Citation Nr: 21009733
Decision Date: 02/23/21	Archive Date: 02/23/21

DOCKET NO. 17-17 236A
DATE: February 23, 2021

ORDER

Entitlement to a rating higher than 30 percent for right knee replacement is dismissed.

Entitlement to a compensable rating for bilateral hearing loss is dismissed.

FINDING OF FACT

In February 2021 the Board was notified by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio, that the Veteran passed away in January 2021.

CONCLUSIONS OF LAW

1. The criteria for dismissal of entitlement to a rating higher than 30 percent for right knee replacement have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for dismissal of entitlement to a compensable rating for bilateral hearing loss have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGAND CONCLUSIONS

The Veteran had active duty service in the United States Air Force from November 1972 to November 1978.  He passed away in January 2021.

Dismissal

Entitlement to a rating higher than 30 percent for right knee replacement; entitlement to a compensable rating for bilateral hearing loss. 

Unfortunately, the Veteran died during the pendency of his 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.  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.  

To date, VA has not yet received an application for substitution.  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 Veteran for purposes of processing the claim to completion.  Such request must be filed no later than one year after the date of the Veteran’s death.  See 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; see 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).   

 

H.M. WALKER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Martha R. Luboch, 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.