Citation Nr: 21001408
Decision Date: 01/08/21	Archive Date: 01/08/21

DOCKET NO. 19-08 015
DATE: January 8, 2021

ORDER

Entitlement to service connection for hearing loss is dismissed. 

Entitlement to service connection for tinnitus is dismissed. 

FINDING OF FACT

In December 2020, the Board was notified of the appellant’s unfortunate death earlier that month. 

CONCLUSION OF LAW

Because of his death, 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 on active duty from October May 1951 to May 1955. 

This appeal to the Board of Veterans’ Appeals (Board) is from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

Unfortunately, the Veteran since has died, in December 2020, during the pendency of this 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 his death and must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

The Veteran was scheduled to testify concerning these claims at a hearing in January 2021, but obviously that hearing will not now occur. However, in dismissing this appeal because of his unfortunate death, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor. 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 these claims to completion. This request must be filed not later than one year after the date of the Veteran’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 claims originated. 38 C.F.R. § 3.1010(b).

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Pak

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.