Citation Nr: 20004587
Decision Date: 01/21/20	Archive Date: 01/21/20

DOCKET NO. 17-30 259
DATE: January 21, 2020

ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for headaches is dismissed.

Entitlement to compensation under 38 U.S.C. § 1151 for a head injury is dismissed.

FINDING OF FACT

In October 2019, VA was notified that the Veteran died that same month; in December 2019, a copy of the death certificate was received by VA.

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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Army from February 1967 to February 1969.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision.

In October 2018, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge.  A transcript from that proceeding is associated with the claims file.

1.  Entitlement to compensation under 38 U.S.C. § 1151 for headaches; and entitlement to compensation under 38 U.S.C. § 1151 for a head injury.

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 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. 

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.  38 C.F.R. § 3.1010(b). 

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. 

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GAYLE STROMMEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K.C. Spragins, 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.