Citation Nr: 21011477
Decision Date: 03/02/21	Archive Date: 03/01/21

DOCKET NO. 18-25 787
DATE: March 2, 2021

ORDER

The appeal of the issue of entitlement to ratings for bilateral peripheral neuropathy of the right and left lower extremities in excess of 10 percent for each extremity is dismissed.

The appeal of the issue of entitlement to special monthly compensation (SMC) based on the need for aid and attendance is dismissed.

The appeal of the issue of entitlement to ratings for bilateral radiculopathy with peripheral neuropathy of the right and left upper extremities in excess of 10 percent for each extremity is dismissed.

FINDING OF FACT

The Veteran died in January 2021 during the pendency of the appeal.

CONCLUSION OF LAW

Due to the death of the appellant, 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, 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1974 to October 1988.

In June 2016, the Regional Office continued the 10 percent evaluations of peripheral neuropathy of the right and left lower extremities, denied entitlement to special monthly compensation based on aid and attendance/housebound, and denied service connection for left and right shoulder/hand pain. The Veteran properly appealed the issues.

The Veteran testified before the undersigned in a virtual hearing in September 2020. At the hearing the Veteran and his representative clarified that his claim that was construed as service connection for right and left shoulder/hand pain was actually intended as a claim for increased ratings for his service-connected radiculopathy with neuropathy of the left and right upper extremities (10 percent for each extremity). The Board accepted jurisdiction of these issues at the hearing and has recharacterized the issue accordingly in this Order.

Unfortunately, the Veteran died in January 2021, 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 of Veterans’ Appeals (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).

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Bristor

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.