Jack Sucic v. Robert Wilkie, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
JACK SUCIC,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-1486
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-158, Judge Mary J. Schoelen,
Judge Coral Wong Pietsch, Judge William S. Greenberg.
______________________
Decided: April 23, 2019
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
J OSHUA E. K URLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by ROBERT E DWARD K IRSCHMAN, J R., L OREN MISHA
P REHEIM , J OSEPH H. HUNT ; AMANDA BLACKMON, BRIAN D.
G RIFFIN, D EREK SCADDEN, Office of General Counsel,

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SUCIC v. WILKIE 2
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before P ROST , Chief Judge, REYNA and WALLACH ,
Circuit Judges.
P ROST , Chief Judge.
The adult children of deceased veteran Jack Sucic ap-
peal the final decision of the United States Court of Ap-
peals for Veterans Claims (“Veterans Court”) denying their
motion for substitution. Sucic v. Shulkin, 29 Vet. App. 121
(2017). Because the Veterans Court did not err in deter-
mining that Mr. Sucic’s non-dependent, adult children do
not qualify as accrued benefits beneficiaries under 38
U.S.C. § 5121(a), we affirm the Veterans Court’s denial of
their motion for substitution.
I
Mr. Sucic served on active duty from July 1973 to Au-
gust 1979 and from December 1982 to October 1984.
J.A. 17. In June 2007, he was granted service connection
for post-traumatic stress disorder (“PTSD”), effective Jan-
uary 24, 2003. Id. In June 2008, Mr. Sucic filed a notice of
disagreement, requesting an earlier effective date of June
30, 1992. J.A. 23–26. The Board of Veterans’ Appeals
(“Board”) denied Mr. Sucic’s claim for an earlier effective
date. J.A. 30, 39–40. The Veterans Court affirmed the
Board’s decision. Sucic v. Gibson, No. 13-0158, 2014 WL
2926475, at *4 (Vet. App. June 30, 2014), rev’d and re-
manded, Sucic v. McDonald, 640 F. App’x 901 (Fed. Cir.
2016). Mr. Sucic appealed to the Federal Circuit, and in
February 2016, we reversed the Veterans Court’s denial of
an earlier effective date and remanded for further develop-
ment and determination of the effective date. Sucic v.
McDonald, 640 F. App’x 901, 906 (Fed. Cir. 2016). On April
8, 2016, our mandate issued.

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SUCIC v. WILKIE 3
The Veterans Court effectuated our ruling by vacating
the Board’s decision and remanding Mr. Sucic’s case to the
U.S. Department of Veterans Affairs (“VA”) for further de-
velopment and determination of the effective date. Sucic
v. McDonald, No. 13-0158, 2016 WL 3035459, at *2 (Vet.
App. May 27, 2016), withdrawn, Sucic v. Shulkin, 29 Vet.
App. 121 (2017). The Veterans Court entered judgment on
June 20, 2016 and issued its mandate on August 22, 2016.
On April 13, 2016, Mr. Sucic died. J.A. 43–46. His
death occurred five days after our mandate issued but be-
fore the Veterans Court vacated the Board’s decision and
remanded the case to the VA. Mr. Sucic’s counsel did not
notify the Veterans Court of Mr. Sucic’s death until several
months later, on August 31, 2016, shortly after the Veter-
ans Court issued its mandate. See id. On the same day,
Mr. Sucic’s counsel filed an unopposed motion to recall the
Veterans Court’s judgment and remand decision, J.A. 47–
49, and a motion to substitute Mr. Sucic’s three adult chil-
dren as claimants, J.A. 50–53.
The Veterans Court considered whether Mr. Sucic’s
three adult children were eligible accrued benefits benefi-
ciaries under 38 U.S.C. § 5121(a) and therefore qualified
for substitution. Sucic, 29 Vet. App. at 122. The Veterans
Court interpreted the term “[t]he veteran’s children” in
§ 5121(a)(2)(B) and determined that Mr. Sucic’s adult chil-
dren were not eligible accrued benefits beneficiaries. Id. at
125–27. The Veterans Court therefore denied the motion
for substitution and dismissed the case. Id. at 127.
Mr. Sucic’s three adult children appealed. We have ju-
risdiction pursuant to 38 U.S.C. § 7292(a) and (c).
II
We first provide an overview of the statutory provisions
at issue in this appeal.
Substitution in VA proceedings is governed by 38
U.S.C. § 5121A. Section 5121A provides that if the

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SUCIC v. WILKIE 4
claimant dies, living people eligible to receive accrued ben-
efits under § 5121(a) may be substituted as the claimant(s):
If a claimant dies while a claim for any benefit un-
der a law administered by the Secretary, or an ap-
peal of a decision with respect 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 substituted as the claimant for
the purposes of processing the claim to completion.
38 U.S.C. § 5121A(a)(1) (emphases added).
The statute governing accrued benefits is 38 U.S.C.
§ 5121. Accrued benefits are “periodic monetary bene-
fits . . . 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 . . . and [that are] due and
unpaid.” Id. § 5121(a). Section 5121(a)(2) provides the or-
der of eligibility of claimants to receive accrued benefits
upon the death of a veteran:
(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).
Id. § 5121(a)(2) (emphasis added).
Congress also enacted a definitions section for Title 38.
Id. § 101. Section 101 defines “child” as follows:
(4)(A) The term “child” means (except for purposes
of chapter 19 of this title (other than with respect
to a child who is an insurable dependent under sub-
paragraph (B) or (C) of section 1965(10) of such

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SUCIC v. WILKIE 5
chapter) and section 8502(b) of this title) a person
who is unmarried and—
(i) who is under the age of eighteen years;
(ii) who, before attaining the age of eighteen
years, became permanently incapable of self-
support; or
(iii) who, after attaining the age of eighteen
years and until completion of education or
training (but not after attaining the age of
twenty-three years), is pursuing a course of in-
struction at an approved educational institu-
tion;
. . . .
Id. § 101(4)(A).
III
We have exclusive jurisdiction to “review and decide
any challenge to the validity of any statute or regulation or
any interpretation thereof” by the Veterans Court “and to
interpret constitutional and statutory provisions, to the ex-
tent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). We review the Veterans Court’s statutory inter-
pretation de novo. Cook v. Wilkie, 908 F.3d 813, 817 (Fed.
Cir. 2018).
“In statutory construction, we begin ‘with the language
of the statute.’” Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969, 1976 (2016) (quoting Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 450 (2002)). Our “first step ‘is to
determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dis-
pute in the case.’” Barnhart, 534 U.S. at 450 (quoting Rob-
inson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). “It is a
‘fundamental canon of statutory construction that the
words of a statute must be read in their context and with a
view to their place in the overall statutory scheme.’” FDA

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SUCIC v. WILKIE 6
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809 (1989)). Our inquiry ceases “if the statutory lan-
guage is unambiguous and ‘the statutory scheme is coher-
ent and consistent.’” Barnhart, 534 U.S. at 450 (quoting
Robinson, 519 U.S. at 340)).
IV
The issue before us is whether the Veterans Court
erred in denying Mr. Sucic’s children’s motion to substitute
by determining that they did not qualify as accrued bene-
fits beneficiaries under 38 U.S.C. § 5121(a)(2)(B) as “[t]he
veteran’s children” because they were non-dependent
adults.
Mr. Sucic’s adult children argue that “[t]he veteran’s
children” includes non-dependent, adult children, while
the Secretary of Veterans’ Affairs (“Secretary”) argues that
“[t]he veteran’s children” excludes non-dependent, adult
children. While the parties argue for opposing interpreta-
tions of “[t]he veteran’s children,” they both contend that
the statute is clear and unambiguous in favor of their in-
terpretation. See Appellant’s Br. 8; Appellee’s Br. 14.
We agree with the Secretary that the term “[t]he vet-
eran’s children” used in § 5121(a)(2)(B) clearly and unam-
biguously excludes Mr. Sucic’s non-dependent, adult
children.
Congress specifically defined “child” as “a person who
is unmarried” and, among other things, who is “under the
age of eighteen years,” or who “became permanently inca-
pable of self-support” before turning eighteen, or who is
“pursuing a course of instruction at an approved educa-
tional institution” and is eighteen to twenty-three years
old. 38 U.S.C. § 101(4)(A). The definition of “child” in § 101
applies throughout Title 38 with limited exceptions not ap-
plicable here. See 38 U.S.C. § 101 (defining “child” “[f]or
the purposes of this title [38]”); id. § 101(4)(A) (stating that

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SUCIC v. WILKIE 7
the definition of “child” does not apply to chapter 19 of Title
38 (excluding subparagraph (B) or (C) of section 1965(10))
and section 8502(b) of Title 38). The definition of “child” in
§ 101(4)(A) thus applies to § 5121.
Mr. Sucic’s adult children do not argue that they satisfy
the definition of “child” under § 101(4)(A). Instead, they
make several arguments that the term “[t]he veteran’s chil-
dren” in § 5121(a)(2)(B) should not be interpreted using the
definition of “child” in § 101(4)(A). We address each argu-
ment in turn.
First, Mr. Sucic’s adult children argue that the plain
and ordinary meaning of “[t]he veteran’s children” in
§ 5121(a)(2)(B) does not contain any limitations on the age
or dependence of the children and should therefore include
non-dependent, adult children, despite the definition of
“child” in § 101(4)(A). Appellant’s Br. 3–4, 8–9; Reply Br.
2–3, 8–10. However, “‘[w]hen a statute includes an explicit
definition, we must follow that definition,’ even if it varies
from a term’s ordinary meaning.” Digital Realty Tr., Inc.
v. Somers, 138 S. Ct. 767, 776 (2018) (quoting Burgess v.
United States, 553 U.S. 124, 130 (2008)). Here, there is
nothing about the use of the word “children” in the phrase
“[t]he veteran’s children” in § 5121(a)(2)(B) that would
cause “child” to lose its defined meaning from § 101(4)(A).1
1 Although § 101(4)(A) defines “child” in the singular
and § 5121(a)(2)(B) refers to “children” in the plural, the
definition of “child” applies equally when used in the plu-
ral. See 1 U.S.C. § 1 (“In determining the meaning of any
Act of Congress, unless the context indicates otherwise—
words importing the singular include and apply to several
persons, parties, or things.”); Carrow v. Merit Sys. Prot.
Bd., 564 F.3d 1359, 1365–66 (Fed. Cir. 2009) (declining “to
depart from the default rule of statutory construction that
words importing the singular include the plural meaning”

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SUCIC v. WILKIE 8
Mr. Sucic’s adult children also argue that Congress
specifically limited the third group of eligible accrued ben-
efits beneficiaries—“[t]he veteran’s dependent parents”—
in § 5121(a)(2)(C) to dependent parents but did not simi-
larly limit “[t]he veteran’s children” in § 5121(a)(2)(B) to
dependent children. Appellant’s Br. 3–4, 9, 17–22; Reply
Br. 6, 12–14. However, the definition of “child” from
§ 101(4)(A) is already limited to minor or otherwise de-
pendent children. See 38 U.S.C. § 101(4)(A). It therefore
would have been redundant for Congress to include the
word “dependent” to modify “[t]he veteran’s children” in
§ 5121(a)(2)(B). See Gustafson v. Alloyd Co., 513 U.S. 561,
574 (1995) (noting the “sensible rule[] of statutory con-
struction” to “avoid a reading which renders some words
altogether redundant”). Meanwhile, the definition of “par-
ent” in § 101(5) is not already limited to dependent parents:
(5) The term “parent” means (except for purposes
of chapter 19 of this title) a father, a mother, a fa-
ther through adoption, a mother through adoption,
or an individual who for a period of not less than
one year stood in the relationship of a parent to a
veteran at any time before the veteran’s entry into
active military, naval, or air service or if two per-
sons stood in the relationship of a father or a
mother for one year or more, the person who last
stood in the relationship of father or mother before
the veteran’s last entry into active military, naval,
or air service.
38 U.S.C. § 101(5). Because the definition of “parent” in
§ 101(5) is not already limited to dependent parents, Con-
gress necessarily included the “dependent” modifier in
“[t]he veteran’s dependent parents” in § 5121(a)(2)(C) to
limit eligibility to dependent parents. That Congress chose
when “[t]he context of the statutory term . . . does not sug-
gest any reason” to do so).

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SUCIC v. WILKIE 9
to limit eligibility to only dependent parents does not un-
dermine, but instead supports, our conclusion that the chil-
dren who qualify under § 5121(a)(2)(B) are dependent
children as defined in § 101(4)(A).
Mr. Sucic’s adult children also argue that interpreting
“[t]he veteran’s children” to exclude non-dependent, adult
children would lead to “an absurd result” when read in con-
junction with the statutory directive for “[t]he veteran’s
children” to receive the accrued benefits “in equal shares.”
See Appellant’s Br. 13; 38 U.S.C. § 5121(a)(2)(B). They pro-
vide an example of a veteran with four children, two of
whom are minors and two of whom are adults. See Appel-
lant’s Br. 13. Upon the veteran’s death, if there was no
surviving spouse, the two minor children would share the
accrued benefits equally and the two adult children would
receive nothing—a result Mr. Sucic’s children contend
would be absurd. See id. But there is nothing inherently
absurd about a result that provides benefits to minor, de-
pendent children but not adult, non-dependent children.
Finally, Mr. Sucic’s adult children argue that the Vet-
erans’ Benefits Improvement Act of 2008, codified at 38
U.S.C. § 5121A, “fundamentally changed the accrued ben-
efits framework.” Appellant’s Br. 15–17; see also Reply Br.
14–16. However, Mr. Sucic’s adult children cite no support-
ing evidence, and we find none, of such congressional intent
to persuade us that § 5121A changed the definition of
“child” in § 101(4)(A), its applicability to § 5121, or the list-
ing of eligible accrued benefits beneficiaries set forth in
§ 5121(a)(2). See Appellant’s Br. 15−17. Although we
acknowledge that the 2008 Act allowed the substitution of
accrued benefits beneficiaries into the proceedings of the
deceased veteran from whom their claims are derived, the
2008 Act did not change which individuals are eligible in
the first place, as defined in 38 U.S.C. § 5121(a)(2). See
Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of Veterans
Affairs, 809 F.3d 1359, 1361 (Fed. Cir. 2016) (“Those eligi-
ble to substitute for the deceased claimant are the same

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SUCIC v. WILKIE 10
individuals who would be eligible to pursue an accrued ben-
efits claim.” (citing 38 U.S.C. §§ 5121A, 5121(a)(2))). “Be-
cause the status of a potential substitute is not static,
eligibility to substitute can be conclusively determined only
at the time of the claimant’s death,” id. at 1362, and the
Board and the Veterans Court properly assessed this sta-
tus at the time of Mr. Sucic’s death.
We have considered Mr. Sucic’s adult children’s re-
maining arguments and find them unpersuasive.
We hold that the term “[t]he veteran’s children” in
§ 5121(a)(2)(B) is clearly and unambiguously governed by
the definition of “child” in § 101(4)(A) and that Mr. Sucic’s
non-dependent, adult children are not eligible accrued ben-
efits beneficiaries as “[t]he veteran’s children.”
Because we find the statute unambiguous, we do not
reach the issue of deference due to the VA’s interpretation
of “[t]he veteran’s children.” See Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
And because the statute is unambiguous, we also do not
consider whether the canon of construction urged by Mr.
Sucic’s children that ambiguities in provisions for veterans’
benefits “are to be construed in the beneficiaries’ favor” ap-
plies here. See King v. St. Vincent’s Hosp., 502 U.S. 215,
220 n.9 (1991); Appellant’s Br. 27–28; Reply Br. 17–20.
V
We affirm the decision of the Veterans Court denying
Mr. Sucic’s adult children’s motion for substitution because
they are not eligible accrued benefits beneficiaries under
38 U.S.C. § 5121(a)(2)(B) as “[t]he veteran’s children” as
properly construed.
AFFIRMED

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