Citation Nr: 21009180
Decision Date: 02/19/21	Archive Date: 02/19/21

DOCKET NO. 10-07 548
DATE: February 19, 2021

ORDER

Entitlement to waiver of indebtedness is dismissed.

FINDING OF FACT

In January 2021, the Board was notified that the Veteran died in January 2021, during the pendency of his appeal before a decision by the Board was issued.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board does not have 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 served on active duty from February 1966 to June 1967. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 Department of Veterans Affairs (VA) Regional Office (RO) Decision on Waiver of Indebtedness.  

Unfortunately, the Veteran died during the pendency of the appeal prior to the promulgation of a decision in the appeal. In a Report of First Notice of Death (VA Form 27-0830a) dated January 2021, VA received notice that the Veteran died in January 2021. VA received additional confirmation from the Social Security Administration (SSA) in January 2021 that the Veteran died in January 2021. 

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 Veteran and must be dismissed for lack of jurisdiction. 8 U.S.C. §7104 (a); 38 C.F.R. § 20.1302.

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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 (listed on the first page of this decision). 38 C.F.R. § 3.1010 (b).

 

 

Jennifer White

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Susan Leary, 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.