Citation Nr: 21064425
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 17-65 716
DATE: October 20, 2021

ORDER

The appeal as to the issue of entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine is dismissed.

The appeal as to the issue of entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed.

FINDING OF FACT

On September 7, 2021, the Board was notified that the Veteran died in August 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) (2012); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1975 to June 1994. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).  

The issues on appeal were previously remanded by the Board for further development in December 2019.

Unfortunately, the Veteran died in August 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 appellant and must be dismissed for lack of jurisdiction.  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.  38 U.S.C. § 5121A (2012); 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.  38 C.F.R. § 3.1010 (b).

The Board notes that VA received a notice of intent to file a claim for dependency and indemnity compensation on August 24, 2021.  If such a claim is submitted, it will be deemed to include a request for substitution and the request will be adjudicated by the Agency of Original Jurisdiction (AOJ).  38 C.F.R. § 3.1010 (c)(2).

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Casadei, 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.