Citation Nr: 21003989
Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 18-10 664
DATE: January 25, 2021

ORDER

A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed.

FINDING OF FACT

On December 14, 2020, the Board was notified that the appellant died in December 2018.

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 from April 1957 to April 1959 in the U.S. Army.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

This appeal has been advanced on the Board’s docket.  38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2019).  

In November 2020, the Board remanded the appeal for further development.  This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand order.  Stegall v. West, 11 Vet. App. 268, 271 (1998).   

Unfortunately, the appellant died in December 2018, during the pendency of the appeal.  The Board became aware of the appellant’s death on December 14, 2020, according to a Social Security Administration (SSA) computer inquiry.  Also, an earlier January 3, 2019 VA addendum note in the Compensation and Pension Record Interchange (CAPRI) notified VA that the Veteran had passed away in December 2018.

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).

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.