Citation Nr: 21008457
Decision Date: 02/17/21	Archive Date: 02/17/21

DOCKET NO. 16-11 117A
DATE: February 17, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

In February 2021, the Board of Veterans’ Appeals (Board) received notification that the appellant had 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); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from October 1985 to August 1987.  He died in April 2017.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015, January 2016, and August 2016 rating decisions.  

In June 2018, the Board remanded the case for the agency of original jurisdiction (AOJ) to address the threshold issue of whether the appellant was entitled to recognition as the Veteran’s surviving spouse in light of newly obtained evidence.  In an October 2018 administrative decision, the AOJ recognized the appellant as the Veteran’s surviving spouse. 

In May 2019 and March 2020, the Board remanded the case for further development.  The case has since been returned to the Board for appellate review.  

The Board notes that the appellant appointed a new representative prior to recertification of the appeal.  The appropriate VA forms are associated with the claims file.

Law and Analysis

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. 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 appellant. 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.W. ZISSIMOS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Wulff, 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.