Background of the Case
The Veteran served in the United States Army from April 1968 to April 1971, including service in Vietnam. He was granted service connection for a low back disability at 10% by the Regional Office in May 1971. He then filed for an increased rating for his low back disability in May 2006. He was granted an increased rating of 20% effective June 28, 2015. The Veteran then appealed for an increased rating prior to June 2015. In March 2016, the Board of Veterans’ Appeals granted an increased rating of 20% effective October 2013, and denied an increased rating prior to that date, and a rating in excess of 20% from that date.
CCK appealed the Veteran’s March 2016 Board decision to the Court of Appeals for Veterans Claims. CCK argued that the Board relied on an inadequate VA examination when it denied the Veteran an increased rating prior to October 2013.
CCK Successful at Court
The Court agreed with CCK’s argument that the Board relied on an inadequate examination when it denied the Veteran an increased rating. The Court vacated the Board’s decision and remanded the case back to the Board for a new decision.
However, the Veteran passed away before the Board was notified of the Court’s decision. The Court then revoked their favorable decision.
CCK Substitutes Veteran’s Sister-in-Law into Appeal
The Veteran did not have any dependents that could be substituted into his Court appeal and continue his case. However, he did have a sister-in-law who paid for his funeral costs. CCK moved to substitute the Veteran’s sister-in-law into the case in order to continue the Veteran’s appeal.
In order to be substituted into the Veteran’s case, the Veteran’s sister-in-law had to file an application for burial benefits at the VA Regional Office. VA argued that the Veteran’s sister-in-law was not eligible to be substituted into the case, and the Court denied CCK’s motion and dismissed the appeal. However, CCK filed a Motion for Reconsideration.
The Veteran’s sister-in-law filed an application for burial benefits at the VA Regional Office and CCK submitted an affidavit of the sister-in-law in support of substitution. The Court ordered that CCK and VA provide a status on the sister-in-law’s application for burial benefits. After the sister-in-law filed two applications, CCK went to the Providence Regional Office to obtain proof that her application was pending in the VA system.
Following receipt of the proof that she had an application pending at the Regional Office, the Court granted the motion and reinstated the favorable decision they had revoked upon the Veteran’s death.
Read the Court’s decision on substitution here.