Citation Nr: 21077405
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 20-07 292
DATE: December 29, 2021

ORDER

1. Entitlement to an initial rating in excess of 10 percent for diabetic retinopathy with cortical cataract, left eye is dismissed.

2. Entitlement to service connection for anemia, to include as due to herbicide exposure is dismissed.

3. Entitlement to service connection for a blood disability, to include as due to herbicide exposure and/or secondary to anemia is dismissed.

4. Entitlement to service connection for a spleen disability, to include as due to herbicide exposure and/or secondary to anemia is dismissed.

5. Entitlement to service connection for a liver disability, to include as due to herbicide exposure and/or secondary to anemia is dismissed.

6. Entitlement to service connection for a skin disability, to include as due to herbicide exposure is dismissed.

FINDING OF FACT

On December 7, 2021 the Board was notified that the appellant died in November 2021.

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 in the Marine Corps from January 1964 to September 1966. He died in March 2021. The substitute appellant was his surviving spouse, and she was designated as substitute claimant for the increased rating and service connection claims on appeal. She died in November 2021.

Unfortunately, the substitute appellant died during the pendency of the appeal. As a matter of law, an appellant's claims do not survive his/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 of all the issues on appeal have become moot by virtue of the death of the appellant 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 these appealed issues 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 substitute appellant's death. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (g)(5).

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 (2012); 38 C.F.R. § 3.1010 (a), (g)(5). 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).

As is the case here, when a substitute appellant dies while an appeal of a claim is pending before the Board, another member of the same joint class or a member of the next preferred subordinate category listed in § 3.1000(a)(1) through (5) may substitute for the deceased substitute, only if the person requesting the successive substitution files the request for substitution no later than one year after the date of the substitute appellant's death. 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 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica

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