Citation Nr: 21070528 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-26 588 DATE: November 24, 2021 ORDER The appeal of a denial of entitlement to a rating in excess of 40 percent for a cervical spine disability from September 1, 2016 is dismissed. The appeal as to the timeliness of the notice of disagreement (NOD) for a motion of clear and unmistakable error (CUE) of a January 2014 rating decision is dismissed. FINDING OF FACT In October 2021, VA was notified that the Veteran died in October 2021. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate an appeal on the merits of these claims at this time. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.1302 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1983 to April 1983 and from October 1992 to March 1993. He died in October 2021. The matter of an increased rating for a cervical spine disability is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision. On January 11, 2018 the Veterans submitted a notice of disagreement (NOD) (VA Form 21-0958) containing a motion for reversal or revision of a January 2014 rating decision on the basis of clear and unmistakable error (CUE). In January 2018 correspondence, the Veteran was notified that his January 11, 2018 NOD was untimely. In a January 30, 2018 NOD, the Veteran appealed the January 2018 notification letter by the RO rejecting the submission of his January 11, 2018 NOD as untimely because it was not an NOD but rather a separate motion to reverse or revise the January 2014 decision on the basis of CUE citing 38 C.F.R. § 14.636 (c). In August 2021, a video conference hearing was held before the undersigned; a transcript is in the record. 1. Entitlement to a rating in excess of 40 percent for a cervical spine disability from September 1, 2016 2. The appeal as to the timeliness of the notice of disagreement (NOD) to include a motion of clear and unmistakable error (CUE) of a January 2014 rating decision Unfortunately, the Veteran died during the pendency of the appeal. 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 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 this 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 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). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.