Citation Nr: 21070291
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 17-46 306
DATE: November 23, 2021

ORDER

The appeal of whether new and material evidence has been received to reopen a claim for service connection for hepatitis C, also claimed as cancer of the liver and toxic nephropathy, is dismissed without prejudice.

FINDING OF FACT

On October 25, 2021, the Board was notified by the Department of Veterans Affairs Regional Office, in Columbia, South Carolina, that the appellant died in October 2021.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who is the appellant in this case, served on active duty in the United States Army from March 1977 to February 1980. Unfortunately, the appellant died during the pendency of the appeal.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs Regional Office.

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 appellant 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.

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 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; see 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).

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The Board observes the Agency of Original Jurisdiction has not yet considered the VA Form 21P-0847, Request for Substitution of Claimant Upon Death of Claimant, submitted in October 2021. Therefore, the Board must dismiss the pending appeal for lack of jurisdiction.

 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Grace A. Johnk, 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.