Citation Nr: 21001483
Decision Date: 01/08/21	Archive Date: 01/08/21

DOCKET NO. 17-46 790
DATE: January 8, 2021

ORDER

Entitlement to a rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood is dismissed.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed.

FINDING OF FACT

On December 21, 2020, the Department of Veterans Affairs (VA) received notice that the Veteran had 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.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from October 1971 to August 1975.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 Rating Decision issued by a VA Regional Office (RO).

Unfortunately, the Veteran died in December 2020 during the pendency of his 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).  Hence, this appeal on the merits has become moot by virtue of the Veteran’s death 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.  

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.  See 38 U.S.C. § 5121; 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.  38 C.F.R. § 3.1010(b).

 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Anthony M. Flamini

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.