Citation Nr: 21003374
Decision Date: 01/21/21	Archive Date: 01/21/21

DOCKET NO. 17-07 210
DATE: January 21, 2021

ORDER

The appeal for entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the right knee is dismissed.  

FINDING OF FACT

In December 2020, prior to the promulgation of a decision in this appeal, the Board of Veterans’ Appeals (Board) received notification through the First Notice of Death (FNOD) Program that the Veteran passed away in December 2020.  

CONCLUSION OF LAW

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

REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matters

The Veteran had honorable active duty service with the United States Army from November 1974 to November 1977.  

This matter is before the Board on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In May 2020, the Veteran testified at a virtual tele-hearing Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been associated with the Veteran’s electronic claims file.  

Dismissal

Unfortunately, the Veteran died during the pendency of the appeal.  Notification of death was received through the FNOD Program, as indicated in the electronic Veterans Appeals Control and Locator System (VACOLS).  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).  The issue on appeal on the merits has become moot by virtue of the death of the appellant 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 the issue on appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106.  

The Board’s dismissal of the issue on 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 claims 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).  

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Y. MacDonald, 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.