Citation Nr: 21009169
Decision Date: 02/19/21	Archive Date: 02/19/21

DOCKET NO. 18-35 420
DATE: February 19, 2021

ORDER

Entitlement to service connection for a lung condition, to include Asbestosis, is dismissed.

The Veteran’s petition to reopen a claim of entitlement to service connection for a right hip condition is dismissed.

FINDING OF FACT

In April 2020, the Department of Veterans Affairs (VA) was notified that the Veteran died on March [REDACTED], 2020.

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 January 1956 to November 1959.

This matter comes before the Board on appeal from rating decisions in February 2015 and February 2017 by VA Regional Office (RO) in Seattle, Washington.  

Unfortunately, on April 13, 2020, VA acknowledged receipt of notice that the Veteran had died in March 2020.  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.