Citation Nr: 21061514
Decision Date: 10/04/21	Archive Date: 10/04/21

DOCKET NO. 18-04 498
DATE: October 4, 2021

ISSUE

Entitlement to a disability rating in excess of 10 percent for mild right knee degenerative joint disease (right knee disability).

ORDER

Entitlement to a disability rating in excess of 10 percent for right knee disability is dismissed.

FINDING OF FACT

In September 2021 the Board was notified that the Veteran 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) (West 2014); 38 C.F.R. § 20.1302 (2017). 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1973 to May 1993. This case is before the Board of Veterans' Appeals (the Board) on appeal of an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida.

The Veteran testified before the undersigned during a January 2020 travel Board hearing; a copy of the transcript is of record.

When this case was previously before the Board in April 2020, it was decided in part and remanded in part for additional evidentiary development. Subsequently in an October 2020 rating decision, entitlement to service connection for degenerative arthritis of the spine; entitlement to service connection for left knee osteoarthritis; and entitlement to total disability rating based on individual unemployability due to service-connected disabilities was granted; as such, these issues are no longer before the Board.  

Unfortunately, the Veteran died in September 2021 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) (West 2014); 38 C.F.R. § 20.1302 (2017).

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 (2017). 

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 (West 2014); 38 C.F.R. § 3.1010 (b) (2017).  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 (West 2014); see 38 C.F.R. § 3.1010 (a) (2017).  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) (2017).

 

 

MICHAEL A. PAPPAS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R.M.K., 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.