Citation Nr: 21012543
Decision Date: 03/04/21	Archive Date: 03/04/21

DOCKET NO. 20-04 056
DATE: March 4, 2021

ISSUE

Entitlement to a disability evaluation greater than 30 percent for other specified trauma-stress related disorder, also claimed as PTSD and depression.

ORDER

The appeal on the issue of entitlement to a disability evaluation greater than 30 percent for other specified trauma-stress related disorder, also claimed as PTSD and depression, is dismissed.

FINDING OF FACT

On February 19, 2021, the Board was notified that the Veteran died in February 2021.

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, 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1968 to January 1970.  

This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  The Board observes that this appeal derives from a distinct appeals stream, as evidenced by the December 2019 Statement of the Case (SOC) and May 2020 VA Form 8 Certification of Appeal.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018).

In the instant case, unfortunately, the Veteran died 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.  The Board is mindful of the Veteran’s honorable service and expresses sincere condolences to his family. 

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). 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Bodi, 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.