Citation Nr: 21000269
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 19-27 158
DATE: January 5, 2021

ORDER

The appeal for service connection for ischemic heart disease, including as due to herbicide exposure, is dismissed.

The appeal for service connection for acute spasmodic torticollis is dismissed.

The appeal for service connection for chronic concussion syndrome is dismissed.

The appeal for service connection for polycythemia is dismissed.

The appeal for service connection for stroke secondary to polycythemia is dismissed.

FINDING OF FACT

On November 24, 2020, the Board of Veterans’ Appeals (Board) was notified by the Department of Veterans Affairs (VA) Regional Office 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 had active service from January 1963 to January 1966.

This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in July 2018.

Service Connection

1. Service connection for ischemic heart disease, including as due to herbicide exposure 

2. Service connection for acute spasmodic torticollis

3. Service connection for chronic concussion syndrome

4. Service connection for polycythemia

5. Service connection for stroke secondary to polycythemia

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.  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 appellant’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).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. L. Wasser, 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.