concluding that Court’s decision vacating BVA decision has legal effect of nullifying previous underlying merits adjudication by AOJ (RO) because RO decision was subsumed in BVA decision
How later courts described this case
- concluding that Court’s decision vacating BVA decision has legal effect of nullifying previous underlying merits adjudication by AOJ (RO) because RO decision was subsumed in BVA decision
- explaining that vacatur *336 of Board decision causes vacatur of underlying regional office decision because latter was subsumed by former
- explaining that vacatur of Board decision causes vacatur of underlying regional office decision because latter was subsumed by former
- applying Landicho to vacate Board decision but not directing vacatur of underlying RO decision because it was “subsumed” in vacated Board decision
Written by the judges who cited it.
The opinion
*299 ORDER
PER CURIAM.
On August 10, 1995, the Secretary filed a motion to vacate the Board of Veterans’ Appeals (BVA) decision, dismiss the appeal, and to stay proceedings because the appellant, Domingo M. Yoma, died on July 5, 1995. On September 6, 1995, the appellant’s widow, Mrs. Virginia C. Yoma, filed a motion to continue proceedings in her husband’s appeal.
The Court held in Landicho v. Brown, 7 Vet.App. 42, 44 (1994), that substitution is not permissible in this Court where the appellant is a veteran who dies while the denial by the BVA of the veteran’s claim for disability compensation under chapter 11 of title 38, U.S.Code, is pending here on appeal. Under such circumstances, the Court held that the appropriate remedy is to vacate the BVA decision from which the appeal was taken (and cause the underlying regional office (RO) decision to be vacated as well) and to dismiss the appeal. Id., 7 Vet.App. at 54 . This is done to ensure that the BVA decision and the underlying RO decision will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. Id.
On consideration of the foregoing, it is
ORDERED that the May 12, 1994, BVA decision is vacated. This decision of the Court vacating the BVA decision has the legal effect of nullifying the previous merits adjudication by the RO because this decision was subsumed in the BVA decision. Robinette v. Brown, 8 Vet.App. 69, 80 (1995). Consequently, any subsequent claim by a survivor will be subject to de novo adjudication of any survivor’s claims. It is further
ORDERED that this appeal is DISMISSED.