Citation Nr: 21002804
Decision Date: 01/15/21	Archive Date: 01/15/21

DOCKET NO. 18-26 012
DATE: January 15, 2021

ORDER

The appeal with respect to entitlement to service connection for a right foot disability is dismissed.

The appeal with respect to entitlement to service connection for a left foot disability is dismissed.

The appeal with respect to entitlement to service connection for a right ankle disability is dismissed.

The appeal with respect to entitlement to service connection for a left ankle disability is dismissed.

FINDING OF FACT

The Veteran died in December 2020, while the current appeal was pending.

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 August 1972 to September 1976.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The RO, in pertinent part, denied service connection for disabilities of the ankles and feet.

The issues on appeal were previously before the Board in July 2019 and May 2020, when they were remanded to the agency of original jurisdiction (AOJ) for additional development.  On both occasions, after taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board.

Dismissal

Unfortunately, the Veteran died in December 2020, while the current appeal was pending.  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.  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 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).

 

 

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	John Kitlas, 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.