Citation Nr: 21008699
Decision Date: 02/17/21	Archive Date: 02/17/21

DOCKET NO. 18-47 151
DATE:   February 17, 2021

ORDER

The appeal as to a rating in excess of 10 percent for residuals, right ankle sprain with degenerative joint disease, osteopenia and lateral collateral ligament strain with ankle fracture s/p ORIF (previously evaluated under DC 5271), for the period from October 1, 2015 to July 24, 2018 is dismissed.

FINDING OF FACT

The Veteran died on January [REDACTED], 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 had active service from April 1976 to April 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran died during the pendency of the appeal. See January 2021 correspondence and SSA Profile and Benefit Data. 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).

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Black, Associate 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.