Citation Nr: 21001625
Decision Date: 01/11/21	Archive Date: 01/11/21

DOCKET NO. 17-36 673
DATE: January 11, 2021

ORDER

The Veteran’s appeal as to the issue of entitlement to service connection for bilateral hearing loss is dismissed.

The Veteran’s appeal as to the issue of entitlement to service connection for tinnitus is dismissed.

FINDING OF FACT

In December 2020, 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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Marine Corps from November 1967 to August 1970, including service in the Republic of Vietnam.  He was the recipient of the Combat Action Ribbon.  He died in December 2020.  

This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for bilateral hearing loss and tinnitus.

Unfortunately, as set forth above, the Veteran died 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 the death of the Veteran 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 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....”  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, in this case the Regional Office in Huntington, West Virginia.  38 C.F.R. § 3.1010(b).

 

 

K. Conner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Behlen, 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.