Citation Nr: 21012211
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 16-15 076A
DATE: March 3, 2021

ORDER

The appeal is dismissed.  

FINDING OF FACT

In February 2021, the Board was notified that the Veteran had died that month.

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(a); 38 C.F.R. § 20.1302.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from August 1965 to August 1968.  He died in February 2021.  

In October 2012, the RO granted service connection for left shoulder degenerative changes, evaluated as 10 percent disabling.  In March 2013, the RO granted a claim for an increased rating for residuals of gunshot wound/shrapnel wound to the neck area (previously characterized as a cervical spine condition), to the extent that it assigned a 20 percent rating.  The Veteran appealed the issues of entitlement to an initial evaluation in excess of 10 percent for a left shoulder disability, and entitlement to a rating in excess of 20 percent for a cervical spine disability.  In September 2018, the Board remanded the claims for additional development.  At that time, the Board also determined that the issue of entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) had been raised, and remanded the TDIU issue for additional development.  Citing Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009).  

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, Veterans’ 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).  

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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).

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T.S.E., 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.