Citation Nr: 21004955
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 18-12 046
DATE: January 28, 2021

ORDER

Entitlement to service connection for Non-Hodgkins lymphoma is dismissed.

Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. 

Entitlement to an initial compensable rating for bilateral hearing loss is dismissed. 

FINDING OF FACT

The Veteran 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 in the U.S. Army from January 1992 to March 1997. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

On his February 2018 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ) by live videoconference but unfortunately passed away before a hearing could be scheduled.  A deposition of the Veteran was taken in August 2020.  The transcript is of record. 

Death Dismissal

1. Entitlement to service connection for Non-Hodgkins lymphoma.

2. Entitlement to an initial rating in excess of 10 percent for tinnitus. 

3. Entitlement to an initial compensable rating for bilateral hearing loss.

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).

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Kuzniar, 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.