Citation Nr: 21012761
Decision Date: 03/05/21	Archive Date: 03/05/21

DOCKET NO. 07-20 736
DATE: March 5, 2021

ORDER

Entitlement to service connection for residuals of a neck injury is dismissed.

FINDING OF FACT

In November 2019, the Board was notified that the Veteran died in October 2019.

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 served on active duty from March 1970 to March 1975.

In October 2018, the Board issued a decision that denied the Veteran’s claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Unfortunately, the Veteran died during the pendency of the appeal. In June 2020, the Court was notified of the Veteran’s death. In July 2020, the Court ordered the Veteran’s representative, within 20 days, to provide a copy of the Veteran’s death certificate and show cause why the Board’s October 2018 decision should not be vacated and the appeal dismissed. The Veteran’s representative informed the Court that he had been unable to obtain a copy of the Veteran’s death certificate. Additionally, the Veteran’s representative informed the Court that there is no eligible accrued-benefits substitute and that he cannot show cause why the Board’s October 2018 decision should not be vacated and the appeal dismissed. The Court vacated the October 2020 Board decision and dismissed the appeal for lack of jurisdiction.

As a matter of law, appellants’ claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996). The appeals on the merits have become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction. See 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’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 appellant’s death. See 38 U.S.C. § 5121A (2012); 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; see 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).

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Cheng, 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.