Citation Nr: 19192004
Decision Date: 12/06/19	Archive Date: 12/06/19

DOCKET NO. 18-38 378A
DATE: December 6, 2019

ORDER

Entitlement to service connection for diffuse interstitial fibrosis is dismissed.

Entitlement to service connection for fibromyalgia is dismissed.  

FINDING OF FACT

On November 5, 2019, the Board was notified that the appellant died in October 2019.

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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from March 1962 to September 1966.  

This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (AOJ) in Atlanta, Georgia.

Unfortunately, the Veteran died in October 2019 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.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  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.

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.  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  

A person eligible for substitution includes “a living person who would be eligible to receive accrued benefits due to the claimant” under 38 U.S.C. § 5121(a).  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010.  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.  If the agency of original jurisdiction grants the request to substitute, the case will assume its original place on the docket.  38 C.F.R. § 20.1302 (a).  

Here, J.I. filed an application for dependency and indemnity compensation (DIC) and accrued benefits in November 2019.  See November 2019 VA 21-534EZ.  The individual claimed to be the Veteran’s surviving spouse.  Prior to any determination on the merits of the claim, however, the AOJ must first address the threshold question of who may rightfully claim entitlement to DIC and accrued benefits.  The record indicates the AOJ has not yet determined if J.I. has standing to substitute for the Veteran in this capacity.  The AOJ must make this finding before the Board can proceed on the substantive merits of the service connection claims that comprises the current appeal.  Accordingly, because there is not a living appellant with standing to proceed with the appeal, the claim is dismissed.    

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Rademacher, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.