Citation Nr: 21073897 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 21-00 517 DATE: December 13, 2021 ORDER Entitlement to a rating in excess of 30 percent for Crohn's disease with abdominal scar, status post-hemicolectomy and laparoscopic lysis is dismissed. REFERRED In November 2021, the Veteran's surviving spouse filed a VA Form 21P-0847 (Request for Substitution of Claimant Upon Death of Claimant). To date, the Agency of Original Jurisdiction (AOJ) has not taken any action on this request. This matter is referred for appropriate action by the AOJ. FINDING OF FACT Prior to the promulgation of a decision on the appeal, the Board received notice that 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 from August 1970 to August 1972. He died in November 2021. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, an appellant's claims do not survive his or her 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 appellant 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(s) brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. In this regard, we cannot delay the adjudication of this case further than has already been done. 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. 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 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). In November 2021, the Veteran's surviving spouse filed a VA Form 21P-0847 (Request for Substitution of Claimant Upon Death of Claimant). The AOJ has not taken action on that request. The AOJ must make the initial substitution eligibility determination and provide written notice of that decision. 38 C.F.R. § 3.1010 (e)(1). Indeed, as the matters on appeal were already certified to the Board for appellate review at the time of Veteran's death, the only proper course of action is to dismiss the Veteran's appeal and have the case returned to the AOJ for a determination on substitution and consideration of the appeal, if substitution is granted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.