Citation Nr: 21010090
Decision Date: 02/24/21	Archive Date: 02/24/21

DOCKET NO. 19-00 823
DATE:   February 24, 2021

ORDER

1. The issue of entitlement to an effective date earlier than September 24, 2018, for a disability rating of 60 percent for residuals of prostate cancer, status-post cysto-prostatectomy (prostate cancer residuals) is dismissed. 

2. The issue of entitlement to a disability rating in excess of 60 percent for prostate cancer residuals is dismissed. 

3. The issue of entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus is dismissed.

4. The issue of entitlement to an initial disability rating in excess of 30 percent for diabetic nephropathy with hypertension since October 13, 2016, is dismissed. 

5. The issue of entitlement to an initial compensable disability rating for a residual scar of the mid-abdomen is dismissed.

FINDING OF FACT

On February 9, 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 had active duty from January 1964 to January 1967. 

The Veteran and his wife testified virtually before the undersigned Veterans Law Judge (VLJ) during a May 2020 Board hearing. A transcript of the hearing is included in the claims file. 

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 is 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. 38 C.F.R. § 3.1010(b).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Hodzic, 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.