Citation Nr: 21001871
Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 09-42 339A
DATE: January 12, 2021

ORDER

The appeal seeking service connection for peripheral neuropathy of the right and left upper extremities and the left lower extremity is dismissed.

FINDING OF FACT

According to the Social Security Administration (SSA), the Veteran died in December 2020, before a decision by the Board was promulgated.    

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction at this time to adjudicate the merits of his appeal seeking service connection for peripheral neuropathy of the right and left upper extremities and the left lower extremity.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  

REASONS AND BASES FOR FINDING AND CONCLUSION

In January 2021, before the Board could consider the appeal, VA received notification that the Veteran had died in December 2020; his death was confirmed by the SSA, a Federal agency.  In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death.  38 C.F.R. § 3.211(g).  As there is no evidence to the contrary, the Board accepts the finding by the SSA as proof of the Veteran’s death during the pendency of the appeal and before the Board promulgated a decision on the appeal seeking service connection for peripheral neuropathy of the right and left upper extremities and the left lower extremity.

As the Veteran died during the pendency of the appeal, as a matter of law his appeal seeking peripheral neuropathy of the right and left upper extremities and the left lower extremity does not survive his death.  Thus, the appeal must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; 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). 

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.  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).  

 

 

George R. Senyk

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Debbie Breitbeil, 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.