Citation Nr: 21070534
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 18-09 617
DATE: November 24, 2021

ORDER

Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $12,213.75 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 this claim 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.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2018 VA Decision on Waiver of Indebtedness. In August 2021, a video conference hearing was held before the undersigned; a transcript is in the record. 

Entitlement to a waiver of recovery of an overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $12,213.75

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.

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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.