Citation Nr: 21001235 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 03-32 266A DATE: January 7, 2021 ORDER The April 25, 2006 remand addressing the issue of entitlement to payment or reimbursement of unauthorized medical expenses incurred at Community Hospital in Syracuse, New York on April 7, 2003 is vacated. The appeal with respect to entitlement to payment or reimbursement of unauthorized medical expenses incurred at Community Hospital in Syracuse, New York on April 7, 2003 is dismissed. FINDINGS OF FACT 1. The Board of Veterans’ Appeals (Board) issued a remand in this case on April 25, 2006. 2. According to information obtained from the Social Security Administration, the appellant died in October 2004, while the current appeal was pending and prior to the issuance of the April 2006 remand. CONCLUSIONS OF LAW 1. The criteria for vacating the Board’s April 25, 2006 remand have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1943 to October 1945. He died in April 2003. The appellant was his widow. This matter comes to the Board on appeal from a September 2003 determination issued by the Department of Veterans Affairs (VA) Medical Center in Canandaigua, New York. 1. Vacatur. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. In this case, on April 25, 2006, the Board issued a remand in this appeal requesting additional development. Unfortunately, unbeknownst to the Board at that time, the appellant had died in October 2004, before the remand was issued. The Board was not notified of the appellant’s death until January 2021. The appellant’s death preceded the April 2006 remand. As explained below, a claim does not survive a claimant’s death. 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). Because the claim did not survive the appellant’s death, the Board did not have jurisdiction to consider the merits of the claim in April 2006. As such, the April 25, 2006 remand must be vacated. 2. Dismissal. As noted above, the appellant died during the pendency of the appeal. As a matter of law, appellants’ claims do not survive their deaths. Zevalkink, 102 F.3d at 1243-44; Smith, 10 Vet. App. at 333-34; Landicho, 7 Vet. App. at 47. 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. 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). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.