Citation Nr: 21067876
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 11-10 850
DATE: November 5, 2021

ORDER

The appeal is dismissed. 

FINDING OF FACT

In October 2021, the Board was notified that the Veteran died on October [REDACTED], 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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the appellant, served on active duty from March 1956 to March 1958.  

This matter was previously before the Board in June 2020, at which time the Board issued a decision, which in pertinent part, denied service connection for right and left knee disorder, a lumbar spine disorder, a left shoulder disorder, and right and left foot pes planus.  The Veteran appealed the Board's June 2020 decision to the United States Court of Appeals for Veterans Claims (Court).  The Board's June 2020 decision was remanded pursuant to a July 2021 Joint Motion for Partial Remand.  

The Veteran died in October 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 Veteran 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; 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)." 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). 

 

 

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tenney, 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.