Citation Nr: 21069736
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 19-29 143
DATE: November 19, 2021

ORDER

1. Entitlement to an increased disability rating in excess of 10 percent for right ankle varus valgus is dismissed.

2. Entitlement to an earlier effective date than October 26, 2016 for the grant of an increased 10 percent disability rating for right ankle varus valgus is dismissed.

3. Entitlement to an earlier effective date than October 26, 2016 for the grant of service connection for bilateral hearing loss is dismissed.

FINDING OF FACT

In November 2021, during the pendency of the appeal, and prior to the promulgation of a decision in these matters, the Board was notified that the Veteran died in November 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, and the appeal is dismissed.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from November 1958 to February 1962.

These matters come to the Board of Veterans' Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA).

Unfortunately, the Veteran died in November 2021, during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Zevalin 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 is dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2020).

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 (2020). 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 Veteran's death. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2020). 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 claims originated (listed on the first page of this decision). 38 C.F.R. § 3.1010(b).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Chad Johnson, 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.