John D. Desbrow v. Anthony J. Principi , 18 Vet. App. 478 ( 2004 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 02-352
JOHN D. DESBROW , SR., APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before STEINBERG, GREENE, and KASOLD, Judges.
ORDER
The appellant, through counsel, appealed a February 19, 2002, Board of Veterans' Appeals
(Board) decision. On May 4, 2004, the Court affirmed the Board's decision. Desbrow v. Principi,
18 Vet.App. 30, 33 (2004) (per curiam order). The Court entered judgment on May 26, 2004. On
July 20, 2004, the appellant's counsel at that time filed with this Court a motion to substitute a party
under Rule 43(a)(2) of this Court's Rules of Practice and Procedure; in his motion, counsel notified
the Court of the appellant's death. On September 13, 2004, the appellant's counsel submitted,
through another counsel, additional notice to the Court; accompanying the notification is a copy of
the appellant's death certificate, which indicates that the appellant died on December 14, 2003, nearly
five months before the Court's decision in this case. Counsel requests that the Court vacate the
underlying Board decision.
The 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 Zevalkink v.
Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996) (expressly agreeing with this Court's Landicho
holding). The Court held that, under such circumstances, 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 any 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.
The Court expresses its concerns that counsel for the appellant did not notify this Court about
the death of his client until seven months thereafter and until more than two months had elapsed after
this Court had issued its May 4, 2004, affirmance. The failure of that counsel to notify this Court
in a timely fashion caused the Court to expend unnecessarily much time and effort in the preparation
of the order that the instant order is withdrawing.
On consideration of the foregoing, it is
ORDERED that the Court's judgment is recalled. It is further
ORDERED that the Court's order of May 4, 2004, is withdrawn. It is further
ORDERED that the February 19, 2002, Board decision is VACATED. It is further
ORDERED that this appeal is DISMISSED for lack of jurisdiction.
DATED: November 16, 2004 PER CURIAM.
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