Citation Nr: 21000317
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 15-31 138A
DATE: January 5, 2021

ORDER

The issue of the propriety of the reduction of the evaluation for service-connected total knee replacement, left knee, to 30 percent disabling is dismissed.

The issue of entitlement to an effective date prior to January 21, 2015, for the grant of service connection for degenerative disc disease, lumbar spine, post laminectomy syndrome (claimed as lower back condition) associated with total right knee replacement is dismissed.

FINDING OF FACT

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) (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1972 to August 1976.

In August 2018, the Veteran and his spouse testified under oath at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Board notes that a Statement of the Case (SOC) was issued in March 2017 regarding the issue of entitlement to an effective date prior to January 21, 2015 for the granting of service connection for degenerative disc disease, lumbar spine, post laminectomy syndrome as secondary to the service-connected disability of total right knee replacement.  In March 2017, the Veteran submitted a statement referencing a March 2017 SOC.  The Board will accept this correspondence in lieu of a VA Form 9.  Accordingly, the earlier effective date issue is on appeal.

The Board notes that there is a pending request for substitution.  See VA Form 21P-0847, December 2020.

Dismissal

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).

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Foster, 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.