16-12 917
16-12 917
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served on active duty July 1952–July 1953 and appealed a September 2015 RO denial of service connection for myelodysplastic syndrome (MDS) with anemia, hypertension, congestive heart failure, atrial fibrillation, and enlarged spleen.
- Appeal was before the Board of Veterans' Appeals and was advanced on the docket by the Veteran.
- The Veteran died in July 2016 while the appeal was pending; the Board was notified in August 2016.
- The Veteran's wife filed a claim for substitution on August 3, 2016.
- The Board determined that the Veteran's death rendered the appeal moot and that it lacked jurisdiction to adjudicate the merits of the pending appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for MDS (including benzene exposure) | Veteran sought service connection for MDS and related conditions | RO denied service connection; VA took position that appeal pending but did not decide merits after death | Appeal dismissed as moot due to Veteran's death; Board lacks jurisdiction to adjudicate merits |
| Service connection for hypertension (including benzene exposure) | Veteran sought service connection | RO denied; same procedural posture | Dismissed for lack of jurisdiction because of Veteran's death |
| Service connection for congestive heart failure (secondary to MDS) | Claimed secondary to MDS | RO denied; pending appeal | Dismissed as moot; Board no jurisdiction |
| Service connection for atrial fibrillation and enlarged spleen (secondary to MDS) | Claimed secondary to MDS | RO denied; pending appeal | Dismissed as moot; Board no jurisdiction |
Key Cases Cited
- Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir.) (claims do not survive appellant's death)
- Smith v. Brown, 10 Vet. App. 330 (Vet. App.) (death of appellant renders appeal moot)
- Landicho v. Brown, 7 Vet. App. 42 (Vet. App.) (same principle that claims do not survive death)