Citation Nr: 21013202
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 18-07 517
DATE: March 9, 2021

ORDER

Entitlement to service connection for degenerative disc disease of the lumbar spine is dismissed.

Entitlement to service connection for anemia is dismissed.

Entitlement to service connection for a heart condition (also claimed as cardiovascular disease) is dismissed.

Entitlement to service connection for a pain disorder is dismissed.

Entitlement to service connection for a neurological disease with chronic pain is dismissed.

Entitlement to service connection for hypertension is dismissed.

Entitlement to a disability rating higher than 40 percent for service-connected polyuria due to diabetes mellitus is dismissed.

Entitlement to a disability rating higher than 20 percent for service-connected residuals of anterior tibial abscess with scars is dismissed.

Entitlement to a disability rating higher than 50 percent for service-connected posttraumatic stress disorder (PTSD) with depressive disorder, not otherwise specified (NOS), is dismissed.

Entitlement to a disability rating higher than 10 percent for service-connected type II diabetes mellitus is dismissed.

Entitlement to special monthly compensation (SMC) higher than the “SMC K” rate for loss of use of a creative organ is dismissed.

Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.

Entitlement to an effective date earlier than January 4, 2016, for adding J.V. as a dependent child and whether the May 31, 2018 removal of J.V. as a dependent was proper is dismissed.

FINDING OF FACT

On February 9, 2021, the Board was notified of the Veteran’s death that same month.

CONCLUSION OF LAW

Because of his death, 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

Unfortunately, the Veteran died during the pendency of this 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 Veteran’s death 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.

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 this appeal to completion. Such request must be filed not later than one year after the date of the Veteran’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 Veteran should file a request for substitution with the VA office from which the appeal originated. 38 C.F.R. § 3.1010(b).

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Mukherjee

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.