Citation Nr: 21012182
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 18-12 730
DATE: March 3, 2021

ORDER

The appeal of the claims for entitlement to service connection for anxiety and posttraumatic stress disorder (PTSD) is dismissed.

FINDING OF FACT

The evidence shows that the Veteran died in December 2020, while his appeal was pending on the claims of entitlement to service connection for anxiety and PTSD.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to review the appeal. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from September 1968 to August 1970, to include service in the Republic of Vietnam.

The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2020.  At the hearing, the undersigned VLJ grated the motion of the Veteran’s attorney to hold the record open for a period of 60 days.

The evidence shows that the Veteran died in December 2020, while his appeal was pending on the claims of entitlement to service connection for anxiety and PTSD.

As the Veteran died during the pendency of the appeal, as a matter of law, the appeal does not survive his death, and the appeal must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302; Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Landicho v. Brown, 7 Vet. App. 42, 53-54 (1994).

The Board’s dismissal of the 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.  38 U.S.C. § 5121A; see 79 Fed. Reg. 52977, 52982 (Sept. 5, 2014) (to be codified at 38 C.F.R. § 3.1010) (addressing eligibility for substitution, how an eligible survivor makes a request to substitute, a substitute’s rights in adjudication, limitations related to substitution, and order of preference among eligible survivors).

An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the RO from that the claim originated, which is listed on the first page of this decision.

 

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Joshua R. Castillo, 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.