Citation Nr: 21004386
Decision Date: 01/27/21	Archive Date: 01/27/21

DOCKET NO. 17-42 082
DATE: January 27, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

On January 21, 2021, the Board was notified that the Veteran died on December [REDACTED], 2020.  

CONCLUSION OF LAW

Due to the death of the Veteran, 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 August 1978 to August 1979.  

This matter before the Board of Veterans Appeals (Board) arose from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  In his August 2017 substantive appeal, the Veteran requested a Board hearing.  Unfortunately, he died before he could be afforded the requested hearing.

Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) prior to July 17, 2017 

Entitlement to a total disability rating based on individual unemployability due to service-connected PTSD prior to July 17, 2017

Unfortunately, the Veteran died during the pendency of this 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).  Accordingly, this appeal on the merits has become moot by virtue of the death of the Veteran 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 the claim on appeal or 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; see 38 C.F.R. § 3.1010(a).  An eligible party seeking 

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substitution in an appeal that has been dismissed by the Board due to the death of a claimant should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. § 3.1010(b).  

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Michael Wilson, 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.