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14 Vet. App. 297

Smith v. Principi

United States Court of Appeals for Veterans Claims · decided 2001-02-22

Applies 38 U.S.C. § 5121

Relies on Robinette v. Brown · Zevalkink v. Brown · Vda de Landicho v. Brown

Decided 2001-02-22

¶1ORDER

PER CURIAM.

¶2The appellant appealed a July 16, 1999, Board of Veterans’ Appeals (Board) decision that denied service connection for residuals of malignant melanoma of the left foot. On December 4, 2000, the Court issued its opinion in the instant appeal. The Court’s judgment was entered on December 28, 2000. On January 3, 2001, counsel for the appellant notified the Court of the appellant’s death. Counsel has provided a statement indicating that the appellant died on September 28, 2000.

¶3The Court held in Landicho v. Brown, 7 Vet.App. 42, 46-49 (1994), that substitution by a party claiming accrued benefits under 38 U.S.C. § 5121(a) is not permissible in this Court where the appellant is a veteran who dies while the denial by the Board of the veteran’s claim for disability compensation under chapter 11. of title 38, U.S.Code, is pending here on appeal. See also Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996) (expressly agreeing with this Court’s Landichoholding). Under such circumstances, the Court held that the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. Landicho, 7 Vet.App. at 54. This ensures that the Board decision and the underlying regional office (RO) decision(s) will have no preclusive effect in the adjudication of *298any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because this appeal has become moot by virtue of the death of the appellant, the appeal will be dismissed. See Landicho, 7 Vet.App. at 53-54.

¶4Upon consideration of the foregoing, it is

¶5ORDERED that the Court’s judgment is recalled. It is further

¶6ORDERED that the Court’s December 4, 2000, opinion is withdrawn. It is further

¶7ORDERED that the July 16, 1999, Board decision is VACATED. It is further

¶8ORDERED that this appeal is DISMISSED for lack of jurisdiction.

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