Citation Nr: 21001107
Decision Date: 01/07/21	Archive Date: 01/07/21

DOCKET NO. 16-11 371A
DATE: January 7, 2021

ORDER

Entitlement to service connection for sleep apnea is dismissed.

Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is dismissed.

Entitlement to service connection for a headache disability is dismissed.

FINDINGS OF FACT

In July 2020, VA became aware the Veteran died in July 2020

CONCLUSIONS OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal at this time.  38 U.S.C. § 7104(a) (2018); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April1965 to April 1969 and from May1969 to September 1973.  The rating decision on appeal was issued by the VA Regional office in Chicago, Illinois. 

1. Entitlement to service connection for sleep apnea

2. Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression

3. Entitlement to service connection for a headache disability

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans' claims do not survive their deaths.  Smith v. Brown, 10 Vet. App. 330, 333-34 (1997).  Thus, the claims on appeal have become moot by virtue of the death of the Veteran 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. 

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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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Riordan, 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.