Citation Nr: 21006440
Decision Date: 02/04/21	Archive Date: 02/04/21

DOCKET NO. 18-13 237
DATE: February 4, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for gallbladder removal is remanded is dismissed.

FINDING OF FACT

On January 6, 2021 the Board was notified that the appellant died in January 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) (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1951 to May 1955.  This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  A February 2019 Board decision denied an increased rating for gallbladder removal, and the Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court).  The parties submitted a Joint Motion for Partial Remand (JMPR) in January 2020, asking that the February 2019 Board decision be vacated only as it pertained to the issue of an increased rating for gallbladder removal.  In February 2020, the Court granted the JMPR and remanded the issue on appeal for readjudication in accordance with instructions set out in the JMPR.  An August 2020 Board decision then remanded the issue on appeal for further development.

The Board notes that the February 2019 Board decision also remanded the issues of an increased rating for a right hip disability and service connection for post-traumatic stress disorder.  Those issues were subsequently denied in a November 2019 Board decision and thus are not before the Board at this time.

Unfortunately, the appellant 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); 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).

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Arnold

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.