Citation Nr: 21005223
Decision Date: 01/29/21	Archive Date: 01/29/21

DOCKET NO. 18-54 855
DATE: January 29, 2021

ORDER

Entitlement to service connection for chronic fatigue syndrome (CFS) is dismissed.

Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), is dismissed.

FINDING OF FACT

In January 2021, VA was notified that the Veteran had died in the same month. 

CONCLUSION 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 from November 2001 to November 2007.  

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the January 2015 and June 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 

The issues on appeal were previously remanded by the Board in February 2019 to clarify his CFS diagnosis and to obtain an addendum to the sleep apnea VA medical opinion which addressed medical articles submitted by the Veteran’s representative and his reported sleep problems shortly after discharge.  

However, in January 2021, VA was notified by the Social Security Administration of the Veteran’s death earlier in the same month.  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 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.  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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Moldawer, 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.