Citation Nr: 18151661
Decision Date: 11/20/18	Archive Date: 11/19/18

DOCKET NO. 16-16 844
DATE:	November 20, 2018
ORDER
The appeal seeking an increased rating for nonspecific jejunitis with mild malabsorption syndrome is dismissed.


FINDING OF FACT
Prior to a promulgation of a Board decision on this appeal, the Board was notified that the Veteran died in January 2018.


CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1956 to January 1968.  

In October 2017, the Board denied an increased rating for nonspecific jejunitis with mild malabsorption syndrome.  The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court) in November 2017.  In an April 2018 order, the Court endorsed a joint motion for remand of the claim to the Board.  Therefore, the case returns to the Board’s jurisdiction.  Unfortunately however, the Veteran died in January 2018 during the pendency of his appeal to the Court.  

As a matter of law, appellants’ claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996).  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).

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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).  Moreover, 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; see 38 C.F.R. § 3.1010(a).  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).
 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brad Farrell, Associate Counsel