Citation Nr: 20045455
Decision Date: 07/08/20	Archive Date: 07/08/20

DOCKET NO. 12-08 156A
DATE: July 8, 2020

ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for the right elbow is dismissed.

FINDING OF FACT

In March 2016, the Board was notified that the Appellant died in November 2015, before a decision by the Board was issued on this appeal.

CONCLUSION OF LAW

Due to the death of the Appellant, the Board has no jurisdiction to adjudicate the merits of this appeal.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2018); but see 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2018). 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1943 to August 1943.  The Veteran died in November 2015.  

This matter originally came before the Board of Veterans’ Appeals (Board) from a January 2010 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Boston, Massachusetts.  This matter was previously remanded by the Board in April 2015 for further development.  This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c).

The Board notes that the Veteran’s daughter filed a request for substitution in 2016.  See June 2016 VA 21-0847.  However, in January 2020, the RO notified the Veteran’s daughter that her request for substitution was denied, which decision has yet to be appealed.  See January 2020 Correspondence.

Unfortunately, the Appellant died during the pendency of 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.

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 second page of this decision).  38 C.F.R. § 3.1010(b).

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Dougan

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.