Citation Nr: 21004086
Decision Date: 01/26/21	Archive Date: 01/26/21

DOCKET NO. 19-38 694
DATE: January 26, 2021

ORDER

Entitlement to service connection for ataxia, bilateral lower extremities, is dismissed. 

Entitlement to service connection for ataxia, bilateral upper extremities, is dismissed.

Entitlement to service connection for cervical dystonia is dismissed.

Entitlement to service connection for excessive somnolence is dismissed.

Entitlement to service connection for autoimmune encephalitis is dismissed.

Entitlement to service connection for frontal and subcortical deficits is dismissed.

Entitlement to service connection for eyesight loss is dismissed.

FINDING OF FACT

The Veteran died in November 2020.  

 

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claims at this time.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2020); but see 38 U.S.C. § 5121A (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the United States Army from July 1964 to June 1967.

These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Dismissal Due to the Death of the Appellant

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, claimants’ 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.  In December 2020, the Veteran’s spouse filed a VA Form 21P-0847, Request for Substitution of Claimant Upon Death of Claimant.  However, this was after the Veteran’s claims were certified to the Board, and the Agency of Original Jurisdiction (AOJ) must make the initial substitution eligibility determination.  38 C.F.R. § 3.1010(e); see 38 C.F.R. § 3.103(b), (f).  Accordingly, the Board must dismiss the claims for lack of jurisdiction until the AOJ has made a determination on the propriety of the December 2020 substitution request.  See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  If the AOJ finds that substitution is appropriate, the case will then be returned to the Board’s docket.  38 C.F.R. §§ 3.1010, 20.1302.

 

 

M. SORISIO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	N. Breitbach, 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.