Citation Nr: 21003681
Decision Date: 01/22/21	Archive Date: 01/22/21

DOCKET NO. 19-36 149A
DATE: January 22, 2021

ORDER

The appeal as to the claim of entitlement to service connection for cervical spine post-laminectomy is dismissed.

The appeal as to the claim of entitlement to service connection for depression and anxiety, as secondary to cervical spine post-laminectomy, is dismissed.

The appeal as to the claim of entitlement to service connection for bilateral upper extremity radiculopathy, as secondary to cervical spine post-laminectomy, is dismissed.

The appeal as to the claim of entitlement to service connection for chronic lower back pain with nerve damage is dismissed.

The appeal as to the claim of entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to chronic lower back pain with nerve damage, is dismissed. 

The appeal as to the claim of entitlement to service connection for tinnitus is dismissed.

FINDING OF FACT

On January 13, 2021, the Board was notified that the Veteran died in September 2020.

CONCLUSION OF LAW

Due to the death of the appellant, 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 May 1984 to March 1988.

Unfortunately, the appellant 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 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).

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Watkins, 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.