Citation Nr: 21011849
Decision Date: 03/02/21	Archive Date: 03/02/21

DOCKET NO. 18-53 531
DATE: March 2, 2021

ORDER

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is dismissed.

Entitlement to service connection for fecal incontinence, residuals of service connected prostate cancer, is dismissed.

FINDING OF FACT

The Agency of Original Jurisdiction (AOJ) was notified that the Veteran died in February 2021.

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.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1966 to October 1990. 

This matter is before the Board of Veterans’ Appeals (Board) on appeal from May 2017 and November 2017 rating decisions by a Department of Veterans Affairs Regional Office (RO).

On his substantive appeal, received in November 2018, the Veteran had requested a videoconference hearing before the Board; he died before a hearing was scheduled.  See November 2018 Form 9.  

A February 2021 Report of First Notice of Death shows the Veteran’s spouse notified VA that the Veteran died in February 2021.  See February 2021 VA Form 27-0820a, Report of First Notice of Death.  A Social Security Administration (SSA) inquiry also confirmed the Veteran’s death in February 2021.  See February 2021 Report of Death.  

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, veterans’ 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.

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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 (listed on the first page of this decision).  38 C.F.R. § 3.1010(b).

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Cheng, 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.