Citation Nr: 21075447
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 18-55 086
DATE: December 20, 2021

ORDER

Entitlement to service connection for lower back condition is dismissed.

Entitlement to service connection for left eye condition is dismissed.

Entitlement to service connection for right eye condition is dismissed.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed.

Entitlement to service connection for depression is dismissed.

Entitlement to service connection for left knee replacement is dismissed.

Entitlement to service connection for right knee replacement is dismissed.

Entitlement to service connection for bilateral teeth (upper and lower) is dismissed.

Entitlement to service connection for bowel condition is dismissed.

FINDING OF FACT

On November 22, 2021 the Board was notified by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas, 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 in the United States Army from November 1943 to April 1946.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c).  38 U.S.C. § 7107(a)(2).

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, appellants' claims do not survive their deaths. See 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). Therefore, this appeal must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

There are, however, provisions in place to allow for an eligible person to take the Veteran's place in his appeal in order to get a final decision.  This process is called substitution.  Here, notice regarding survivor benefits and substitution was provided to the estate of the appellant in November 2021.  However, no request for substitution has been submitted.

A request to be substituted must be filed within one year of the Veteran's death.  38 C.F.R. § 3.1010(b).  Please note that only certain persons are eligible for substitution.  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 Veteran should file a request for substitution with the VA office from which the claim originated (listed on the first page of this decision). See 38 C.F.R. § 3.1010 (b).

 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Thaddaeus J. Cox, 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.