Citation Nr: 21011698
Decision Date: 03/02/21	Archive Date: 03/02/21

DOCKET NO. 16-43 740
DATE: March 2, 2021

ORDER

The appeal of the issue of entitlement to service connection for sleep apnea is dismissed.

The appeal of the issue of entitlement to service connection for chronic sinusitis or rhinitis is dismissed.

The appeal of the issue of entitlement to service connection for bronchitis is dismissed.

The appeal of the issue of entitlement to service connection for retention of carbon dioxide is dismissed.

The appeal of the issue of entitlement to service connection for diaphragm paralysis is dismissed.

The appeal of the issue of entitlement to special monthly compensation due to the need for aid and assistance of another or being housebound due to service-connected disabilities is dismissed.

FINDING OF FACT

On February 5, 2021, the Board was notified that the Veteran died in November 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 in the United States Army from September 1960 to September 1961.

This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900(c); 38U.S.C. §7107 (a)(2).

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 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (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 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.  Any 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 38 U.S.C. § 5121(a).  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).

The Board acknowledges that, in this matter, the Veteran’s surviving spouse may have filed a request for substitution with the VA. However, because that issue has not been adjudicated by VA at the time of this decision, the Board must dismiss this appeal for lack of jurisdiction. The dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the Veteran for purposes of processing the claim to completion.

  

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Mondesir, Eric

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.