Citation Nr: 21004858
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 18-42 466
DATE: January 28, 2021

ORDER

Compensation under 38 U.S.C. §1151 for congestive heart failure is dismissed.

FINDING OF FACT

In January 2021, the Board was notified that the Veteran died in December 2020, during the pendency of the appeal.

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 in the United States Army from June 1966 to June 1969 and from December 1970 to July 1989.  The Veteran died in December 2020. 

This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a March 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.  The rating decision denied compensation under 38 U.S.C. §1151 for congestive heart failure.  The Veteran’s Notice of Disagreement was received in May 2018.  The Statement of the Case was issued in July 2018 and the Veteran’s VA Form 9, substantive appeal to the Board was received in August 2018. 

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). 

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Kuksova, Kseniya

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.