Citation Nr: 20004232
Decision Date: 01/17/20	Archive Date: 01/16/20

DOCKET NO. 17-60 366
DATE: January 17, 2020

ORDER

The appeal for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed.

FINDING OF FACT

In December 2019, the Board received confirmation that the claimant passed away in November 2019.

CONCLUSION OF LAW

Due to the death of the claimant, the Board has no jurisdiction to adjudicate        the merits of the claim for entitlement to a TDIU.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The claimant served on active duty from July 1974 to July 1977, with additional reserve service.

This matter comes before the Board of Veterans’ Appeals (Board) from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

1. Entitlement to a TDIU

Unfortunately, the claimant passed away 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 claimant and must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

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 claimant’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 RO. 38 C.F.R. § 3.1010(b).

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. C. Birder

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 This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.