Citation Nr: 21001462
Decision Date: 01/08/21	Archive Date: 01/08/21

DOCKET NO. 17-61 032
DATE: January 8, 2021

ORDER

1. Entitlement to service connection for a left knee disability is dismissed.

2. Entitlement to service connection for a left hip disability is dismissed.

3. Entitlement to service connection for congestive heart failure is dismissed.

4. Entitlement to an increased disability rating in excess of 40 percent for lumbar spine stenosis is dismissed.

5. Entitlement to an increased disability rating in excess of 20 percent for left lower extremity radiculopathy is dismissed.

6. Entitlement to an increased disability rating in excess of 20 percent for right lower extremity radiculopathy is dismissed.

7. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) is dismissed.

8. Entitlement to an earlier effective date than June 3, 2016 for the grant of service connection for left lower extremity radiculopathy is dismissed.

9. Entitlement to an earlier effective date than June 3, 2016 for the grant of service connection for right lower extremity radiculopathy is dismissed.

FINDING OF FACT

During the pendency of the appeal, and prior to the promulgation of a decision in the matter, the Board was notified that the Veteran died in December 2020.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from May 1974 to September 1985 and from September 1990 to April 1992.

Unfortunately, the Veteran died in December 2020, during the pendency of the appeal.  As a matter of law, appellants’ claims do not survive their deaths.  Zevalin 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) (2012); 38 C.F.R. § 20.1302 (2019).

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 (2019).  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 Veteran’s death.  38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2019).  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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Chad Johnson, 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.