11-26 666
11-26 666
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty from September 1975 to June 1976.
- Appeal from a December 2009 RO rating decision seeking TDIU on an extraschedular basis prior to January 25, 2010.
- Board hearing held in July 2016; matter remanded in November 2016 for further development.
- In November 2016, VA was notified by the Social Security Administration that the Veteran died earlier that month.
- No substitution had been filed before the Board at the time of the Veteran's death.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TDIU claim can be adjudicated after Veteran's death | Veteran sought TDIU on extraschedular basis prior to 1/25/2010 | VA maintained that Board lacks jurisdiction after claimant's death | Appeal dismissed for lack of jurisdiction because claims do not survive the claimant's death; merits moot |
Key Cases Cited
- Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996) (claims for Veterans benefits do not survive the claimant's death)
- Smith v. Brown, 10 Vet. App. 330 (Vet. App. 1997) (same principle reiterated)
- Landicho v. Brown, 7 Vet. App. 42 (Vet. App. 1994) (mortality of claimant renders appeal moot)
Notes: The Board dismissed the appeal without addressing the merits. An eligible person may request substitution within one year of the Veteran's death by applying to the originating VA office to pursue the claim to completion.