UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 96-1517

JACK W. MORTON, APPELLANT,

 V.

HERSHEL W. GOBER,

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

Before FARLEY, HOLDAWAY, and GREENE, Judges

ORDER

On July 14, 1999, this Court affirmed the September 6, 1996, decision of the Board of

Veterans' Appeals (BVA or Board) which determined that the appellant's claims for service

connection for hearing loss, varicose veins, a back disorder other than scoliosis of the thoracolumbar

vertebrae, and shortening or lengthening of the right upper extremity were not well grounded.

Morton v. West, 12 Vet.App. 477 (1999), en banc review denied, 12 Vet.App. 205. In doing so, the

Court held that pursuant to 38 U.S.C. § 5107, "absent the submission and establishment of a wellgrounded claim, the Secretary cannot undertake to assist a veteran in developing the facts pertinent

to his or her claim." Morton, 12 Vet.App. at 486. The veteran appealed to the U.S. Court of Appeals

for the Federal Circuit (Federal Circuit) (Morton v. Gober, No. 99-7191). While his appeal was

pending with the Federal Circuit, Mr. Morton passed away. Mr. Morton's attorney filed a motion

for vacatur and the Secretary, opposing vacatur, filed a motion to dismiss. On August 17, 2000, the

Federal Circuit denied the Secretary's motion to dismiss the appeal, denied the motion for vacatur,

and remanded the matter to this Court to consider the motion for vacatur. For the reasons that

follow, the Court will withdraw its July 14, 1999, opinion, vacate the September 6, 1996, decision

of the Board, and dismiss the appeal. 

The Federal Circuit held in its remand order that when determining whether a vacatur is

appropriate, an appellate court must consider whether any fault could be attributed to the appellant

in mooting the appeal and whether it is in the public interest to vacate the judgment. Morton v.

Gober, No. 99-7191 (Fed. Cir. Aug. 17, 2000) (citing U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 36 (1950), and Valero Terrestrial Corp. v. Paige, 211 F.3d 112 (4th Cir.

2000)). After noting that there is no question that the appeal was mooted by circumstances beyond

the appellant's control, the Federal Circuit noted that, because this Court has entered judgment in

numerous cases on the basis of our decision in Morton and the Federal Circuit itself has stayed cases

pending its disposition of Mr. Morton's appeal, "the question exists whether vacatur serves the public
2

interest." Id. Concluding that "the proper course is to have the Court of Appeals for Veterans

Claims determine whether vacatur is appropriate," the Federal Circuit remanded the request for

vacatur to this Court. But cf. Forshey v. Gober, __F.3d __, No. 99-7064 (Fed. Cir. Sept. 20, 2000).

Accordingly, we turn now to the appropriateness of vacatur under the circumstances presented by

this appeal.

In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), the Federal Circuit held that the Secretary

has no duty to assist a claimant prior to the submission of a well-grounded claim. In Morton, this

Court resolved the issue of whether the Secretary, although he has no statutory obligation absent a

well-grounded claim, may undertake such an obligation. Our answer in Morton was: no. That

decision was based upon our interpretation of 38 U.S.C. § 5107, and the Federal Circuit appears to

be of the same view. See Nolen v. Gober, __ F.3d __, __, slip op. at 6, No. 99-7173 (Fed. Cir. 1999)

("Absent a well[-]grounded claim, there is nothing further the [Department of Veterans Affairs] need

or can do." (emphasis added)).

Moreover, there is more at stake than just the "public interest"; there are the interests of the

heirs of Mr. Morton. Consistent with the "strongly and uniquely pro-claimant" character of veterans

benefits statutes (Nolen, __ F.3d at __, slip op. at 8 (quoting Hodge v. West, 155 F.3d 1356, 1362

(Fed. Cir. 1998))), we held in Landicho v. Brown that when a veteran dies while an appeal of the

denial by the Board of his or her claim for disability compensation is pending, the appropriate

remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal.

7 Vet.App. 42, 54 (1994); see also Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996).

Such action ensures that the Board decision and the underlying regional office (RO) decision(s) will

have no preclusive effect in the adjudication of any future 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) (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).

For these reasons, we conclude on remand that vacatur is appropriate under these

circumstances. Accordingly, it is

ORDERED that the Court's August 5, 1999, judgment is recalled and the Court's July 14,

1999, opinion is withdrawn. It is further

ORDERED that the August 31, 1998, Board decision is VACATED. It is further

ORDERED that this appeal is DISMISSED for lack of jurisdiction.

DATED: November 6, 2000 PER CURIAM.