Citation Nr: 21064313
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 17-43 860
DATE: October 19, 2021

ORDER

The appeal regarding entitlement to service connection for type II diabetes mellitus (DM) is dismissed.

The appeal regarding entitlement to service connection for coronary artery disease (CAD) is dismissed.

FINDING OF FACT

On October 2021, the Department of Veterans Affairs (VA) was notified by the Veteran's representative that the Veteran died in August 2020.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board of Veterans' Appeals (Board) has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. § 7104(a)(2); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1966 to August 1968.  

The Veteran appealed an August 2016 rating decision by the Agency of Original Jurisdiction (AOJ).  

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.  See 38 U.S.C. § 7104(a)(2); 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 Veteran's death.  See 38 U.S.C. § 5121A(2); 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(2); 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).  No substitution has been made at this time.  Therefore, the claim must be dismissed.

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Zheng, 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.