Citation Nr: 21004166
Decision Date: 01/26/21	Archive Date: 01/26/21

DOCKET NO. 19-02 971A
DATE: January 26, 2021

ORDER

The appeal for the issue of entitlement to service connection for Alzheimer’s disease and dementia is dismissed.

The appeal for the issue of entitlement to service connection for cerebral embolism is dismissed.

The appeal for the issue of entitlement to service connection for a right knee disorder is dismissed. 

The appeal for the issue of entitlement to special monthly compensation (SMC) based on aid and attendance/housebound is dismissed.

FINDING OF FACT

On January 6, 2021, prior to the promulgation of a decision, the Board received notification that the Veteran had died in November 2020.

CONCLUSION OF LAW

Due to the Veteran’s death, 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 September 1942 to August 1945.  The record shows he was scheduled for a March 2020 hearing before a Veterans Law Judge at the RO.  However, in February 2020 correspondence he canceled the hearing.  The Veteran also did not appear for a Board hearing scheduled for July 2020.  As a result, any outstanding hearing request is considered withdrawn.  38 C.F.R. § 20.704(d)(e).  

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 his death and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

(Continued on the next page)

 

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 Veteran’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).

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J.R. Bryant

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.