Citation Nr: 21005019
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 12-27 172A
DATE: January 28, 2021

ORDER

The Veteran’s appeal for a compensable disability rating for left ear hearing loss is dismissed.

The Veteran’s appeal for entitlement to service connection for a right ear hearing loss disability is dismissed.

FINDING OF FACT

In January 2021, the Board was notified that the Veteran died in November 2020.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1980 to June 1983.  

This appeal comes to the Board of Veterans’ Appeals (Board) from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a January 2017 hearing before a Veterans Law Judge.  The Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in July 2017 for additional development. 

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. TRUEBA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Michael Duffy, 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.