Citation Nr: 20009780
Decision Date: 02/06/20	Archive Date: 02/05/20

DOCKET NO. 17-04 104
DATE: February 6, 2020

ORDER

The Veteran’s petition to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) based on new and material evidence is dismissed.

FINDING OF FACT

In December 2019, the Department of Veterans Affairs (VA) was notified of the Veteran’s death in the same month.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for whether new and material evidence has been received to reopen the claim of service connection for PTSD 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 May 1974 to March 1977. 

This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).  In his substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge.  No further action is required given that this case is being dismissed due to the death of the Veteran.

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, Veterans’ 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.

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 Veteran 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).

This appeal must be dismissed due to the death of the Veteran.  However, the Board notes that on January 9, 2020, VA received a Request for Substitution of Claimant Upon Death of Claimant and an Application for Dependency and Indemnity Compensation, Survivor Pension and/or Accrued Benefits from the Veteran’s spouse.  The RO must make the initial substitution eligibility determination and provide written notice of that decision. 38 C.F.R. § 3.1010(e)(1).  As such, the motion for Substitution, as well the claim for Dependency and Indemnity Compensation, are REFERRED to the Agency of Original Jurisdiction for appropriate action.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A-L Evans, 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.