Citation Nr: 21004096
Decision Date: 01/26/21	Archive Date: 01/26/21

DOCKET NO. 16-58 824
DATE: January 26, 2021

ORDER

Entitlement to an earlier effective date for the grant of service connection for depressive disorder with anxious distress is dismissed.

Entitlement to an earlier effective date for the grant of service connection for femoral nerve radiculopathy, right lower extremity, is dismissed.

Entitlement to an earlier effective date for the grant of service connection for femoral nerve radiculopathy, left lower extremity, is dismissed.

Entitlement to an earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) is dismissed.

Entitlement to an earlier effective date for the increased evaluation of paresthesia/radiculopathy, left lower extremity, is dismissed.

Entitlement to an earlier effective date for the increased evaluation of paresthesia/radiculopathy, right lower extremity, is dismissed.

FINDING OF FACT

On November 27, 2020, the Board was notified that the appellant died in November 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

Unfortunately, the appellant 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 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.

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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).

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. VanValkenburg, 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.