Citation Nr: A20007329
Decision Date: 04/30/20	Archive Date: 04/30/20

DOCKET NO. 191002-35316
DATE: April 30, 2020

ORDER

Entitlement to service connection for bilateral pes planus is dismissed.

Entitlement to service connection for pleural effusion is dismissed.

FINDING OF FACT

In April 2020, the Board was notified that the Veteran died in December 2019, during the pendency of his appeal.

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 March 1966 to January 1970.

This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2019 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.  In that decision, the RO denied entitlement to service connection for bilateral pes planus and pleural effusion.

In October 2019, the Veteran submitted a timely Notice of Disagreement (NOD) and selected the Direct Review lane.

Unfortunately, the Veteran died during the pendency of the appeal.  In April 2020, VA received notification from the Social Security Administration (SSA) that the Veteran died in December 2019, before the Board promulgated a decision in 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 Veteran and must be dismissed for lack of jurisdiction.  8 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

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

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Small, Law Clerk

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.