Citation Nr: 21011429
Decision Date: 03/01/21	Archive Date: 03/01/21

DOCKET NO. 191030-42687
DATE: March 1, 2021

ORDER

The appeal for the issue of entitlement to service connection for type II diabetes mellitus is dismissed.

The appeal for the issue of entitlement to service connection for ischemic heart disease is dismissed.

The appeal for the issue of entitlement to service connection for residuals of ischemic vascular surgery, to include a right leg disability, is dismissed.

The appeal for the issue of entitlement to service connection for residuals of colon cancer surgery is dismissed.

FINDING OF FACT

In February 2021, the Board of Veterans’ Appeals (Board) received notification that the Veteran had died in December 2020.

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 served on active duty from April 1969 to February 1973 and from January 1975 to April 1977.

This case comes before the Board on appeal from a January 2019 rating decision by the Department of Veterans Affairs (VA) under its modernized review system.  See Veterans Appeals Improvement and Modernization Act (AMA), Pub. L. No. 115-55, 131 Stat. 1105 (2017); VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (Jan. 18, 2019) with applicability provisions under 38 C.F.R. §§ 3.2400 and 19.2; see also March 2018 Rapid Appeals Modernization Program (RAMP) opt-in form and October 2019 Board notice of disagreement.

In a May 2020 decision, the Board denied the above claims.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In October 2020, the Court granted a Joint Motion for Remand filed by the parties and remanded the case to the Board.  

Unfortunately, the Veteran 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 Veteran 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 Veteran’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).

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Postek, 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.