Citation Nr: 21000805
Decision Date: 01/06/21	Archive Date: 01/06/21

DOCKET NO. 18-22 162
DATE: January 6, 2021

ORDER

The appeal as to the issue of entitlement to Dependency and Indemnity Compensation (DIC) benefits is dismissed.

FINDING OF FACT

In December 2020, while this matter was pending before the Board of Veterans’ Appeals (Board), VA was notified of the appellant’s death.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at the 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 in the United States Army from August 1966 to August 1969.  He died August 2016.  The appellant was his surviving spouse.

This appeal before the Board arose from a February 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied the appellant’s claim for DIC benefits, death pension, and accrued benefits.  The appellant timely disagreed with the RO’s denial of DIC benefits and subsequently perfected an appeal of that issue to the Board.

The Board notes that on her VA Form 9, the appellant requested a Board videoconference hearing before a Veterans Law Judge; however, the appellant died before her requested hearing could be scheduled.

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 appellant.  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; 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 

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should file a request for substitution with the VA office from which the claim(s) originated.  38 C.F.R. § 3.1010(b).

 

 

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Neilson, 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.