Citation Nr: 20036765
Decision Date: 05/28/20	Archive Date: 05/28/20

DOCKET NO. 15-17 824
DATE: May 28, 2020

ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for Hepatitis C is dismissed.

FINDING OF FACT

In May 2020, the agency of original jurisdiction (AOJ) was notified that the Veteran died in April 2020.

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. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1969 to December 1971. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In August 2015, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing.  A copy of the hearing transcript is of record. 

This matter was remanded by the Board in January 2018 for further development.

In correspondence dated April 2020, the Veteran was notified that the VLJ who presided over his August 2015 Board hearing was no longer employed at the Board, and he was offered the opportunity to be scheduled for another hearing.  Applicable law and regulations required that the VLJ who conducted a hearing in the legacy appeals system participate in any decision made on that appeal.  38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2018).  In April 2020, the Veteran indicated that he did not wish to appear for another Board hearing.  

Entitlement to compensation under 38 U.S.C. § 1151 for Hepatitis C 

Unfortunately, the Veteran died 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).  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 Veteran’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).

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	H. Styer, 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.