Citation Nr: 20039906 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 08-14 798 DATE: June 11, 2020 ORDER The May 2020 Board decision remanding the issue of service connection for hearing loss is vacated. The appeal is dismissed. FINDINGS OF FACT 1. On May 20, 2020, the Board issued a decision remanding the Veteran’s claim of service connection for hearing loss. 2. The Veteran died in April 2020, prior to the issuance of a final Board decision. CONCLUSIONS OF LAW 1. Vacatur of the Board’s May 20, 2020 decision is warranted. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. 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; 38 C.F.R. § 20.1302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1943 to February 1946. This matter is before the Board on appeal from a June 2007 rating decision. A July 2009 Board decision denied, in pertinent part, the Veteran’s claim for service connection for bilateral hearing loss. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2010 Joint Motion for Remand (JMR), the parties moved to vacate and remand the portion of the Board’s decision addressing this issue. A Court Order later granted the JMR, vacating and remanding the claim. The Board then remanded the claim for further development in November 2010. In November 2015, the Board denied the claim for bilateral hearing loss. The Veteran appealed the denial. In a December 2016 memorandum decision, the Court held that the November 2015 Board decision failed to properly address whether the Veteran was competent to state that his hearing loss had continued since his military service. Accordingly, the Court vacated and remanded the hearing loss claim back to the Board for adjudication consistent with the memorandum decision. In August 2017, the Board remanded the claim for further development. The Board denied this appeal again in February 2018. The Veteran again appealed to the Board’s decision to the Court. The Court issued a memorandum decision in October 2019. The Court vacated the Board’s February 2018 decision and remanded the matter to the Board for further appellate review consistent with the order. The case was last before the Board in May 2020. At that time, in compliance with the Court’s October 2019 memorandum decision, the Board remanded the claim for further development. Service connection for hearing loss. Unfortunately, the Veteran died during the pendency of the appeal. In May 2020, prior to a Board decision on the matter, a correspondence from the court-appointed guardian of the Veteran’s estate was associated with the claims file that shows the Veteran passed away in April 2020. 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). Due to this timing, the Board will vacate the May 2020 decision as the Veteran had passed away prior to is issuance. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. Moreover, 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 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; 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). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.