Citation Nr: 21068425
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 18-19 899
DATE: November 10, 2021

ORDER

The appeal as to the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.  

FINDING OF FACT

On April 20, 2020, the Department of Veterans Affairs (VA) was notified that the Veteran died on April [REDACTED], 2020.

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

Unfortunately, the Veteran (appellant), who served on active duty in the United States Navy from January 1978 to October 1978, died during the pendency of the appeal.  

Specifically, the Veteran's appeal was denied in an August 2019 Board decision, which he appealed to the Court of Appeals for Veterans Claims (Court).  In a January 2021 Memorandum Decision, the Court affirmed the denial of a TDIU and dismissed the remainder of the appeal, as they were deemed abandoned by the appellant for lack of any argument presented with respect to the same.  Upon receipt of notification of the Veteran's death, via a September 2021 Order, the Court's April 2021 mandate was recalled, February 2021 judgment revoked, and the January 2021 Memorandum Decision was withdrawn. The Court also vacated the Board's August 2019 decision with regard to matters appealed to the Court (TDIU) and dismissed the appeal for lack of jurisdiction, which returned the case to the Board.  

As a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996).  Accordingly, 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.  

 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Asante, Ruby

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.