Citation Nr: 21007804
Decision Date: 02/10/21	Archive Date: 02/10/21

DOCKET NO. 20-03 307
DATE: February 10, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

On January 19, 2021, the Board 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 at this time. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1965 to March 1969.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board remanded the issues on appeal for additional development in August 2020, which was completed on October 6, 2010. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the issue of service connection for headaches in August 2020 and while on remand service connection for that disability was granted in a November 2020 rating decision. As this constitutes a full grant of the benefits sought, that issue is no longer before the Board. Ab v. Brown, 6 Vet. App. 35 (1993).

In August 2020 the Board also granted service connection for a psychiatric disability, and denied service connection for acid reflux, a prostate disability, hypothyroidism and erectile dysfunction and an increased rating for tinnitus. The grant of service connection constitutes a full award of the benefits sought, and the denied issues were not appealed. Id.; 38 C.F.R. § 20.1100. As such, these issues are also no longer before the Board.

Death Dismissal

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. 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).

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Wendell, 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.