Citation Nr: 21003964
Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 20-20 941
DATE: January 25, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In December 2020, the Board was notified that the Veteran 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 had active duty service from August 1978 to September 1985.  The Veteran died in December 2020.  

The issues on appeal originated from a June 2010 rating decision that the RO readjudicated de novo in May 2019 and April 2020, with the issues most recently characterized as entitlement to increased ratings for: right total knee replacement, evaluated as 30 percent disabling, left total knee replacement, evaluated as 30 percent disabling, arthritis, lumbosacral spine, evaluated as 10 percent disabling, arthritis, right ankle, evaluated as 10 percent disabling, arthritis, left ankle, evaluated as 10 percent disabling, orthopedic distortion, right ankle, evaluated as 10 percent disabling, and orthopedic distortion, left ankle, evaluated as 10 percent disabling, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).   

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.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

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). 

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T.S.E., 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.