Citation Nr: 21003392
Decision Date: 01/21/21	Archive Date: 01/21/21

DOCKET NO. 19-07 191A
DATE: January 21, 2021

ORDER

The appeal for the issue of whether new and material evidence has been received to reopen a claim for service connection for migraine headaches is dismissed.

The appeal for the issue of entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is dismissed.

The appeal for the issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II, is dismissed.

The appeal for the issue of entitlement to service connection for retinopathy (claimed as vision problems), to include as secondary to diabetes mellitus type II, is dismissed.

The appeal for the issue of entitlement to service connection for a stroke, to include as secondary to type II diabetes mellitus and hypertension, is dismissed.

FINDING OF FACT

In January 2021, the Board of Veterans’ Appeals (Board) received notification that the Veteran had died in December 2020.

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 from October 1969 to May 1971.  He had subsequent service in the United States Army Reserve and was ordered to active duty in support of Operation Desert Shield/Storm from November 1990 to July 1991.

This case comes before the Board on appeal from October 2016, February 2017, and April 2018 rating decisions by the Department of Veterans Affairs (VA).  The Veteran had a hearing before a Decision Review Officer of the agency of original jurisdiction in October 2018, and he had a pending Board hearing request.  See February 2020 substantive appeals.

Unfortunately, the Veteran died during the pendency of the appeal.  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.  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 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 Veteran’s death.  See 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; see 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).

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Postek, 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.