Citation Nr: 21010270
Decision Date: 02/24/21	Archive Date: 02/24/21

DOCKET NO. 17-16 970
DATE: February 24, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

The Veteran died in January 2021, during the pendency of this appeal.

CONCLUSION OF LAW

Because of the Veteran’s death, the Board has no jurisdiction to adjudicate the merits of this claim at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; but see 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1010, 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1972 to October 1975.  This matter comes before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision, which, in relevant part, denied a claim of a higher rating and earlier effective date for the right knee and a claim of service connection for the left knee.  These claims were later perfected to the Board with VA’s receipt of timely Form 9 in April 2017.

Unfortunately, the Veteran died in January 2021, during the pendency of this 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 therefore has become moot by virtue of the Veteran's death and accordingly 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.

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 this claim to completion.  See 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1010, 20.1302.

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A request for substitution must be filed with the agency of original jurisdiction (AOJ) not later than one year after the date of the appellant’s death.  38 C.F.R. §§ 3.1010(b), 20.1302(a).  If the AOJ grants the request to substitute, the case will assume its original place on the Board’s docket.  38 C.F.R. §§ 20.1302(a), 20.900(a)(2). 

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P. López, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.