These consolidated appeals arose after two veterans died while their appeals were pending before the Veterans Court. In both matters, the Veterans Court had either granted a joint motion for remand or issued a decision favorable to the veteran, but after learning of the deaths the court recalled or withdrew its judgment and mandate, vacated the Board decision, denied substitution, and dismissed the EAJA applications. The Federal Circuit reversed.

On substitution for accrued-benefits purposes, the court applied and reaffirmed Padgett and Hyatt. It explained that where a veteran dies after a case has been fully submitted, substitution may be appropriate if the Veterans Court’s decision has continuing relevance and denying substitution would adversely affect the accrued-benefits claim. In Davis, the favorable Veterans Court decision removed a roadblock to an accrued-benefits claim, so substitution was allowed, with nunc pro tunc treatment as needed.

On EAJA, the court held that an EAJA claim survives the veteran’s death regardless of whether the fee application was filed before death. The court rejected the Veterans Court’s view that only an accrued-benefits claimant could substitute for EAJA purposes. Instead, a proper representative of the estate may pursue the EAJA claim. The court also held that where the case was fully submitted before death, the proper remedy is not to nullify fee eligibility based on the later death, but to preserve the judgment or enter it nunc pro tunc as appropriate.

If a veteran dies after a case has been fully submitted, substitution may be permitted where the decision would otherwise adversely affect an accrued-benefits claim, and an EAJA fee claim survives the veteran’s death and may be pursued by a proper estate representative.

The death of a veteran does not automatically erase appellate benefits consequences. Counsel should consider substitution, accrued-benefits standing, and nunc pro tunc relief to preserve both substantive benefits and EAJA fee recovery.

The decision limits the Veterans Court’s ability to treat a veteran’s death as wiping out a favorable or potentially favorable appellate outcome. It is a practical authority for keeping alive accrued-benefits and EAJA issues when the appeal was already submitted and the government’s position has been resolved.

Incorrectly vacating or dismissing a fully submitted appeal after the veteran’s death without considering substitution or the survival of an EAJA claim.

A veteran dies after the parties have filed a joint motion for remand, or after the Veterans Court has issued a favorable decision but before judgment or mandate. The survivor or estate representative seeks substitution to preserve accrued-benefits rights and EAJA fees.

Use this case to argue for substitution and nunc pro tunc relief when a veteran dies after submission of the appeal, especially where a favorable Veterans Court ruling would materially support an accrued-benefits claim or where EAJA fees are sought by the estate.

Padgett v. Nicholson, Hyatt v. Shinseki, Landicho v. Brown, Zevalkink v. Brown, Haines v. West, Richard v. West