Citation Nr: 21000618
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 16-31 313
DATE: January 5, 2021

ORDER

The appeal of the issue of entitlement to service connection for a back disability is dismissed.

The appeal of the issue of entitlement to service connection for coronary artery disease is dismissed.

The appeal of the issue of entitlement to service connection for hypertension is dismissed.

FINDING OF FACT

On November 25, 2020, the Board of Veterans’ Appeals (Board) was notified that the appellant died in October 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 in the United States Army from July 1956 to July 1958.  The Veteran died in October 2020.

This matter comes before the Board on appeal from a May 2015 rating decision of the  Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

In a June 2017 decision, the Board, in pertinent part, denied the Veteran’s claim of entitlement to service connection for a back disability, coronary artery disease, and hypertension.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In June 2018, pursuant to a Joint Motion for Remand, the Court vacated the June 2017 decision and remanded the matter to the Board for action consistent with the Joint Motion.  The Board remanded the matter to the AOJ in October 2018, July 2019 and August 2020.

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).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Johnson

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.