Citation Nr: 21011270 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-29 193 DATE: March 1, 2021 ORDER Entitlement to a rating higher than 40 percent for ankylosing spondylitis of the lumbar spine and sacroiliac joints is dismissed. Entitlement to a rating higher than 20 percent for right lower extremity radiculopathy, to include an earlier effective date, is dismissed. Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy, to include an earlier effective date, is dismissed. Entitlement to an effective date for a total disability rating based on individual unemployability (TDIU), earlier than May 21, 2016, is dismissed. FINDING OF FACT In January 2021, the Department of Veterans Affairs (VA) was notified that the Veteran died in January 2021. CONCLUSION OF LAW Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the 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 March 1972 to June 1974. He died on January [REDACTED], 2021. This case comes to the Board of Veterans’ Appeals (Board) from an August 2016 rating decision of the VA Regional Office. The Veteran submitted a Notice of Disagreement in October 2016, and a Statement of the Case was issued in February 2020. Because the Statement of the Case had been sent to the incorrect address for the Veteran’s attorney, the Statement of the Case was resent in August 2020. In August 2020, the submitted a Form 9 Substantive Appeal which perfected an appeal of the issues listed above. The Board notes that the Veteran, through his representative, also submitted a Form 9 Substantive Appeal in October 2020 for the issues of entitlement to higher ratings for a cervical spine disability and bilateral hand arthritis and for service connection for bilateral shoulder and knee disabilities. This appeal was not timely, and the Veteran and his attorney received notice that the appeal was not accepted in October 2020. In February 2021, the Board issued a decision under Docket Number 20-02157 which dismissed the Veteran’s separate appeal of entitlement to a compensable rating for a thoracic surgery scar. 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. 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). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.