Citation Nr: 21068469
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 15-41 459
DATE: November 10, 2021

ORDER

Entitlement to a certificate of eligibility for an automobile and adaptive equipment or for adaptive equipment only is dismissed.

FINDING OF FACT

In April 2021, VA was notified that the Veteran died in April 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

Entitlement to a certificate of eligibility for an automobile and adaptive equipment or for adaptive equipment only

The Veteran served on active duty from December 1965 to December 1971 with an additional period of unverified service from July 1963 to December 1965.

This appeal come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 decision.  The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2019.  A transcript of that hearing is of record. This appeal was remanded by the Board in May 2019 and adjudicated in October 2020. The October 2020 Board decision granted entitlement to a certificate of eligibility for specially adapted housing, which means that issue has been granted in full and is not on appeal, and thus is not listed as an issue in this decision. The Veteran appealed the October 2020 Board decision to the Court of Appeals of Veterans Claims (Court). A July 2021 Memorandum Decision from the Court vacated the October 2020 Board decision as to the issue on appeal and dismissed this appeal due to the death of the Veteran.

Unfortunately, the Veteran died during the pendency of the appeal. An April 2021 Report of First Notice of Death indicates that the Veteran died on April [REDACTED], 2021. 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. 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 the appeals or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. Moreover, 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. See 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).

 

 

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Budd, 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.