Citation Nr: 21001740
Decision Date: 01/11/21	Archive Date: 01/11/21

DOCKET NO. 10-03 793
DATE: January 11, 2021

ORDER

The issue of a rating in excess of 40 percent for a traumatic brain injury (TBI) is dismissed.

FINDING OF FACT

This appeal was inadvertently docketed at the Board, and in October 2020, while this matter was pending before the Board, VA was notified of the Veteran’s death. 

CONCLUSION OF LAW

Due to the Veteran’s opting into the higher level review in the new appeals system, as well as his death, 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 FINDING AND CONCLUSION

The Veteran served on active duty from October 1950 to October 1953 and April 1954 to April 1955.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2019 and March 2020, the Board previously remanded the issue on appeal for further development. Following a July 2020 Supplemental Statement of the Case, the Veteran opted into the new appeals system, requesting higher level review. The RO determined that additional development was necessary and notified the Veteran that the appeal was going to be developed as a supplemental claim. In the meantime, the legacy appeal was inadvertently re-docketed at the Board. Indeed, the Veteran’s attorney advised the Board of this error in an October 2020 letter.

In any event, unfortunately, the Veteran died during the pendency of the appeal in October 2020. 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; 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).

 

 

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Straughn, 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.