Citation Nr: 21003940
Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 10-00 948
DATE: January 25, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 7, 2010 is dismissed.

FINDING OF FACT

In January 2020 the Department of Veterans Affairs (VA) was notified by the Social Security Administration (SSA) that the Veteran died in December 2020. 

CONCLUSION OF LAW

The criteria for dismissal of entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 7, 2010 have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55 (legacy).

REASONS AND BASES FOR FINDING AND CONCLUSION

1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 7, 2010

The Veteran had active service in the Army from October 1961 to October 1963. In January 2021 VA received documentation from the SSA that the Veteran died on December [REDACTED], 2021. At the time of his death, the Veteran had pending an appeal for entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 7, 2010.

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)(2); 38 C.F.R. § 20.1302.

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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(2); 38 C.F.R. § 3.1010(b).

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. C. Sametshaw

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.