Citation Nr: 21006108
Decision Date: 02/03/21	Archive Date: 02/03/21

DOCKET NO. 16-09 473
DATE: February 3, 2021

ORDER

The appeal as to the issue of entitlement to special monthly compensation (SMC) based upon the need for aid and attendance and/or housebound status is dismissed.

FINDING OF FACT

On January 14, 2021, the Department of Veterans Affairs (VA) was notified that the Veteran died on January [REDACTED], 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

Unfortunately, the Veteran (appellant), who served on active duty in the United States Army from August 1955 to November 1957, died 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).  Accordingly, this appeal on the merits has become moot by virtue of the death of the Veteran 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 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.  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 Agency of Original Jurisdiction (AOJ) not later than one year after the date of the Veteran’s death.  38 C.F.R. §§ 3.1010(b), 20.1302(a).  If the AOJ grants the request to substitute, the case will assume its original place on the Board’s docket.  38 C.F.R. §§ 20.1302(a), 20.900(a)(2).  

 

 

S. BUSH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Asante

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.