Citation Nr: 21012566
Decision Date: 03/04/21	Archive Date: 03/04/21

DOCKET NO. 13-29 632
DATE: March 4, 2021

ORDER

Entitlement to service connection for a left eye disability is dismissed.

FINDING OF FACT

On January 11, 2021 the Board was notified that the Veteran died in January 2021.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the 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 military service from November 1950 to August 1952. 

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  Unfortunately, the Veteran died during the pendency of the appeal.

Entitlement to service connection for a left eye disability

(Continued on the next page)

 

As a matter of law, Veteran’s 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 the appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106.  The Board acknowledges the fact that the Veteran’s widow has applied to be substituted for the Veteran.  Specifically, in January 2021, the Veteran’s widow filed a VA 21-534EZ Form for Death Pension and Accrued Benefits, and also a VA 21-0847 Form for Request for Substitution of Claimant.  In February 2021, the RO notified the Veteran’s widow that the VA Form 21P-534EZ she submitted was outdated and no longer accepted, and that she had to complete the current version of the form, which was attached.  The Board notes that the RO did not make a decision on whether the Veteran’s widow was the appropriate substitute.  To date, a review of the claims file does not show that this decision has been reached.  VA regulations, 38 C.F.R. § 20.1302 (a), specifically requires the Board to dismiss pending appeals in which the appellant had died, pending a ruling on any substitution claim.  The Board may not adjudicate claims for substitution in the first instance.  As such, the Board has forwarded this appeal for a ruling on the substitution claim.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Saudiee Brown

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.