Citation Nr: 20005331
Decision Date: 01/23/20	Archive Date: 01/22/20

DOCKET NO. 12-20 375
DATE: January 23, 2020

ORDER

The appeal for entitlement to service connection for a low back disability, to include as secondary to service-connected disability, is dismissed.

FINDING OF FACT

In September 2019, the Board received a VA Form 27-0820a, Report of First Notice of Death, which reflected that the appellant died in September 2019.

CONCLUSION OF LAW

Due to the death of the appellant, 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 appellant had active service from July 1977 to July 1981. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 

This matter was previously before the Board in May 2017 and January 2018, when it was remanded for further development.  It now returns for appellate review. 

In August 2019, the appellant requested a copy of his claims file which was not provided to him prior to his death.  However, no further action is required as to this matter, or any other due process deficiency, if such exists, given that this case is being dismissed due to the death of the appellant.

Unfortunately, the appellant died during the pendency of the appeal.  In this regard, in September 2019, the Board received VA Form 27-0820a, Report of First Notice of Death, which reflected that the appellant died in September 2019.  Thereafter, a January 2020 response to an inquiry to the Social Security Administration also reflected the appellant died in September 2019.  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).  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).

 

 

U. R. POWELL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Espinoza, 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.