Citation Nr: 21010468 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-15 044 DATE: February 24, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is dismissed. FINDING OF FACT On October 13, 2020, the Board was notified that the appellant died in September 2020. 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 with the United States Navy from June 1975 to June 1979; and June 1980 to June 1995; he is credited with a year of inactive duty as a member of the Reserves from 1979 to 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). Notably, in the October 2018 notice of disagreement (NOD) appealing the increased rating claim for hearing loss, the Veteran also attempted to appeal a service connection claim for chronic back pain that had been denied in a January 2012 rating decision. In January 2020, the Veteran was notified that the appeal for the chronic back pain issue was not timely, and therefore not effective. Although he attempted to perfect the chronic back pain issue in the March 2020 VA Form 9, this issue is not currently before the Board. Unfortunately, the appellant 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. 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). Furthermore, on the March 2020 VA Form 9, the Veteran had elected a Board hearing. Pursuant to 38 C.F.R. § 20.1302(b)(1), if a hearing request is pending when the appellant dies, the agency of original jurisdiction may take action on a request to substitute without regard to whether the pending appeal has been dismissed by the Board, if the request is submitted in accordance with 38 C.F.R. § 3.1010. If a substitution request is granted, the Board may take the testimony of the substitute at a hearing. 38 C.F.R. § 20.1302(b)(2). 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. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.