Citation Nr: 21011213
Decision Date: 03/01/21	Archive Date: 03/01/21

DOCKET NO. 09-16 015
DATE: March 1, 2021

ORDER

Entitlement to service connection for migraine is dismissed.

FINDING OF FACT

1. On February 5, 2021, the Veteran’s representative filed a death certificate notifying the Department of Veterans Affairs (VA) that the Veteran died in November 2020.

2. The representative requested the Veteran’s spouse be substituted in the Veteran’s claim.

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 military service between September 1960 and September 1961. 

The matter comes on appeal comes before the Board from a February 2011 rating decision.

Unfortunately, in February 2021 the Board was informed through the Veteran’s representative, and through a Social security Administration inquiry that the veteran died in November 2020.As a matter of law, Veteran’s 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 must be 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 the appeals or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106. 

The Board acknowledges the fact that the Veteran’s widow has applied to be substituted for the Veteran. However, the Board notes that a decision on whether the Veteran’s widow is the appropriate substitute has not yet been determined. To date, a review of the claims file does not show that this decision has been reached. VA regulations, 38 C.F.R. § 20.1302(a), specifically requires the Board to dismiss pending appeals in which the appellant had died. The Board may not adjudicate claims for substitution in the first instance.   If the agency of original jurisdiction grants the request to substitute, the case will assume its original place on the docket pursuant to Rule 900, 38 C.F.R. § 20.900(a)(2).    

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Johnson, 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.