Citation Nr: 21003120
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 17-04 731
DATE: January 19, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

On January 11, 2021, the Board was notified that the appellant died in January 2021.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of these appeals at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service from August 1962 to July 1984.  He died in January 2021. 

These matters came before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a prostate condition and degenerative disc disease, lumbar spine.  The decision also granted service connection for sterilization secondary to right epididymectomy, with a non-compensable evaluation effective July 11, 2014.  

In disagreement with the June 2015 rating decision, the Veteran submitted a September 2015 VA 21-0958 and August 2015 statement.  Taken together, they indicated disagreement with the three aforementioned issues.  In January 2017, a statement of the case was issued as to service connection for the lumbar spine condition and entitlement to a higher evaluation as to sterilization secondary to right epididymectomy.  The Veteran submitted a January 2017 VA Form 9 identifying only service connection for prostate cancer and degenerative disc disease, lumbar spine.  A September 2017 supplemental statement of the case included these two issues.   The Veteran’s representative included both of these issues on a VA Form 646 received in October 2017 and these issues were certified to the Board that same month.  

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2).

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 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.  38 C.F.R. § 3.1010(b).

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Vuong, 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.