Citation Nr: 21012967
Decision Date: 03/08/21	Archive Date: 03/08/21

DOCKET NO. 20-08 604
DATE: March 8, 2021

ORDER

The appeals seeking entitlement to service connection for bilateral hearing loss and tinnitus are dismissed.

FINDING OF FACT

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

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of these appeals 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 in the United States Army from December 1965 to December 1967, including foreign service in France and Germany.  

Of note, the Veteran repeatedly attempted to claim service connection for a right knee disorder, and was repeatedly informed by VA that such a claim must be submitted on a standard form under the modernized review system.  38 C.F.R. §§ 3.155, 19.2.  Such a form was not received at any time; thus, there is no action to be taken in this respect.  See, e.g., purported claims dated May 2019 and January 2020; VA letters dated August 2019 and February 2020.

In February 2021, VA was notified that the Veteran had died earlier that same month.

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).  These appeals on their merits have become moot by virtue of the death of the Veteran 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; see also September 2020 contact report (reporting the death of the Veteran’s spouse).

The Board’s dismissal of these appeals 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).

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Upon the above, the appeals seeking service connection for bilateral hearing loss and tinnitus are hereby dismissed. 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Kovarovic, 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.