Citation Nr: 21004941
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 16-14 771
DATE: January 28, 2021

ORDER

Entitlement to service connection for posttraumatic stress disorder is dismissed.

Entitlement to service connection for bilateral hearing loss is dismissed.

Entitlement to service connection for bilateral tinnitus is dismissed.

FINDING OF FACT

The appellant died on December [REDACTED], 2020, before a decision by the Board was promulgated on appeal.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the issues on appeal, and they are dismissed. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302; but see 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1967 to July 1971. The Veteran died in December 2020.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the RO.  

Service Connection

As the appellant died during the pendency of the appeal and substitution as the claimant has not been finalized, the appeal must be dismissed. 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 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 the claim or to any derivative claim brought by a survivor of the appellant. 38 C.F.R. § 20.1106.

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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.  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).

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Slovick, 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.