Citation Nr: 21000082
Decision Date: 01/04/21	Archive Date: 01/04/21

DOCKET NO. 10-22 495
DATE: January 4, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In December 2020, the Board was notified via a Social Security Administration record that the appellant died in November 2020.

CONCLUSION OF LAW

Due to the death of the appellant, 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 October 1975 to January 1986.  He served honorably in the U.S. Army, including service in Germany.  The Board is thankful for the Veteran’s service to our country.

The Board previously remanded this case in May 2017 and February 2018 for additional development.  Upon consideration of additional evidence obtained pursuant to the February 2018 Board remand, an interim January 2019 rating decision granted service connection for PTSD, tinnitus, and a left eyelid scar and assigned ratings of 30, 10, and 0 percent, respectively, from July 27, 2007, the date of claim.  As this represents a complete grant of the Veteran’s claim of these issues, they are no longer on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The issues of entitlement to service connection for a low back disability, residuals of a cold injury to the hands and feet, bilateral hearing loss, a left shoulder disorder, left eye disorder other than eyelid scar, and an ulcer remained on appeal.

Unfortunately, the appellant 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); 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.  38 C.F.R. § 3.1010(b).

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Vashaw, 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.