Crews v. McDonough

Summary

**Crews v. McDonough, 2023, Fed. Cir.** **Topics:** Veterans benefits; substitution of surviving spouse under 38 U.S.C. § 5121A; clear and unmistakable error (CUE); pending claim. **Holding:** The Federal Circuit affirmed the Veterans Court, holding that a surviving spouse cannot be substituted under § 5121A to raise a CUE claim that the deceased veteran never raised before death. The statute permits substitution only on a claim that was pending at the veteran's death; a CUE allegation challenging a prior final decision not previously contested by the veteran constitutes a new claim, not a theory of entitlement within a pending claim.

Holdings

1. Section 5121A only allows a survivor to substitute as a claimant for a previously raised CUE claim; it does not allow a survivor to bring a CUE claim that was not previously raised.

Questions Presented

1. Whether a surviving spouse may be substituted under 38 U.S.C. § 5121A to raise a claim of clear and unmistakable error (CUE) that the deceased veteran had not raised before death.

Disposition

affirmed