Citation Nr: 21069652
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 19-23 334
DATE: November 19, 2021

ORDER

The appeal for entitlement to service connection for left knee arthritis is dismissed.

The appeal for entitlement to service connection for right ankle arthritis is dismissed.

The appeal for entitlement to service connection for bone spur (unspecified) is dismissed.

FINDING OF FACT

Prior to issuing a decision in this case, the Veteran died 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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran (appellant) died in October 2021 during the pendency of this appeal. As a matter of law, appellants' claims do not survive their deaths. Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the appellant 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 no later than one year after the date of the appellant's death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). 

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In this regard, the Board acknowledges that in October 2021, the Veteran's spouse requested to be substituted as the appellant in his pending appeal. The request for substitution has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The AOJ must decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(e). Therefore, the Board does not have jurisdiction over the request from the Veteran's surviving spouse for substitution, and this issue is referred to the AOJ for appropriate action. If the Veteran's spouse is deemed a properly substituted claimant by the AOJ, the substitute may continue the claim or appeal on behalf of the deceased claimant for purposes of processing the claim or appeal to completion. 38 C.F.R. § 3.1010(a).

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Tariq, Nadeem, 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.