Veterans Court's refusal to permit the daughters of the deceased veteran-claimants to be substituted for their fathers is reversed and remanded where: 1) with respect to the deceased veteran's daughter's accrued benefits claim, assuming she has preserved her rights as an accrued benefits claimant, she is entitled to substitution on her father's claim and to the benefits of the Veterans Court's decision in his favor; and 2) with respect to the claim for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. section 2412, the EAJA claim survives the death of the veteran, regardless of whether the EAJA application was actually filed by the veteran claimant prior to his death.
Appeal from: United States Court of Appeals for Veterans Claims
Decided September 25, 2009
Opinion by Bryson, Circuit Judge.
For Appellant: Eric Alan Shumsky, Sidley Austin LLP
For Appellee: Meredyth Cohen Havasy, United States Department of Justice