Citation Nr: 21010594
Decision Date: 02/25/21	Archive Date: 02/25/21

DOCKET NO. 18-43 655
DATE: February 25, 2021

ORDER

Whether new and material evidence has been received to reopen the claim for service connection for degenerative arthritis of lumbar spine is dismissed.

FINDING OF FACT

In January 2021, the Department of Veterans Affairs (VA) was notified that the Veteran died in December 2020, during the pendency of the appeal.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board of Veterans’ Appeals (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 from July 1980 to July 1983.

This matter is before the Board on appeal from a May 2016 rating decision issued by a VA Regional Office (RO).

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.  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 the claim to completion.  Such request must be filed not later than one year after the date of the appellant’s death.  See 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; see 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).

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Christensen

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.