Citation Nr: 21064413
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 19-33 045
DATE: October 20, 2021

ORDER

Entitlement to service connection for varicose veins/peripheral vascular disease due to diabetes and arterial hypertension is dismissed.

FINDING OF FACT

The Veteran died in July 2021, and no appellant has been substituted. 

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this matter. 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 June 1966 to January 1970. 

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran died in July 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 has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302. 

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.

(Continued on the next page)

 

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).

In August 2021, the Veteran's surviving spouse submitted an application for dependency and indemnity compensation (DIC), survivor's pension and/or accrued benefits (VA Form 21-534EZ), which is also considered a request for substitution. The agency of jurisdiction must rule on the request for substitution but has not yet done so. See 38 C.F.R. § 3.1010 (e). Thus, the appeal of this matter must be dismissed without prejudice due to lack of jurisdiction.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Susan Leary

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.