Citation Nr: 21009222
Decision Date: 02/19/21	Archive Date: 02/19/21

DOCKET NO. 08-37 859
DATE: February 19, 2021

ORDER

Entitlement to service connection for a left knee disorder, to include as secondary to service-connected degenerative joint disease, right knee, with history of stress fracture and status post lateral meniscectomy, is dismissed.

FINDING OF FACT

In February 2021, VA received confirmation from the Social Security Administration that the Veteran died in December 2020.

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 duty service in the United States Navy from January 1965 to March 1966, and in the United States Army from October 1981 to January 1984.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision. 

In decisions dated in September 2010 and May 2013, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and adjudication.  In an October 2014 decision, the Board denied the Veteran’s service connection claim for a left knee disorder.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2015 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand.

In a November 2015 decision, the Board remanded the case once more to the AOJ.  In a February 2020 decision, the Board denied entitlement to service connection for a left knee disorder.  The Veteran appealed that decision to the Court.  In an October 2020 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand.

Unfortunately, the Veteran died during the pendency of the appeal.  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.  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 Veteran’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).

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K.C. Spragins, 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.