whom and how VA
accrued benefits that were due and unpaid to a VA beneficiary upon his or
her death are to be
paid—leave no room for the operation of state law.7
Finally, unlike the Supreme Court in Rose, supra, we see no way that
section 5121 can be
effectuated consistent with a state law that would entitle heirs,
other than surviving spouses, children,
and dependent parents, to collect VA accrued benefits that were due and
unpaid at the time of the
VA beneficiary’s death. Congress provides benefits to veterans and to
specified survivors, and these
Mr. Morris states that “if Congress [had] intended to authorize the
Secretary to keep payments not disbursed
under [s]ection 5121, it would have used words that so stated.”
Appellant’s Br. at 24. Given the foregoing discussion,
the words Congress used in section 5121 state precisely that. As the
Federal Circuit said in Youngman, “because [the
veteran] died without any heirs in the categories qualifying under § 5121,
his unpaid benefits died with him.” 699 F.3d
at 1304. Accordingly, we reject any argument Mr. Morris offers that is
premised on the notion that Congress did not
authorize the Secretary to retain accrued benefits in the absence of a
section-5121-eligible claimant.

payments to veterans or survivors may be increased where there are
specific dependent family
members. See Hunt, supra; see also 38 U.S.C. §§ 101(4), 102, 1110, 1115,
1131, 1310 (permitting
disability compensation for veterans, dependency and indemnity
compensation for survivors, and
additional dependent benefits based on certain qualifying relationships).
One reason the Supreme
Court in Rose found that Federal law did not preempt state law was because
the state child support
statute was meant to benefit the same class of persons as Federal veterans
disability compensation
statutes: dependent children. 481 U.S. at 631 (“Congress clearly intended
veterans’ disability
benefits to be used, in part, for the support of veterans’ dependents.”).
In contrast to Rose, Mr.
Morris argues here that any state heir, such as a veteran’s sibling,
should inherit VA accrued benefits
due and unpaid. However, a VA beneficiary such as a disabled veteran is
not entitled to any
additional benefit to support siblings, offspring outside the statutory
definition of “child,” or non-
dependent parents. It is not possible to harmonize a Federal statute that
excludes Mr. Morris, the
brother of the deceased veteran, from the categories of persons entitled
to VA accrued benefits with
a state statute that would include Mr. Morris.
Taken together, the foregoing considerations convince us that the Georgia
statute invoked
by Mr. Morris “stands as an obstacle to the accomplishment and execution
of the full purposes and
objectives of Congress” set forth in 38 U.S.C. § 5121. Hines, 312 U.S. at
67. As such, section 5121
preempts Georgia state inheritance law.
2. Mr. Morris’s Other Arguments
In addition to his preemption argument, Mr. Morris contends that the VA
governing discontinuance of benefits based on a payee’s death conflicts
with 38 U.S.C. § 5112, the
statute that specifies the effective date of discontinuance of benefits on
the death of a VA payee.
Section 5112 specifies that the effective date of a discontinuance “shall
be the last day of the month
before such . . . death occurs.” 38 U.S.C. § 5112(b)(1). Thus, for a
veteran receiving disability
compensation, the right to continuing compensation ends when he or she
dies. Reeves v. Shinseki,
682 F.3d 988, 993 n.3 (Fed. Cir. 2012). VA’s implementing regulation
states: “The effective date
of reduction or discontinuance of an award of pension, compensation, or
dependency and indemnity
compensation for a payee or dependent will be the earliest of the dates
stated in these paragraphs
unless otherwise provided.”
38 C.F.R. § 3.500 (2013).
Paragraph (g)(1) provides that

discontinuance based on the death of a payee takes effect on the last day
of the month before death.
38 C.F.R. § 3.500(g)(1).
Mr. Morris argues that the regulatory phrase “discontinuance of an award
of . . .
compensation” is “substantively different” than the statutory phrase “
discontinuance of
compensation” because the former “alters the intent of Congress from
terminating the right to a
future payment to terminating the entitlement to any payment upon a
payee’s death.” Appellant’s Br.
at 9. Mr. Morris further argues that “[s]ection 5112 discontinues only
future monthly payments as
of the last day of the month before the payee’s death.” Id. Mr. Morris
contends that, because the
right to benefits awarded before the veteran’s death are not terminated
and because the veteran has
a constitutionally protected property interest in those benefits, such
benefits at the time of a veteran’s
death become part of his or her estate, distributed according to state law.
Appellant’s Br. at 14-16.
For several reasons, these contentions are not persuasive.
This argument does not advance Mr. Morris’s position, because he
essentially admits that the
benefits he is claiming are “due and unpaid” and thus fall under section
5121. He appears to believe
that the presence of the regulatory phrase “award of compensation” changed
the outcome in this case
to his detriment. However, even if he is correct that section 5112
discontinues only “future”
payments, and that the use of the word “award” in the regulation
illegitimately extends VA’s reach
to benefits already awarded but not paid, he must still admit that he was
not paid the approximately
$75,000 at issue here and that it was due and unpaid at the time of the
veteran’s death. Thus, Mr.
Morris’s argument that the statute discontinues only “future” payments and
that the regulation
somehow interferes with the statute applying only to the discontinuance of “
future”benefits—in that
it allows VA to extend its reach to benefits already paid—is pointless.
The benefits here were
withheld from the veteran and unpaid at his death.
Moreover, it is unclear what Mr. Morris means by “future payments” when he
asserts that
section 5112 discontinues “only future payments as of the last day of the
month before the payee’s
death.” Appellant’s Br. at 12. Under the present regime, a veteran’s
disability compensation will be
discontinued prior to the veteran’s death. Congress amended 38 U.S.C. §
3012, the predecessor to
current 38 U.S.C. § 5112, in 1962 and mandated that disability
compensation be discontinued
effective the last of the month before a veteran’s death. See Act of Oct.
15, 1962, Pub. L. No. 87-

825, § 2, 76 Stat. 948, 949 (amending 38 U.S.C. § 3012(c)). Prior to
this amendment, the effective
date of discontinuance of compensation by reason of death was fixed as “
the date of death.”
38 U.S.C. § 3012(c) (1958). Although disability compensation is
discontinued before the date of
a veteran’s death, this is not because of an impermissibly broad
To support his argument that the use of the phrase “award of . . .
compensation” in the
implementing regulation impermissibly expanded the scope of section 5112,
Mr. Morris relies on
Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007). Appellant’s Br. at 11.
In Snyder, the Federal
Circuit clarified the meaning of the phrase “total amount of any past-due
benefits awarded on the
basis of the claim,” 38 U.S.C. § 5904(d)(1), when calculating attorney’s
fees for representation of
an incarcerated veteran. Although the amount of monthly compensation
awarded to an incarcerated
veteran is the same as that awarded to veterans not incarcerated, the
compensation paid is reduced
to 10% of that paid to veterans not incarcerated. Snyder, 489 F.3d at 1214-
16. When an attorney
sought 20% of the incarcerated veteran’s past-due benefits, VA informed
him that attorney fees were
calculated as a percentage of “post-withholding past-due benefits,” which
yielded attorney’s fees far
less than expected. Id. at 1215, 1217. The Federal Circuit held that VA’s
regulation misinterpreted
section 5904(d)(1) because the statutory limitation on payments to an
incarcerated veteran did not
change the monthly compensation awarded on the basis of a veteran’s claim,
thus, VA had erred in
calculating attorney’s fees based on the reduced amount of monthly
compensation. Id. at 1218. The
Federal Circuit concluded: “[I]t must be the case that the VA regulations
view the amount ‘awarded’
as distinct from the amount actually payable.” Id. at 1219. Thus, Snyder
explains that, in certain
circumstances, the amount of compensation “awarded” may be different from
the amount of
compensation “actually payable.” Id.
But it is not clear to the Court how Snyder supports Mr. Morris’s argument
that there is a
substantive difference between section 5112 and § 3.500 that would
entitle him to the due and
unpaid benefits he seeks. Simply pointing to an instance where the
Secretary misinterpreted a
statutory use of the word “award” is not sufficient. Snyder does not
change the fact that VA was
withholding certain compensation benefits that were “due and unpaid” at
the time of the veteran’s
death, that section 5121 allows onlycertain prescribed categories of
persons to be paid those benefits
after his death, and that Mr. Morris is not covered under any of those

Mr. Morris’s argument is further weakened, in the Court’s view, by the
fact that he urges an
interpretation of § 3.500 unnecessarily at variance with section 5112.
Although his reading of
§ 3.500 might be a plausible grammatical construction, we do not think
the phrase “award of
compensation” compels Mr. Morris’s understanding of how § 3.500 operates.
When a regulatory
provision can be interpreted in a way that either harmonizes with the
statute it implements or
conflicts with that statute, courts should adopt the harmonious
interpretation. Anthony v. United
States, 520 F.3d 374, 380 (5th Cir. 2008) (“[C]ourts should not interpret
an agency regulation to
thwart the statutory mandate it was designed to implement.”); Progressive
Corp. & Subsidiaries v.
United States, 970 F.2d 188, 192-93 (6th Cir. 1992) (“Wherever possible,
courts should read regulations to be consistent with the statutes that authorize them, and a construction that thwarts the statute which the regulation implements is impermissible.”). In addition to defects already explained, such as the fact that his argument does not advance his position, Mr. Morris’s argument is weakened because, despite the use of “award,” the regulation may be interpreted in a manner harmonious with the statute.
Finally, the Court rejects Mr. Morris’s undeveloped assertion that the veteran’s property interest in his VA disability compensation meant that VA accrued benefits due and unpaid at the time of the veteran’s death became part of the veteran’s estate, distributable according to state law. Appellant’s Br. at 14-16. A veteran has a constitutionally protected property interest in entitlement to VA disability benefits. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed.
Cir. 2009). But “a protectable property interest” in VA disability benefits “extends only so
far as the law creates it.” Singleton v. Shinseki, 659 F.3d 1332, 1335 (Fed. Cir. 2011). State law governs the meaning of “property” and”interests in property” only “[i]n the absence of any controlling federal law.” Barnhill v. Johnson, 503 U.S. 393, 398 (1992). The Court has already explained that section 5121 is such a “controlling federal law,” specifically delineating who is eligible to receive VA accrued benefits due
and unpaid at the time of a payee’s death. This limitation is a clear
congressional mandate, not the
result of an overbroad regulation. Thus, any property interest the veteran
had in his VA benefits did
not include the right to have VA accrued benefits due and unpaid at the
time of his death paid to
heirs by operation of state law.

In sum, we hold that 38 U.S.C. 5121(a) conflicts with a state law that
would operate to pass
VA accrued benefits due and unpaid at the time of a payee’s death to
persons other than those
specified in section 5121(a) and, therefore, section 5121(a) preempts the
Georgia statute invoked by
Mr. Morris.8
Because Mr. Morris, except to the extent that he bore the expense of the
veteran’s last
sickness and burial, is not among the persons that section 5121(a) permits
to receive accrued
benefits, the Court concludes that the Board properlydenied his claim for
entitlement to benefits due
and payable at the time of the veteran’s death.
Therefore, upon consideration of the foregoing, the February 27, 2012,
Board decision is

LANCE, Judge, concurring in the result: Although I agree with my
colleagues that the
February 2012 Board decision should be affirmed and concur with its
analysis in Part II.A, I cannot
join the majority’s analysis in Part II.B as to the interplay between
section 5121 and state law, and
so I am compelled to write separately.
The Federal Circuit has made clear that “a veteran’s claim to disability
compensation under
chapter 11 of title 38 is terminated by his or her death, [and so] a
veteran—and therefore a veteran’s
estate—cannot have a protected property interest [therein].” Richard v.
West, 161 F.3d 719, 723
(Fed. Cir. 1998). In other words, state law is simply not implicated by an
accrued benefits claim, as
any inheritable property interest died with the veteran. Accrued benefits
claims, although derivative
of the veteran’s claims, are distinct property interests, and the class of
eligible accrued benefits
recipients is limited by statute. “‘[A] veteran’s death limits the
recipients, amounts, and processes of recovery of disability compensation to those provided in section 5121.'” Youngman v. Shinseki, 699 F.3d 1301, 1304 (Fed. Cir. 2012) (quoting Richard, 161 F.3d at 722).
Indeed, the Federal Circuit has explicitly held that “[n]o payment can be made to the
veteran’s estate, or any heir other
Because the Court concludes that any state statute purporting to pass VA accrued benefits due and unpaid at the time of a VA claimant’s death to a claimant’s heirs (such as Mr. Morris) conflicts with section 5121 and is, therefore, preempted, the Court need not analyze whether the Federal statute would also displace state law based on field preemption.

than as designated in § 5121(a).” Id. This Court is bound by the decisions of the Federal Circuit and can do nothing in the face of controlling precedent but apply it. See Bethea v. Derwinski, 2 Vet.App.
611, 613 (1992). As the majority recognized in Part II.A, “under settled precedent, Mr. Morris is not entitled to accrued benefits . . . [and] the Board properly denied his claim.” Ante at 7. This holding ends the Court’s inquiry, and the majority’s remaining analysis in Part II. B is mere dictum.



1 Comment »

  1. I am not sure if I am the only veteran who has had this happen, I assume I am not, but the VA purposefully omitted relevant medical records to the PA who evaluated me for tbi. In 1996 I was dx with a brain lesion. That documentation was not turned over to the PA to review for my claim. Are there any case precedent that has to do with something similar?

    Comment by Joseph Oathout — April 15, 2014 @ 1:38 pm

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