Citation Nr: 21011891
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 17-46 179
DATE: March 3, 2021

ORDER

Due to the death of the appellant, the claim of entitlement to special monthly compensation based on the need for aid and attendance or by reason of being housebound is dismissed.

FINDING OF FACT

On July 9, 2020, the Board was notified that the appellant died on July [REDACTED], 2020.

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 appellant served on active duty from February 1948 to September 1968.  Unfortunately, the appellant died on July [REDACTED], 2020, while his appeal was pending 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In a December 2019 decision, the Board denied the claim for entitlement to special monthly compensation based on the need for aid and attendance or by reason of being housebound.  A decision by the United States Court of Appeals for Veterans Claims (Court) in November 2019 vacated the December 2019 Board decision. It was noted that the appellant had died while the appeal was pending with the Court and there was not yet a substituted claimant.

The appeal was returned to the Board. Unfortunately, the appellant died during the pendency of the appeal and, 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 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).

 

C.A. SKOW

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Krunic, 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.