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5.3. Substitution

When an appellant dies during the pendency of an appeal for VA disability compensation, the appropriate remedy is to vacate the appealed Board decision and dismiss the appeal unless there has been an appropriate substitution by a qualified accrued-benefits claimant.  See Padgett v. Nicholson, 473 F.3d 1364, 1366 (Fed. Cir. 2007) (Court not obligated to withdraw decision when party died before decision issued, but after case submitted to Court); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 54 (1994); see also Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (per curiam order) (veteran's chapter 11 disability benefits claim survives the death of the veteran, not for the purpose of providing VA benefits to a veteran, but for purpose of furthering the claim of an eligible accrued-benefits claimant).  Congress indicated in enacting section 5121A, that a veteran's disability benefits claim does not die with the veteran and the accrued-benefits claim by a survivor no longer represents a separate interest that must be separately pursued apart from the veteran's underlying claim for benefits.  Breedlove v. Shinseki, 24 Vet. App. 7, 19-20 (2010).  Since Congress has now created an avenue for an accrued-benefits claimant to continue to pursue a veteran's claim within VA after the veteran's death, the Court will consider substitution, if requested, in all cases pending before the Court regardless of the stage of briefing at the time of a veteran's death.  

An eligible accrued-benefits claimant is "adversely affected" by the appealed Board decision denying a veteran's claim for benefits and has standing to pursue substitution on the veteran's claim because he or she is affected by the VA adjudications on the veteran's claim in the same way the veteran was affected at the time he filed his Notice of Appeal.  38 U.S.C. § 7266(a) ("In order to obtain review by [this Court] of a final decision of the Board ..., a person adversely affected by such decision shall file a notice of appeal").  Breedlove v. Shinseki, 24 Vet. App. 7, 20 (2010).  Nothing in the Court's rules or in controlling caselaw suggests that substitution is limited to only one person.  See U.S. Vet. App. R. 43(a)(2) ("If a party dies ... while a proceeding is pending in the Court, the personal representative of the deceased party's estate or any other appropriate person may, to the extent permitted by law, be substituted as a party on motion by such person."); Cohen, 8 Vet. App. 5, 7 (1995) ("Substitution of the estate or an appropriate survivor is the best method of proceeding in a case such as this, as it has been held that the attorney may not directly claim the fee award.").

If, when a veteran has died while an appeal is pending here, no one seeks substitution or the person seeking substitution is not an eligible accrued-benefits claimant, then Board vacatur and dismissal of the appeal is the appropriate action.  See Munsingwear, 340 U.S. 36, 41, (1950); see also Padgett, 473 F.3d at 1370 ("Absent substitution, we would face the scenario contemplated by Munsingwear."); 38 U.S.C. § 5121(c) ("Applications for accrued benefits must be filed within one year after the date of death.").  This preserves the right of an accrued-benefits claimant to file a claim and have it processed de novo.  Breedlove v. Shinseki, 24 Vet. App. 7, 21 (2010).

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