Citation Nr: 21063980
Decision Date: 10/18/21	Archive Date: 10/18/21

DOCKET NO. 20-26 459
DATE: October 18, 2021

ORDER

Entitlement to a compensable evaluation for extraction of teeth #1, 3, 14, 16, 17, 18, and 30 is dismissed. 

Entitlement to a rating in excess of 10 percent based on multiple, noncompensable, service-connected disabilities is dismissed. 

FINDING OF FACT

In September 2021, the VA received notice that the Veteran died. 

CONCLUSIONS OF LAW

1. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to a compensable evaluation for extraction of teeth #1, 3, 14, 16, 17, 18, and 30 at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for entitlement to a rating in excess of 10 percent based on multiple, noncompensable, service-connected disabilities at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from June 1967 to October 1970.  

Unfortunately, the Veteran died during the pendency of the appeals.  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).  Thus, these appeals on the merits have 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 these appeals or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106.

The Board's dismissal of these appeals 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 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).

In this case, a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, was received by VA in September 2021.  Yet, a review of the claims file reveals that the AOJ has yet to issue a decision related to the request for substitution. 

In this regard, the AOJ must provide written notification of its decision to either grant or deny a request for substitution to the person who filed the request, together with notice in accordance with 38 C.F.R. § 3.103(b)(1) in the first instance, including any request to substitute in an appeal that is pending before the Board.  38 C.F.R. § 3.1010(e).

Accordingly, the Board lacks the requisite jurisdiction and cannot adjudicate the request for substitution in the first instance.  Consequently, the Veteran's appeals must be dismissed.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Wade

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.