Citation Nr: 21008952
Decision Date: 02/18/21	Archive Date: 02/18/21

DOCKET NO. 17-16 853A
DATE: February 18, 2021

ORDER

The claim of entitlement to service connection for sleep apnea is dismissed.

The claim of entitlement to service connection for diabetes mellitus, type II is dismissed.

The claim of entitlement to service connection for left ear hearing loss is dismissed.

The claim of entitlement to service connection for right ear hearing loss is dismissed.

The claim of entitlement to an initial rating in excess of 20 percent for left acromioclavicular and glenohumeral joint osteoarthritis is dismissed.

The claim of entitlement to an initial rating in excess of 20 percent for right acromioclavicular and glenohumeral osteoarthritis is dismissed.

The claim of entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) is dismissed.

FINDING OF FACT

On January 27, 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

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans’ 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).

The Board recognizes that the Veteran’s surviving spouse filed a January 2021 VA 21-0966 Intent to File Form; however, the Agency of Original Jurisdiction (AOJ) has not yet ruled on whether the surviving spouse can be substituted as the claimant in the current appeal.  If the surviving spouse is substituted as the claimant by the AOJ, then the appeal will be returned to the Board. 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Shauna M. Watkins, 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.