Citation Nr: 19133232
Decision Date: 04/30/19	Archive Date: 04/29/19

DOCKET NO. 16-27 190
DATE:	April 30, 2019

ORDER

Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is dismissed.  

FINDING OF FACT

Prior to the promulgation of a decision in the appeal, the appellant died in September 2018.   

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the claim of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II.  38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.1302 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from March 1957 to June 1961, October 1961 to December 1965, and September 1966 to October 1978.    

This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

Unfortunately, the Veteran died during the pendency of the appeal.  The Board has reviewed the claims file and has found no application for substitution and no decision by the RO regarding any application for substitution. 

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); 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 (2018).

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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; 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.

 

ROBERT C. SCHARNBERGER

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	C. O’Donnell, 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.