Citation Nr: A21017282
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 200407-76940
DATE: October 26, 2021

ORDER

Entitlement to an effective date prior to February 23, 2018 for the grant of SMC under 38 U.S.C. § 1114(p) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 50 percent or more is dismissed.

Entitlement to an effective date prior to February 23, 2018 for the grant of SMC under 38 U.S.C. § 1114(l) on account of being permanently bedridden is dismissed.

Entitlement to an effective date prior to February 23, 2018 for the grant of special monthly compensation (SMC) under 38 U.S.C. § 1114(k) on account of the loss of use of one foot is dismissed.

Entitlement to an effective date prior to February 23, 2018 for the grant of a 100 percent rating for service-connected traumatic brain injury (TBI) is dismissed.

FINDINGS OF FACT

The Board was notified that the Veteran died in December 2020.

CONCLUSIONS 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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1946 to August 1949.  He died in December 2020.  The substitution request of the Veteran's daughter was denied.

This appeal is under the provisions of the Appeals Modernization Act (AMA).  The Board previously denied these matters in a July 2020 decision.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims.  During the course of that appeal, the Veteran died.  The Court granted the motion by the Veteran's attorney to dismiss the appeal and vacated the July 2020 Board decision.  The matter is now back before the Board. 

1. Entitlement to an effective date prior to February 23, 2018 for the grant of SMC under 38 U.S.C. § 1114(p) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 50 percent or more

2. Entitlement to an effective date prior to February 23, 2018 for the grant of SMC under 38 U.S.C. § 1114(l) on account of being permanently bedridden

3. Entitlement to an effective date prior to February 23, 2018 for the grant of special monthly compensation (SMC) under 38 U.S.C. § 1114(k) on account of the loss of use of one foot

4. Entitlement to an effective date prior to February 23, 2018 for the grant of a 100 percent rating for service-connected traumatic brain injury (TBI)

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).  This appeal on the merits has become moot by virtue of the death of the Veteran 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 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; 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.  38 C.F.R. § 3.1010 (b).

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. R. Stephens, 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.