Citation Nr: 20028066
Decision Date: 04/22/20	Archive Date: 04/22/20

DOCKET NO. 17-56 323
DATE: April 22, 2020

ORDER

Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine and lumbar strain is dismissed.

Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity is dismissed. 

FINDING OF FACT

On March 24, 2020, the Board was notified that the Veteran died in March 2020, during the pendency of the appeal.

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. § 7105; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1970 to May 1972.  

These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Regional Office (RO) rating decision that granted entitlement to service connection degenerative disc disease of the lumbar spine and lumbar strain and assigned a 20 percent disability rating effective September 28, 2012.  The RO also granted entitlement to service connection for radiculopathy of the right lower extremity, and assigned a 10 percent disability rating, effective September 28, 2012.  The Veteran timely appealed initial ratings assigned for the service-connected lumbar spine disability and right lower extremity radiculopathy.

Unfortunately, the Veteran died during the pendency of the appeal.  The Veteran’s wife informed the RO and submitted a copy of his death certificate in March 2020 that the Veteran died in March 2020, before the Board promulgated a decision in this 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.  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.  

(Continued on the next page)

 

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).

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Berry, 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.