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Phillips v. Shinseki

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Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and SPENCER, Chief District Judge. *fn1

These two appeals raise questions about the procedures that apply when a veteran who is pursuing a claim for disability benefits dies while his claim is pending. In both cases, the veteran-claimant died while his claim was on appeal before the Court of Appeals for Veterans Claims (“the Veterans Court”). In both cases, the question before us is whether the daughters of the deceased veteran-claimants may be substituted for their fathers so that they can pursue either an “accrued-benefits claim” under 38 U.S.C. § 5121 or a claim for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. In both cases, the Veterans Court refused to permit substitution, dismissed the veterans’ appeals, and denied the EAJA claims.

Appeal No. 2008-7142 Nathan Davis, a United States Army veteran, filed a claim in 1997 seeking service connection for post-traumatic stress disorder. After multiple proceedings before a regional office of the Department of Veterans Affairs (“DVA”) and the Board of Veterans’ Appeals, the Board ultimately denied his claim in 2005. When Mr. Davis appealed to the Veterans Court, the Secretary of Veterans Affairs conceded that the Board’s decision was erroneous in two respects. First, the Secretary conceded that the Board had failed to ensure that the regional office complied with an earlier remand order from the Board. In that order, the Board had directed the regional office to attempt to verify information provided by Mr. Davis as to an in-service stressor. Second, the Secretary conceded that the Board had mistakenly relied on a June 2004 medical examination that was inadequate for rating purposes.

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