Young v. Shinseki

ORDER

PER CURIAM.

For the reasons set forth below, this appeal is hereby dismissed as moot.

Russell Young’s appeal alleged procedural error by the Department of Veterans Affairs (“VA”) based essentially on Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). Mr. Young contended that the VA had promised him a new medical examination but did not provide one to him, or give him notice that one would not be provided, before his claim seeking service connection for his injuries was finally denied. Mr. Young sought relief under Bair that he be given a new medical examination, or at least adequate notice that one would not be provided so as to afford Mr. Young a meaningful opportunity to respond.

On August 14, 2011, after oral argument but before this court could issue its decision, Mr. Young’s counsel informed the court that Mr. Young had passed away. To the extent that Mr. Young could have ultimately prevailed in establishing a service connection, his relief now would be limited to accrued benefits, defined by statute as “those [benefits] based on evidence in the file at [the] date [of the veteran’s] death ... and due and unpaid.” 38 U.S.C. § 5121(a). Our review of the record shows that the Board of Veterans’ Appeals and the Veterans Court did not fail to consider any evidence already in Mr. Young’s file in denying his claim, and we lack jurisdiction to review factual findings and weighing of the evidence. 38 U.S.C. § 7292(d)(1),(2). The case is therefore moot.

June Young’s pending motion to substitute as Mr. Young’s widow pursuant to 38 U.S.C. § 5121A is therefore also dismissed as moot.

COSTS

No costs.