Citation Nr: 20008053
Decision Date: 01/30/20	Archive Date: 01/30/20

DOCKET NO. 07-23 370
DATE: January 30, 2020

ORDER

The appeal is dismissed.

FINDING OF FACT

In January 2020, the Board received notification that the Veteran passed away earlier that month. 

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 Veteran served on active duty from January 1963 to October 1965.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In December 2014, the Board denied the Veteran’s claim for service connection for a cervical spine disability, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court).  In August 2015, the Court granted a Joint Motion for Remand, vacating the portion of the Board’s December 2014 decision denying service connection for a cervical spine disability and remanding it to the Board for readjudication.  The Board remanded the claim for further development in December 2015 and July 2016.  The requested development was completed, and the case has been returned to the Board for further appellate action.

1. Entitlement to service connection for a cervical spine disability

Unfortunately, the Veteran 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 appellant 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 appellant’s death. See 38 U.S.C. § 5121A (2012); 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....”  8 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	C. Banister, 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.