Citation Nr: 20028898
Decision Date: 04/24/20	Archive Date: 04/24/20

DOCKET NO. 09-41 160
DATE: April 24, 2020

ORDER

Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine from February 20, 2009 to April 8, 2014 is dismissed.

Entitlement to a rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine since April 9, 2014 is dismissed.

FINDING OF FACT

The Veteran died in August 2019.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board of Veterans’ Appeals 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 February 1991 to April 1992.

The Board denied these claims in an April 2019 decision, which was appealed to the United States Court of Appeals for Veterans Claims (Court).  Unfortunately, the Veteran passed away in August 2019.  As a result of the Veteran’s death the Court vacated the April 2019 Board decision.  

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 Veteran 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.  38 C.F.R. § 3.1010(b).

 

 

Nathan Kroes

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Gonzalez, Associate 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.