Sucic v. Shulkin, 29 Vet.App. 121 (per curiam order) (Oct. 26, 2017)
HELD: A child of a deceased veteran is eligible for substitution only if he/she meets VA’s definition of “child” at the time of the veteran’s death – not just during the pendency of the veteran’s claim.
SUMMARY: The veteran was granted service connection for PTSD in 2007, effective 2003. He appealed for an earlier the effective date all the way up to the Federal Circuit. In February 2016, the Federal Circuit reversed the Veterans Court’s decision and remanded the matter for the Court to consider a 1992 effective date. In May 2016, the CAVC remanded the issue to the Board.
In August 2016, the veteran’s attorney notified the Court that the veteran had died in April 2016 and requested substitution of his three adult children. The attorney acknowledged that the “children” were now adults – but argued that the Court should allow them to be substituted because this appeal involves the effective date of PTSD for the period from 1992 to 2003, and the veteran’s children were minors for all or part of this time period.
The Court disagreed – and held that in order to be substituted “an individual must satisfy the requirements of the statutory framework for these benefits when the veteran dies as opposed to at some point during the pendency of the veteran’s claim.” VA defines an eligible “child” as one who is unmarried and under 18 or “became permanently incapable of self-support” prior to age 18 or who is under age 23 and a full-time student. 38 U.S.C. § 101(4)(A). The Court held: “A child of a deceased veteran is therefore eligible for substitution only if he or she satisfies the definition of 38 U.S.C. § 101(4)(A) ‘upon the death’ of the veteran.” Because none of the adult children met VA’s definition of eligible “child” at the time of the veteran’s death, the Court denied the motion to substitute.