Citation Nr: 21005315
Decision Date: 02/01/21	Archive Date: 02/01/21

DOCKET NO. 18-18 755
DATE: February 1, 2021

ORDER

The appeal is dismissed. 

FINDING OF FACT

On January 5, 2021, the Board was notified that the appellant passed away in December 2020.

CONCLUSIONS OF LAW

1.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for an earlier effective date prior to June 23, 2015 for the award of a 20 percent rating for residuals of a pubic bone fracture. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

2.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal for an earlier effective date prior to February 22, 2016 for the award of a 30 percent rating for a right elbow disorder with limited flexion. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

3.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal for an earlier effective date prior to February 22, 2016 for the award of a 20 percent rating for a right elbow disorder with limited pronation. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

4.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal for an earlier effective date prior to February 22, 2016 for the award of a noncompensable (zero percent) rating for limited extension of the right hip. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

5.  Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal for an earlier effective date prior to February 22, 2016 for the award of a 20 percent rating for right knee instability. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

Unfortunately, the Veteran passed away during the pendency of the appeal. As a matter of law, appellants’ 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 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 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 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. 38 C.F.R. § 3.1010(b).

 

 

V. Chiappetta

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Thompson, 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.