Citation Nr: 21064640
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 18-49 843A
DATE: October 21, 2021

ORDER

Due to the death of the Veteran, entitlement to service connection for a low back disorder is dismissed.

FINDING OF FACT

The Veteran passed away in September 2021; at the time of the Veteran's death, his appeal for entitlement to service connection for a low back disorder was pending.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the claim on appeal at this time. 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 October 1966 to August 1969; from May 1972 to March 1979; and from July 1981 to January 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran appealed the claim, and then perfected such appeal to the Board. See August 2018 NOD; January 2019 SOC; and February 2019 VA Form 9. In July 2019, the Board remanded the claim.  

Death Dismissal

As noted above, the Veteran passed away in September 2021, during the pendency of his appeal for entitlement to service connection for a low back disorder.  As a matter of law, the appeal does not survive the Veteran's death, and the appeal must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994).

The Board's dismissal of the appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion.  Such request must be filed not later than one year after the date of the Veteran's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010.

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" 38 U.S.C. § 5121A; see 79 Fed. Reg. 52,977, 52,982 (Sept. 5, 2014) (to be codified at 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 RO office from which the claim originated. 79 Fed. Reg. 52, 977, 52,982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010(b)).

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Hanson

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.