Citation Nr: 21012113
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 18-18 271
DATE: March 3, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed.

FINDING OF FACT

VA was notified of the death of the Veteran in January 2021.

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 (2012); 38 C.F.R. § 20.1302 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served active duty from July 1965 to April 1968 and August 1971 to June 1978.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, a Veteran’s claims do not survive death.  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; 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 notes that the Veteran’s surviving spouse filed a separate claim for dependency and indemnity compensation benefits in January 2021.  In a January 2021 rating decision, the RO granted service connection for the cause of the Veteran’s death and basic eligibility to Dependents’ Educational Assistance. Nevertheless, the Veteran’s surviving spouse has not been substituted as the appellant for the outstanding issues as of the date of this decision.  

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.  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.  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. 

(Continued on the next page)

 

Accordingly, the appeal as to the issue of entitlement to TDIU is dismissed.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K.M. Walker

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.