Citation Nr: 18146362
Decision Date: 10/31/18	Archive Date: 10/31/18

DOCKET NO. 16-31 386
DATE:	October 31, 2018
ORDER
The appeal regarding entitlement to an increased rating for spinal stenosis, granted pursuant to 38 U.S.C. § 1151, is dismissed.
The appeal regarding entitlement to an increased rating for right lower extremity radiculopathy, granted pursuant to 38 U.S.C. § 1151, is dismissed.
The appeal regarding entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.
FINDING OF FACT
In September 2016, the Department of Veterans Affairs (VA) was notified that the Veteran died in September 2016.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeals at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1959 to December 1962.
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 Veteran and must be dismissed for lack of jurisdiction.  See 38 U.S.C. § 7104 (a) (2012); 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 notes that the Veteran’s surviving girlfriend has filed a claim for substitution for the claims pending at the time of the Veteran's death.  An October 2017 statement of the case lists January 19, 2017, as a date of substitution under Adjudicative Actions.  However, that is that date the Veteran's Request for Substitution of Claimant Upon Death of Claimant was received by the agency of original jurisdiction (AOJ), but the AOJ has not yet adjudicated the request for substitution, and therefore the Veteran's surviving girlfriend has not been substituted as the appellant for the outstanding issues as of the date of this decision.
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. § 5121A (2012); 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. § 5121A (2012); see 38 C.F.R. § 3.1010 (a) (2017).  
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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.  38 C.F.R. § 3.1010 (b) (2017).
 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Mine, Associate Counsel