Citation Nr: 21006583
Decision Date: 02/04/21	Archive Date: 02/04/21

DOCKET NO. 18-47 766
DATE: February 4, 2021

ORDER

The issue of restoration of 100 percent rating for prostate cancer and benign prostatic hypertrophy with lower urinary tract symptoms, including whether reduction from 100 percent to 60 percent was proper, is dismissed.

FINDING OF FACT

Prior to adjudication of the appeal by the Board, VA was notified that the Veteran died in January 2021. 

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, who was the appellant, served on active duty from January 1969 to January 1971.  The Veteran died in January 2021.

The issue of restoration of 100 percent rating for prostate cancer and benign prostatic hypertrophy with lower urinary tract symptoms, including whether reduction from 100 percent to 60 percent was proper, is dismissed.

Prior to adjudication of the appeal by the Board, the Veteran died in January 2021, 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 eteran 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.  Such request must be filed not later than one year after the date of the appellant’s death.  See 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; 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 VA office from which the claim originated.  38 C.F.R. § 3.1010(b). 

 

 

J. PARKER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Choi, 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.