Citation Nr: 21011938
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 15-06 178A
DATE: March 3, 2021

ORDER

1. Service connection for sleep apnea is dismissed.

2. Service connection for traumatic brain injury residuals is dismissed.

3. Service connection for an acquired psychiatric disorder is dismissed.

4. An increased rating in excess of 10 percent for lumbar facet arthropathy with degenerative disc disease, prior to April 20, 2017, is dismissed.

5. An increased rating in excess of 40 percent for lumbar facet arthropathy with degenerative disc disease, from April 20, 2017, is dismissed.

6. A total disability rating based on individual unemployability is dismissed. 

FINDING OF FACT

In September 2020, the Board was notified that the Appellant had passed away in November 2019, before a decision by the Board was issued on the appeal. 

CONCLUSION OF LAW

Due to the death of the Appellant, the Board currently has no jurisdiction to adjudicate the merits of this appeal.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1302 (2018); but see 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1975 to April 1976.  The Veteran passed away in February 2018.  The Appellant was the Veteran’s surviving spouse.  The Appellant passed away in November 2019.  

This matter originally came before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  A July 2019 Board decision denied the Appellant’s claims.  That decision was appealed to the United States Court of Appeals for Veteran Claims (CAVC), where a November 2020 decision vacated the July 2019 Board decision and dismissed the appeal due to the Appellant’s death.  The matter is again before the Board.

Unfortunately, the Appellant passed away 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 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).

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Dougan, Associate 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.