Citation Nr: 21011872
Decision Date: 03/02/21	Archive Date: 03/02/21

DOCKET NO. 19-00 634A
DATE: March 2, 2021

ORDER

Revision of an August 1959 rating decision denying an initial compensable rating for lumbar spine arthralgia on the grounds of clear and unmistakable error (CUE) is dismissed.

 

FINDING OF FACT

The Veteran died in December 2020, prior to the issuance of a final Board decision.

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; 38 C.F.R. § 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1954 to November 1956.  

The case is on appeal from a March 2016 rating decision.

In a February 2020 decision, the Board denied revision of an August 1959 rating decision on the basis of CUE.  The Veteran appealed the decision to the United States Court of Appeal for Veterans Claims (Court) and, in October 2020, the parties to this appeal entered into a Joint Motion for Remand (Joint Motion), in which the parties agreed that the Board’s decision should be vacated.  The Court granted the Joint Motion in an Order issued later in October 2020.

Revision of an August 1959 rating decision denying an initial compensable rating for lumbar spine arthralgia on the grounds of CUE.

Unfortunately, the Veteran died during the pendency of the appeal.  In February 2021, prior to a Board decision on the matter, a Social Security Administration database record was associated with the claims file that shows the Veteran passed away in December 2020.  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 appellant’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).

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Jimerfield

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.