Citation Nr: 21064785
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 16-14 749
DATE: October 21, 2021

ORDER

Entitlement to service connection for the cause of the Veteran's death is dismissed.

FINDING OF FACT

In September 2021, the Board of Veterans' Appeals (Board) was notified that the appellant died in May 2021.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this 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 in the United States Army from April 1971 to May 1978, and the U.S. Navy from September 1982 to August 1995, completing an honorable military career.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

1. Entitlement to service connection for the cause of the Veteran's death is dismissed.

In a December 2019 decision, the Board denied the appellant's claim for DIC benefits pursuant to 38 U.S.C. § 1151 for the cause of the Veteran's death.  The appellant appealed to the U.S. Court of Appeals for Veterans Claims (CAVC).  In a June 2021 decision CAVC issued a joint motion for remand and returned the issue to the Board.  In June 2021, appellant's counsel informed CAVC that the appellant had died in May 2021.  The appellant's counsel stated that there was no one eligible for substitution in the appeal.  As such, CAVC vacated the Board's December 2019 decision and dismissed 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 the death of the appellant 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 this appeal or to any derivative claim brought by a survivor of the appellant.  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.  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, in this case the Regional Office in Pasay City, Philippines.  38 C.F.R. § 3.1010(b).

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	AK

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.