Citation Nr: 21004736
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 17-34 823
DATE: January 28, 2021

ORDER

The appeal is dismissed.

FINDINGS OF FACT

1. On November 20, 2020, the Board was notified that the Veteran died in May 2020.

2. Prior to the Veteran’s death, he filed claims for the following: (1) a rating in excess of 30 percent since April 9, 2016 for service-connected posttraumatic stress disorder (PTSD); and (2) entitlement to a rating of total disability based on individual unemployability due to service-connected disorders (TDIU).

CONCLUSIONS 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 in the United States Army from February 1968 to March 1970, including verified service in the Republic of Vietnam.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  By way of background, the Veteran’s claims were previously before the Board on March 21, 2019 (denying the increased rating claim for PTSD, but remanding the claim for TDIU) and later modified by a Joint Motion for Remand from the Court of Appeals for Veterans Claims (Court) granted on January 22, 2020.  The Veteran was most recently issued a Supplemental Statement of the Case on April 25, 2020, as pertaining to the claim for a TDIU.  When the Court became aware of the Veteran’s death, it revoked its previous decision on September 29, 2020, and dismissed the remaining claim due to lack of jurisdiction. 

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 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).

The Board is thankful for the Veteran’s service to the United States of America.  The Board also expresses sincere sympathy to his surviving family for their loss.  Nonetheless, for the reasons articulated above, the Veteran’s appeal is dismissed. 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Michael B. Engle, 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.