Citation Nr: 21071845
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 17-42 651
DATE: December 1, 2021

ORDER

Entitlement to service connection for degenerative arthritis of lumbar spine with intervertebral disc syndrome is dismissed.

Entitlement to service connection for bilateral lower leg radiculopathy, to include as due to exposure to herbicide agents, is dismissed.

FINDING OF FACT

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.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Marine Corps from September 1970 to July 1974.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

On his August 2017 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at a local VA office but unfortunately passed away before the scheduled hearing.  

The Veteran's appeal has been advanced on the docket.  38 C.F.R. § 20.902. 

Death Dismissal

1. Entitlement to service connection for degenerative arthritis of lumbar spine with intervertebral disc syndrome

2. Entitlement to service connection for bilateral lower leg radiculopathy, to include as due to exposure to herbicide agents

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans' 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.  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 Veteran'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).

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Kuzniar, 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.