Citation Nr: 21067916
Decision Date: 11/08/21	Archive Date: 11/08/21

DOCKET NO. 19-01 504
DATE: November 8, 2021

ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for stroke and residuals of stroke is dismissed.

FINDING OF FACT

Prior to promulgating a decision, the Board was notified by the Department of Veterans Affairs (VA) Regional Office (RO), that the Appellant died in September 2021. 

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of the appeal of entitlement to compensation under 38 U.S.C. § 1151 for stroke and residuals of stroke, at this time.  38 U.S.C. § 7105; 38 C.F.R. § 20.205. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from March 1970 to October 1974.

Entitlement to compensation under 38 U.S.C. § 1151 for stroke and residuals of stroke.

Unfortunately, the appellant 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); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  The appeal on the merits has become moot by virtue of 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.

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 the 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; see 79 Fed. Reg. 52977, 52982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010) (addressing eligibility for substitution, how an eligible survivor makes a request to substitute, a substitute's rights in adjudication, limitations related to substitution, and order of preference among eligible survivors).

An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the RO from that the claim originated, which is listed on the first page of this decision. 

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jordan, Jacquelynn

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.