Citation Nr: 21001763
Decision Date: 01/11/21	Archive Date: 01/11/21

DOCKET NO. 16-04 579
DATE: January 11, 2021

ORDER

The appeal as to the claim of entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 7, 2014 is dismissed.

FINDING OF FACT

Before promulgating a decision on appeal, 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 FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from April 1980 to April 1983.  During his period of service, he earned the Rifle M-16 Marksman Badge, Army Service Ribbon, and Good Conduct Medal.  

The claim was previously before the Board in September 2018, at which time the Board remanded the issue on appeal for further development.  The claim has since returned to the Board.

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans’ 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 Veteran’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 veteran should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010(b). 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Joseph, 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.