Citation Nr: 21001564
Decision Date: 01/08/21	Archive Date: 01/08/21

DOCKET NO. 14-41 361
DATE: January 8, 2021

ORDER

Entitlement to a rating in excess of 70 percent for service-connected mood disorder, not otherwise specified (NOS), is dismissed.

Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, type II, with diabetic retinopathy (hereinafter referred to as DM) is dismissed.

FINDING OF FACT

In November 2020, the Board was notified that the Veteran died.

CONCLUSIONS OF LAW

1. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the claim for a higher rating in excess of 70 percent for service-connected mood disorder. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  

2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the claim for a higher rating in excess of 20 percent for service-connected diabetes mellitus, type II, with diabetic retinopathy. 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 August 1969 to May 1971.

1. Rating the Mood Disorder

2. Rating the DM

In this case, during his lifetime, the Veteran appealed the instant issues. The Veteran died in October 2020 during the pendency of the appeal. The Social Security Administration inquiry verified that the Veteran died in October 2020. 

As a matter of law, appellants’ claims do not survive their deaths. See 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 the death of the Veteran, so must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  

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In reaching this determination, the Board intimates no opinion as to the merits of these appeals or to any derivative claims 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 claims 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.” See 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. See 38 C.F.R. § 3.1010(b).

 

 

J. PARKER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Costantino, 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.