Citation Nr: 21001697
Decision Date: 01/11/21	Archive Date: 01/11/21

DOCKET NO. 15-44 276
DATE: January 11, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

The Department of Veterans Affairs (VA) has been 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 the appeal at this time.  38 U.S.C. §§ 5121A, 7104(a) (2012); 38 C.F.R. §§ 3.1010, 20.1106, 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from April 1972 to April 1974.

In the December 2015 VA Form 9 the Veteran requested a Travel Board hearing before a Veterans Law Judge, and such hearing was scheduled to be held in June 2020.  In a June 2020 correspondence the Veteran reported he appeared for the hearing but the building was closed and requested a new hearing date.  In November 2020, the Veteran requested a video conference hearing before the Board, and such hearing was scheduled to be held in January 2021.

1. Entitlement to service connection for bilateral hearing loss

2. Entitlement to service connection for tinnitus

3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD)

Before reaching the merits of the claim for PTSD, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  Therefore, the Board has recharacterized this issue accordingly.

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans’ claims do not survive their deaths.  Smith v. Brown, 10 Vet. App. 330, 333-34 (1997).  Thus, the claims on appeal for entitlement to service connection for bilateral hearing loss and tinnitus as well as whether new and material evidence has been received to reopen a previously denied claim of service connection for PTSD have 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 the Veteran.  38 C.F.R. § 20.1106.  

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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 Veteran for purposes of processing any 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. § 5121A; 38 C.F.R. § 3.1010(b).

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Carter, 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.