Citation Nr: 21004631
Decision Date: 01/27/21	Archive Date: 01/27/21

DOCKET NO. 14-02 693
DATE: January 27, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

The Board has received notification that the appellant died in December 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

The Veteran served on active duty from April 1966 to March 1968.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with the record. 

The Board remanded the case for further development in February 2016.  The case was subsequently returned to the Board for appellate review.

In January 2020, the Board denied entitlement to a higher initial evaluation for coronary artery disease and remanded the issues of entitlement to service connection for bilateral hearing loss and to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for further development.  

During the pendency of the appeal, in a December 2020 rating decision, the agency of original jurisdiction granted service connection for bilateral hearing loss and entitlement to TDIU effective from December 10, 2015.  

Law and Analysis

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.

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).

 

 

J.W. ZISSIMOS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Department of Veterans Affairs

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.