Citation Nr: 1805312	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  15-21 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an initial compensable evaluation for chronic sinusitis.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Y. Lee, Associate Counsel



INTRODUCTION

The Veteran had honorable active duty service with the United States Marine Corps from March 1975 to November 1976, and from September 1980 to September 1982.  Unfortunately, in October 2017, VA was notified of his death.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

The Board notes that in his substantive appeal, the Veteran requested a hearing.  Unfortunately, the Veteran passed away before he could be afforded a hearing before the Board.  Given the current posture of the case, i.e., the dismissal of the appeal due to the Veteran's death, no further action is necessary with regard to conducting a hearing.  


FINDING OF FACT

On October 30, 2017, the Board was notified by the Department of Veterans Affairs (VA) Regional Office, Muskogee, Oklahoma, that the appellant passed away on October 28, 2017.  


CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant passed away during the pendency of the appeal.  As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2017).

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106 (2017).  

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant's death.  See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(b) (2017).  A person eligible for substitution includes "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...."  38 U.S.C.A. § 5121A (West 2014); see 38 C.F.R. § 3.1010(a) (2017).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated (listed on the first page of this decision).  38 C.F.R. § 3.1010(b) (2017). 


ORDER

Due to the passing of the Veteran, the appeal is dismissed.




		
B. MULLINS
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs