Citation Nr: 20046572
Decision Date: 07/13/20	Archive Date: 07/13/20

DOCKET NO. 15-31 357
DATE: July 13, 2020

ORDER

Entitlement to service connection for tinnitus is dismissed.

FINDING OF FACT

On April 6, 2020, the Department of Veterans Affairs (VA) Regional Office, was notified by the Social Security Administration that the Veteran passed away in March 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 in the United States Army from October 1960 to September 1962, with periods of service in the United States Army Reserve and as a member of the Alabama Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of a VA Regional Office (RO).

The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2018. A transcript of the hearing has been associated with the record.

In an April 2019 Decision, in pertinent part, the Board denied the Veteran’s claim for service connection for tinnitus. In a February 2020 Order, the Court of Appeals for Veterans Claims (the Court) vacated the April 2019 Board decision to the extent that it denied entitlement to service connection for tinnitus, and remanded the case to the Board for adjudication consistent with the terms of the Joint Motion for Partial Remand (JMPR).

In April 2020, VA was notified by the Social Security Administration that the Veteran passed away in March 2020.

Entitlement to service connection for tinnitus

Unfortunately, the Veteran passed away during the pendency of the instant 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 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 Veteran’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). 

 

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Marsh II, 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.