Citation Nr: 21009919 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-28 904 DATE: February 23, 2021 ORDER The issue of whether the award of attorney fees based on past due benefits granted in an April 2018 rating decision were properly generated and allocated, is dismissed. FINDING OF FACT In February 2021, the Board was notified that the Veteran died during the pendency of the appeal, in January 2021. CONCLUSION OF LAW Due to the death of the appellant, 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 in the United States Army from September 1955 to September 1958, in the United States Navy from January 1959 to December 1962, and in the United States Air Force from January 1964 to August 1979. In March 2018, the Board of Veterans' Appeals (Board) granted a 100 percent disability rating for the Veteran’s service-connected lung cancer from June 21, 2008 to December 20, 2008. An April 2018 rating decision effectuated that grant. In May 2018, the appellant and his attorney were notified that the attorney was entitled to fees based on the past due benefits awarded to the Veteran pursuant to the April 2018 rating decision’s assignment of a 100 percent rating for the service-connected lung cancer from June 21, 2008 through December 20, 2008. In July 2018, the attorney fees in the amount of 20 percent of past due benefits were paid to the attorney. The Veteran’s notice of disagreement (NOD) with the payment of fees to his attorney was received in August 2018. The RO issued the statement of the case (SOC) in July 2020 and the Veteran’s VA Form 9 substantive appeal was received in July 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 appellant 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). 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 in this decision). 38 C.F.R. § 3.1010(b). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.