Citation Nr: 21070695
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 16-36 013
DATE: November 24, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In October 2021, the Board was notified that the Veteran died that same month. 

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

The Veteran had active-duty service from June 2001 to February 2005.  The Veteran died in October 2021. 

The issues on appeal originated from a February 2016 rating decision.  In November 2018, the Board remanded the claims for additional development.  The issues were most recently characterized as entitlement to a rating in excess of 30 percent for recurrent headaches, and entitlement to a rating in excess of 30 percent for right, carpal tunnel syndrome.  In June 2021, the Veteran filed a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and that claim was considered part-and-parcel of his appeal.  Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001).  The TDIU claim was also moot as of August 25, 2020, as a 100 percent rating is in effect from August 25, 2020.  Bradley v. Peake, 22 Vet. App. 280 (2008).

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, a Veteran's claim does not survive his death.  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.  38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

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.  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; 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).

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S.E., 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.