Citation Nr: 21000185
Decision Date: 01/04/21	Archive Date: 01/04/21

DOCKET NO. 14-40 963
DATE: January 4, 2021

ORDER

Entitlement to service connection for left ear hearing loss disability is dismissed.

Entitlement to service connection for prostate cancer, to include from radiation is dismissed.

Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), depression, anxiety disorder, and post-traumatic stress disorder (PTSD) is dismissed.

Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative joint disease (DJD)/degenerative disc disease (DDD), prior to February 14, 2019, not including a period of temporary total evaluation (100 percent rating), is dismissed.

Entitlement to an initial rating in excess of 40 percent for lumbar spine degenerative joint disease (DJD)/degenerative disc disease (DDD), from February 14, 2019, not including a period of temporary total evaluation (100 percent rating), is dismissed.

Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy, prior to February 14, 2019, is dismissed.

Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy, from February 14, 2019, is dismissed.

FINDING OF FACT

In October 2020, the Agency of Original Jurisdiction was notified that the Veteran died in October 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

Unfortunately, the Veteran 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 Veteran 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.  However, the Board notes we have dismissed evaluating left lower extremity radiculopathy despite it not being explicitly listed as an issue in our May 2018 remand, because identifying neurologic manifestations of the Veteran's service-connected thoracolumbar spine disability, including radiculopathy, was part of our May 2018 remand directives and the Veteran was subsequently granted service connection for left lower extremity radiculopathy.  

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.  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).

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Gregory T. Shannon, 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.