Citation Nr: 21001896
Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 09-50 032
DATE: January 12, 2021

ORDER

Entitlement to service connection for right ear hearing loss is dismissed.

Entitlement to service connection for a middle ear disorder is dismissed.

FINDING OF FACT

In December 2020, the Board of Veteran’s Appeals (Board) was notified that the Veteran passed away, during the pendency of his appeal.

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; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1971 to May 1973.

These matters come before the Board of Veteran’s Appeals (Board) from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran disagreed with that decision and perfected an appeal. Unfortunately, during the pendency of his appeal, the Veteran passed away in December 2020.

These matters were most recently before the Board in July 2017 when the claims were remanded for development. 

1. Entitlement to service connection for right ear hearing loss

2. Entitlement to service connection for a middle ear disorder

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 appellant and must be dismissed for lack of jurisdiction. 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, to include compliance with prior remand instructions, 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. 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. 38 C.F.R. § 3.1010 (b).

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Accordingly, the appeal must be dismissed as a matter of law.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Gonzalez-Maldonado

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.