Citation Nr: 21003969
Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 19-09 100A
DATE: January 25, 2021

ORDER

The appeal of the denial of an increased rating for residuals of a stress fracture of the mid-shaft of the left tibia (left leg disability), currently rated as 10 percent disabling, is dismissed.

The appeal of the denial of a total disability evaluation due to individual unemployability (TDIU) is dismissed.

FINDING OF FACT

The Board was notified that the Veteran died on December [REDACTED], 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

This case was previously before the Board in November 2019.  At that time, the Board remanded the issues of entitlement to an increased rating for the Veteran’s left leg disability and entitlement to TDIU for further development.  

Unfortunately, the appellant died during the pendency of the appeal.  The record contains a Certificate of Death confirming that the Veteran passed away in December 2020 due to COVID-19.  

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.  Accordingly, the pending appeals for a higher rating for the Veteran’s left leg disability and TDIU are dismissed.  

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).

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M.M. Schneider

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.