Citation Nr: 21004413
Decision Date: 01/27/21	Archive Date: 01/27/21

DOCKET NO. 20-03 627
DATE: January 27, 2021

ORDER

The appeal is dismissed.

FINDINGS OF FACT

In January 2021, VA was notified that the Veteran died in December 2020.

CONCLUSIONS OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1202. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1960 to October 1963.

This matter comes before the Board of Veterans’ Appeals (Board) from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran passed away during the pendency of the appeal.  As a matter of law, Veterans’ 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).  Thus, the claim on appeal has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction.  See 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 Veteran 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.  See 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 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).

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Gorum, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.