Citation Nr: 19128805
Decision Date: 04/12/19	Archive Date: 04/12/19

DOCKET NO. 08-19 423
DATE:	April 12, 2019

ORDER

The appeal for the issue of whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disorder is dismissed. 

The appeal for the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. 

FINDINGS OF FACT

1.  In April 2018, the Board denied the issues of whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disorder and entitlement to service connection for PTSD.

2.  The Veteran appealed the Board’s April 2018 decision to the United States Court of Appeals for Veterans Claims (Court).  

3.  Prior to the promulgation of a decision, the Veteran’s representative informed the Court that the Veteran had died in July 2018.  

4.  In October 2018, the Court vacated the Board’s April 2018 decision and dismissed the appeal.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1963 to December 1966. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision.

In April 2018, the Board denied service connection for PTSD and determined that new and material evidence had not been received to reopen a claim for service connection for a lumbar spine disorder.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In an October 2018 Order, the Court vacated the Board’s April 2018 decision and dismissed the appeal due to his death.  The case was subsequently returned to the Board.

Unfortunately, the Veteran died 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 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 (2018).  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 Veteran’s death.  See 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 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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).

 

J.W. ZISSIMOS

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	M. Wulff, Associate Counsel