Citation Nr: 21005244
Decision Date: 01/29/21	Archive Date: 01/29/21

DOCKET NO. 19-27 546
DATE: January 29, 2021

ORDER

Entitlement to service condition for bilateral hearing loss is dismissed.

Entitlement to service condition for posttraumatic stress disorder (PTSD) is dismissed.

Entitlement to service condition for hepatitis C is dismissed.

Entitlement to service condition for bronchitis is dismissed.

FINDING OF FACT

In January 2021, the agency of original jurisdiction (AOJ) was notified that the Veteran died in January 2021.

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 February 1966 to December 1969.  The Veteran passed away in January 2021.

This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO denied entitlement to hepatitis C and bronchitis and continued a previous denial for bilateral hearing loss and PTSD. 

In April 2019 the Veteran filed a notice of disagreement (NOD) as to his bilateral hearing loss, PTSD, hepatitis C and bronchitis, and in August 2019 the RO issued a statement of the case (SOC).  In September 2019 the Veteran timely filed a substantive appeal (via VA Form 9).

Death Dismissal

Unfortunately, the Veteran 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 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 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.  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 also 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 claims originated.  See 38 C.F.R. § 3.1010(b). 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	James R. Miller, 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.