Citation Nr: 21010493
Decision Date: 02/25/21	Archive Date: 02/25/21

DOCKET NO. 17-36 381
DATE: February 25, 2021

ORDER

The appeal seeking service connection for left ear hearing loss, tinnitus, and a compensable rating for right ear hearing loss is dismissed. 	

FINDING OF FACT

According to the Social Security Administration (SSA), the Veteran died in January 2021, before a decision by the Board was promulgated on the matter.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction at this time to adjudicate the merits of his appeal seeking service connection for left ear hearing loss, tinnitus, and a compensable rating for right ear hearing loss. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

In February 2021, before the Board could consider the appeal, VA received notification that the Veteran had died in January 2021; his death was confirmed by the SSA, a Federal agency. In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g). As there is no evidence to the contrary, the Board accepts the finding by the SSA as proof of the Veteran’s death during the pendency of the appeal and before the Board promulgated a decision on the appeals seeking service connection for left ear hearing loss, tinnitus, and a compensable rating for right ear hearing loss. 

As the Veteran died during the pendency of the appeal, as a matter of law the appeal does not survive his death. Thus, the appeal must be dismissed for lack of jurisdiction. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; 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).  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).

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Chu, Associate 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.