Citation Nr: 21013128
Decision Date: 03/08/21	Archive Date: 03/08/21

DOCKET NO. 19-33 442
DATE: March 8, 2021

ORDER

Entitlement to special monthly compensation based on aid and attendance is dismissed.

Entitlement to special monthly compensation based on housebound status is dismissed.

Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed.

FINDING OF FACT

The Board was notified by the Department of Veterans Affairs (VA) Regional Office that the appellant 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.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has active service from April 1966 to February 1968.

This case is before the Board of Veterans’ Appeals (Board) from June 2017 (TDIU) and September 2018 (special monthly compensation claims) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran appeared before the undersigned Veterans’ Law Judge at a September 9, 2020 hearing.

Unfortunately, the Veteran died in February 2021, during the pendency of the appeal (2/18/2021 VA 27-0820a Report of First Notice of Death). 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 Veteran 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 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.  See 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; 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).

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P. A. Myers

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.