Citation Nr: 20004753
Decision Date: 01/21/20	Archive Date: 01/21/20

DOCKET NO. 16-30 511
DATE: January 21, 2020

ORDER

The appeal as to the issues of entitlement to service connection for right and left upper extremity peripheral neuropathy, right and left carpal tunnel syndrome, arthritis of the neck, left shoulder rotator cuff injury, disability of the feet, low back condition; increased rating for diabetes mellitus; entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities; and, entitlement to recognition of D.K. as a helpless child on the basis of permanent incapacity for self-support is dismissed.

FINDING OF FACT

On December 9, 2019, VA was notified that the appellant died in November 2019.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal of entitlement to service connection for right and left upper extremity peripheral neuropathy, right and left carpal tunnel syndrome, arthritis of the neck, left shoulder rotator cuff injury, disability of the feet, low back condition; increased rating for diabetes mellitus; entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities; and, entitlement to recognition of D.K. as a helpless child on the basis of permanent incapacity for self-support at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant died in November 2019 during the pendency of the appeal.  Given such, the Board would be remiss if it did not recognize his outstanding service.  The Veteran, who had active service from February 1968 to February 1974, and received the National Defense Service Medical and Vietnam Service Medal, was clearly a credit to the Army and to his family, and his service to his country is greatly appreciated.

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 section 5121(a) of this title ….”  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a).

(Continued on the next page)

 

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).

 

 

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Barner, 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.