Citation Nr: 21008945
Decision Date: 02/18/21	Archive Date: 02/18/21

DOCKET NO. 19-18 577
DATE: February 18, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder is dismissed.

Entitlement to an initial rating in excess of 20 percent for residuals of prostate cancer is dismissed.

Entitlement to service connection for a respiratory condition is dismissed.

FINDING OF FACT

In January 2021, the Department of Veterans Affairs (VA) was notified that the Veteran died earlier that month.

CONCLUSION OF LAW

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

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from February 1966 to November 1967.

The Veteran’s appeal comes to the Board of Veterans’ Appeals (the Board) from a June 2018 rating decision by a VA Regional Office (RO). He perfected his appeal in July 2019.

Unfortunately, on January 11, 2021, VA acknowledged receipt of notice that the Veteran had died earlier that month.  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).  Accordingly, the Veteran’s death moots this appeal, and it must be dismissed as to all issues 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.  Moreover, 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 RO responsible for the June 2018 rating decision.  38 C.F.R. § 3.1010(b).

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MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Douglas M. Humphrey, 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.