Citation Nr: 21073248
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 19-19 174
DATE: December 8, 2021

ORDER

The appeal for the claim of entitlement to a rating in excess of 40 percent for bilateral hearing loss from March 2, 2016 to December 29, 2017; and for entitlement to a total disability rating based on individual unemployability (TDIU), on an extraschedular basis, for the period prior to December 29, 2017 is dismissed.

FINDING OF FACT

In September 2021, VA was notified that the Appellant died in August 2021; in November 2021, the Board received confirmation from Social Security Administration (SSA) verifying the Appellant's death.

CONCLUSION OF LAW

Due to the death of the Appellant, 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 from May 1945 to July 1946.  The Veteran died in February 2018.  The Appellant was the Veteran's surviving spouse.  This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ).

In a September 2019 decision, the Board, in part, denied the Veteran's claim for entitlement to a rating in excess of 40 percent for bilateral hearing loss from March 2, 2016 to December 29, 2017.  The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court).  Pursuant to an August 2020 Joint Motion for Partial Remand (JMPR), the Court vacated that part of the Board's decision that denied entitlement to a rating in excess of 40 percent for bilateral hearing loss from March 2, 2016, to December 29, 2017, and failed to adjudicate entitlement to a TDIU and remanded the claim to the Board for adjudication of entitlement to a TDIU.  

In a February 2021 decision, the Board granted a TDIU from December 29, 2017, and remanded entitlement to a TDIU, on an extraschedular basis, for the period prior to December 29, 2017.  

The Board acknowledges that while the Court only remanded the issue for adjudication of entitlement to a TDIU, the Board finds the Veteran's claim for a higher staged rating for bilateral hearing loss to be on appeal as well. 

VA received notice in September 2021, that the Appellant had died in August 2021, i.e. during the pendency of the appeal.  In November 2021, the Board received confirmation from Social Security Administration (SSA) verifying the Appellant's death.

As a matter of law, Appellants' claims do not survive their deaths.  Therefore, this appeal 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 (listed on the first page of this decision). 38 C.F.R. § 3.1010(b).

 

 

Marissa Caylor

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Smith, 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.