Citation Nr: 21068187
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 16-11 512
DATE: November 9, 2021

ORDER

Entitlement to a disability rating in excess of 60 percent for ischemic heart disease is dismissed.

Entitlement to service connection for peripheral artery disease, left lower extremity, to include as due to herbicide exposure and secondary to ischemic heart disease is dismissed.

Entitlement to service connection for peripheral artery disease, right lower extremity, to include as due to herbicide exposure and secondary to ischemic heart disease is dismissed.

Entitlement to service connection for peripheral neuropathy, left lower extremity, to include as due to herbicide exposure and secondary to ischemic heart disease is dismissed.

Entitlement to service connection for peripheral neuropathy, right lower extremity, to include as due to herbicide exposure and secondary to ischemic heart disease is dismissed.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed.

FINDING OF FACT

On October 15, 2021, the Board was notified that the Veteran passed away in October 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), 7105 (2012); 38 C.F.R. § 19.55, 20.1302 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1968 to March 1972.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, TN.

In May 2019, the Veteran testified at a videoconference hearing at the VA Regional Office (RO) in Montgomery, AL, before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been associated with the electronic claims record. 

In a September 2019 decision, the Board remanded these issues for additional adjudication.  The matters are again before the Board for adjudication. 

Dismissed Appeal

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, Veterans' 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) of this title ...."  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).

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Kaufer, Associate 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.