Citation Nr: 21009832
Decision Date: 02/23/21	Archive Date: 02/23/21

DOCKET NO. 20-27 285
DATE: February 23, 2021

ORDER

The appeal 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

The Veteran served on active duty from December 1979 February 1985. 

This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 Regional Office (RO) rating decision.  In pertinent part, the RO denied service connection for bilateral flat feet, chest pain, COPD, hearing loss, right and left elbow conditions, right and left hand arthritis in the DIP joints, right and left knee conditions, a psychiatric disorder, and sleep apnea; and, confirmed a previously assigned 10 percent rating for service-connected degenerative disc disease of the thoracolumbar spine.  The Veteran’s notice of disagreement (NOD) was received in August 2018.  The RO issued a statement of the case (SOC) in April 2020.  The Veteran’s VA Form 9, substantive appeal to the Board, was received in June 2020.

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 appellant’s death.  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  

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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).

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Berry, 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.