Citation Nr: 21006803
Decision Date: 02/05/21	Archive Date: 02/05/21

DOCKET NO. 20-23 653
DATE: February 5, 2021

ORDER

Entitlement to a compensable rating for bilateral hearing loss is dismissed.

Entitlement to service connection for tremors in both hands is dismissed.

Entitlement to a disability rating in excess of 10 percent for tinnitus is dismissed.

Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for diabetes mellitus type II is dismissed.

Entitlement to service connection for left arm cancer is dismissed.

Entitlement to service connection for right arm skin cancer is dismissed.

FINDING OF FACT

In January 2021, VA received confirmation from the Social Security Administration that the Veteran died in December 2020.

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

The Veteran had active duty service in the United States Air Force from January 1968 to January 1972.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision.

Unfortunately, the Veteran 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 Veteran 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.  While the Board observes that an Application for Burial Benefits, VA Form 21P-530, was received in January 2021, there has been no request to substitute filed yet, or any claim that could be so construed.  38 C.F.R. § 3.1010(c)(2).  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).

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K.C. Spragins, 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.